Government Liability Update

New Protection for Government Employers

In Garcetti v. Ceballos (May 30, 2006) 547 U.S. __, the U.S. Supreme Court has ruled that public employees do not enjoy First Amendment protections for communications made in the scope of their official duties. 

Ceballos was a calendar deputy for the District Attorney's office.  It was undisputed that part of his job was to review defense attorneys' motions to challenge warrants; and write disposition memos about those motions to his department.  Ceballos prepared one such memo that argued a deputy's warrant affadavit contained misprepresentations.  He recommended that the prosecution relating to the warrant be dismissed.  He alleged that the DA's office retaliated against him for the memo.  The Ninth Circuit concluded that the First Amendment protected his speech, based on his complaint's allegations.

In a 5-4 decision, the Supreme Court reversed:

"We hold that when public employees make
statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications
from employer discipline."

The test is whether the statement was one that was part of the employee's official duty.  It makes no difference that the employee subjectively felt he was acting as a citizen when he spoke.

The court expressly declined to decide whether and how their rule applies to teachers and professors.

Important New Delayed-Discovery Claim Case

V.C. v. Los Angeles Unified School District (2nd DCA May 15, 2006) should prove to be a useful case for public entities asserting claim-timeliness defenses -- if the Supreme Court allows it to stand.

V.C. is a minor.  She alleges that one of her middle-school teachers sexually molested her from 2001-2003, while she was ages 11-13.  In 2003, V.C.'s mother notified the school in wriitng that she was worried about her daughter's safety around the teacher.  The teacher was arrested in August 2003, and later convicted and imprisoned for molesting V.C.  In September 2004 -- over a year after the arrest -- V.C. presented a claim for damages against the school district.  In October 2004, she filed an application for leave to present late claim.  When the District rejected the application, she filed a petition for relief with the court (which the court granted) and a lawsuit. 

The trial court sustained the District's demurrer to the lawsuit on the ground that V.C.'s petition should never have been granted.  The appellate court affirmed.

The ruling is important for the following reasons:

-- It holds that a trial court order granting a late-claim petition under Government Code section 946.6 does not foreclose the public entity defendant from raising the claim defense in the main case.  (Although the appellate opinion doesn't articulate this, the likely reason is that courts have no jurisdiction to hear a section 946.6 petition if the application was not filed within one year of accrual -- which the court found here.  The court cited City of Los Angeles v. Superior Court (1993) 14 Cal.App.4th 621, where a demurrer was sustained because the plaintiff's late-claim petition was filed late.  Whether the court could entertain a claim-based demurrer after a petition was granted -- and both the application and petition were timely -- is unclear.)

-- It agrees with another 2nd DCA case, County of Los Angeles v. Superior Court (N.L.) (2005) 127 Cal.APp.4th 1263, which held that Code of Civil Procedure 340.1 -- which holds that minors have until eight years after their eighteenth birthday to sue for childhood sexual molestation -- does not apply to suits against public entities.  This court and N.L. ruled that section 340.1 does not set a date of accrual (which would apply to the deadline to present a claim against a public entity); instead, it is a statute of limitations (which is superseded by the claim-presentation limitations under the Government Code).

Note that the issue of whether section 340.1 is a statute of limitation or an accrual standard is currently before the California Supreme Court in Shirk v. Vista Unified School Dist.  Shirk, a 4th DCA, Division One, case, held that section 340.1 was an accrual standard, and therefore extended the time to present a claim against a public entity. 

Since the Supreme Court did not grant review of N.L., that case, not Shirk, is currently the law.  Nevertheless, the Supreme Court might take up review of V.C. on this issue.

-- The court held that the child's cause of action accrued no later than the date her parents suspected the teacher of wrongdoing that injured V.C.  Here, the mother obviously suspected the teacher of wrongdoing when she complained to the school district about him.

-- Finally, the court held that the teacher's threats to V.C. could not equitably estop the district from asserting the claim defense.  The threats could only estop the district if they prevented V.C. from presenting a timely claim.  V.C. disclosed the threats to police in an August 2003 interview.  The threats therefore did not prevent her from disclosing the molestation -- and presenting a timely claim -- in the six months after August 2003.