Government Liability Update

Ninth Circuit Holds Civil Rights Fee Award Must Be Adjusted Downward for Limited Success

In McCown v. City of Fontana, published April 24, 2009, the Ninth Circuit hods that when a district court judge awards a plaintiff fees under 42 USC section 1988 for success in a 42 USC section 1983 lawsuit, the judge must reduce the amount sought if the plaintiff obtained limited success and did not confer a substantial benefit on the community through that success (such as a change in government policy).  For instance, in this case, where the plaintiff demanded over $200,000 but settled the suit for $20,000, a reduction of fees was mandatory.

Ninth Circuit Rules That RIght to Bear Arms Applies to State Regulations; But Permits Regulation of Gun Shows on Public Property(Update)

Nordyke v. King, published April 20, 2009, explores the effect of last year's U.S. Supreme Court decision District of Columbia v. Heller on local government regulation of firearms.  Heller determined that the Second Amendment Right to Bear Arms applied to individuals.  Nordyke holds that the due process clause of the 14th amendment applies that right to the states.  But it also holds that local governments can reasonably regulate the right to bear arms on public property.  It therefore upheld a county ordinance that barred people from carrying firearms and ammunition on county property, except for certain entertainment purposes -- even if that had the incidental effect of banning gun shows on county property.  It also upheld the ordinance against First Amendment and Equal Protection challenges.

UPDATE:  On July 29, 2009, the Ninth Circuit voted to rehear this decision en banc.  The three-judge-panel decision described above cannot be cited as precedent.

Split in Authority on When Suits against Public Entities for Childhood Molestation Accrue (Update)

In K.J. v. City of Arcadia, published April 7. 2009, Division 3 of the Second Appellate District held that when a person over 18 sues a public entity for sexual abuse when the person was a minor, accrual is governed by CCP 340.1's accrual standard:  Accrual therefore occurs "the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the date of majority was caused by the sexual abuse,"

 

The court thus held that the plaintiff's cause of action for her teacher's alleged relationship with her when she was 15 did not accrue until the plaintiff, as an adult, allegedly realized in therapy that the relationship was wrong and had injured her.

 

The court also held that neither the victim's mother's discovery of the alleged relationship nor the accused perpetrator's arrest triggered accrual.  It held the parent's discovery of the alleged wrongdoing relevant to accrual only if the discovery occurs when the alleged victim is a minor.

 

The court acknowledged that its ruling conflicts with that of another division of the Second District, V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, in which the court held the alleged victim's cause of action accrued no later than the molester's arrest.  This split in authority may eventually be resolved by the California Supreme Court.

 

The opinion also discusses the standards for estoppel and pleading in relation to the claims requirements.

 

UPDATE:  On July 15, 2009, the California Supreme Court declined to review the decision.