Government Liability Update

Public School Employees May Make Claims under Minimum Wage Law, and Sue for Breach of Contract, but May Not Sue for Quantum Meruit

In Sheppard v. North Orange County Regional Occupational Program, published December 23, 2010, the 4th District Court of Appeal, Division 3, ruled that the minimum wage law imposed by the Industrial Welfare Commission‟s (IWC) wage order No. 4-2001 (title 8, section 11040 of the California Code of Regulations) applies to California public school district employees, as employees of a subdivision of the state.  The court further ruled that although public employment is held by statute, the contract clause of the California Constitution (article I, section 9) protects a public employee's rights to payment of salary that has been earned.  A public employee may therefore have a breach of contract claim for wages required by the minimum wage law but not paid.  (The court did not decide whether the plaintiff in Sheppard had successfully pleaded such a case.) 

But the court agreed with the trial court that the plaintiff could not assert a quantum meruit cause of action for the wages.  Government Code section 815 bars common-law causes of action against public entities.  Quantum meruit is a common-law cause of action.

Mobilehome Park Owners Who Buy Park While Rent Control in Place Cannot Bring Facial Challenge against Rent Control Ordinance as Taking

The December 22, 2010 Ninth Circuit decision in Guggenheim v. City of Goleta is an en banc decision addressing a 2009 opinion that held a rent control ordinance may effect a taking if it imposes rent control after a tenant sells a unit in the park, but allows the selling tenant to charge a higher price due to the rent control.  The theory is that this result transfers money from the owner (who can't charge the higher price) to the selling tenant (who can), without promoting the goal of rent control -- affordable housing.

The majority held that because the owners bought the park while the challenged rent control was in place, the owners could not argue that the rent control effected a taking by interfering with reasonable investment-backed expectations.  It also ruled that the ordinance had a rational basis, and so survived facial equal protection and substantive due process challenges.

The dissent argues that existing U.S. Supreme Court authority allows owners to bring a regulatory takings action even if the regulation was in place before the owners bought the property.  The dissenting judges reject the majority's argument that the precedent applies only to as-applied takings.  The dissent also argued that the ordinance effected a taking due to the transfer of capital.

 

City Council Meeting Attendees Have First Amendment Rights Throughout the Meeting, Not Just During Public Comment Period

In Norse v. City of Santa Cruz, published December 15, 2010, an en banc panel of the Ninth Circuit reviewed a district court's decision to grant a sua sponte summary judgment to a city, its city council, and a police officer in a suit arising out of the plaintiff's ejection from a city council hearing for giving a Nazi salute. As the dissent points out, the incident was captured on video:

The en banc court held that the trial court erred in granting sua sponte summary judgment without providing notice to the parties or allowing them to put evidence into the record. It ruled that the council members were not entitled to absolute legislative immunity, because they were not acting in a legislative capacity in ejecting the plaintiff. It also rejected the city's argument that council meeting attendees have no First Amendment speech rights when attending meetings, except during the public comment portion of the meeting. The court did, however, affirm the trial court's grant of summary judgment to the officer who escorted the plaintiff out. It held that a reasonable officer could have believed under the circumstances that the officer had probable cause to eject the plaintiff. The officer was therefore entitled to qualified immunity.

Police Agency Does Not Violate Officer's Constitutional Rights by Discharging Officer for Fraternizing with Prostitute

In Bautista v. County of Los Angeles, published December 6, 2010, the 2nd District Court of Appeal, Division 7, affirmed trial court decisions denying a former sheriff's deputy's writ petition challenging his discharge, and granting the county summary judgment in the plaintiff's 42 U.S.C. section 1983 action.  The sheriff's department discharged the plaintiff because of the plaintiff's friendship with a known prostitute and heroin user, whom the plaintiff later married.  The friendship violated the department's policy on fraternization with persons who have open and notorious reputations for criminal activity.  The court held that the policy was not unconstitutionally vague; and that the discharge did not violate the officer's constiutional rights of association and privacy.  The court noted opinions from the around the country that have reached similar conclusions.

Social Worker Entitled to Qualified Immunity for Possibly Fabricating Evidence in Administrative Proceeding

In Costanich v. DSHS, published December 3, 2010, the Ninth Circuit held that a social worker accused of fabricating and filing false information in an administrative proceeding to revoke a couple's foster parent license was entitled to absolute immunity for instituting the proceeding, but not for investigating the matter and compiling the evidence.  The court also concluded that the evidence raised triable issues of fact about whether the worker fabricated evidence; and that deliberately fabricating evidence in civil child abuse proceedings violates the Due Process clause of the Fourteenth Amendment when a liberty or property interest is at stake.  The court found the social worker was entitled to qualified immunity, however, because at the time of the acts at issue the plaintiffs' constitutional right to be free from fabricated evidence in an administrative foster license proceeding was not clearly established.  The court advised that after this opinion, that right is clearly established.

Accepting Informal Probation in Juvenile Court Is Not Favorable Termination of Criminal Charges for Purposes of Civil Suit Against Police

In Lujano v. County of Santa Barbara, ordered published December 3, 2010, the Second District Court of Appeal, Division Six ruled that lack of favorable termination of a Penal Code § 148 charge (for interfering with police officers) against a minor, filed in juvenile court, precluded the minor from suing the officers under 42 U.S.C. § 1983 and state law for use of excessive force in her arrest.  The minor avoided formal proceedings on the charge by agreeing to informal probation under Welfare & Institutions Code § 654.  Heck v. Humphrey (1994) 512 U.S. 477 and Yount v. City of Sacramento (2008) 43 Cal.4th 885 bar civil actions arising out of arrests unless the plaintiff received a favorable termination of criminal charges arising out the incident.  Accepting informal probation is not a favorable termination.

 The court also held that the plaintiff could not sue an officer who did not participate in the use of force for violating her civil rights through inaction.  An officer present during a civil rights violation is liable only if the officer participates in it or is aware of the violation in time to stop it.
The undisputed facts established that the officer had no information that excessive force was being used at the time the minor was arrested.

Education Code Section Requiring PE Instruction Imposes Enforceable Mandatory Duty

In Doe v. Albany Unified School Dist., published November 30, 2010, the Third District Court of Appeal concluded that Education Code § 51210(g), which provides that courses for elementary school students shall include not less than 200 minutes each 10 school days of physical education, created a mandatory duty that elementary school students and their parents may enforce by petitioning for a writ of mandate.  The appellate court reversed a demurrer sustained against the plaintiffs’ complaint, to allow them to amend the complaint to address exhaustion of administrative remedies.