Government Liability Update

Sixth District Court of Appeal Breaks with Other Courts; Holds Claim Received by Incorrect Recipient Substantially Complies with Claim Requirements

For the last 20 years (since Life v. County of Los Angeles (1991) 227 Cal.App.3d 894),several California Courts have held that a claim for damages to a public entity (or a document that would be treated as a claim, such as a Code of Civil Procedure section 364 notice of intent to sue in a medical malpractice case) does not substantially comply with the claims requirements , uness it is presented to a proper recipient listed in Government Code section 915 (generally, the clerk or secretary of the entity's governing body) or is actually received by that recipient within the claim-presentation period.

But DiCampli-Mintz v. County of Santa Clara, published May 26, 2011, departs from that rule. In DiCampi, the Sixth District Court of Appeal refuses to follow Life and its progeny, and holds that a CCP 364 notice that was delivered to a county hospital's risk management department (rather than to the county's board of supervisors) substantially complied with the claim requirements.

Because this case expressly disagrees with the previous cases, the California Supreme Court is likely to take it up on review.

Sending Administrative Record Via Overnight Courier Is Delivery, Not Mailing, for Purpose of Writ Filing Deadline

Under Code of Civil Procedure section 1094.6(d), if a petitioner requests an administrative record within 10 days after the date an administrative decision becomes final, the petitioner's statute of limitations for filing a petition for writ of administrative mandate is extended to the 30th day after the date the petition is either put in the mail or delivered.  In Blaich v. West Hollywood Rent Stabilization Dept., published May 24, 2011, the Second District Court of Appeal ruled that when the agency sends the administrative record by overnight courier (such as Federal Express), the administrative record is "delivered" rather than "mailed"; and the 30 days to file starts running when the record is received, rather than when it is put in the mail.

Whether this interpretation will be applied to other statutes of limitation that discuss delivery and mailing (e.g., Government Code section 945.6(a)(1)) remains to be seen.

Officers Do Not "Create" Exigent Circumstances When They Bang on Door and Loudly Announce Presence

In Kentucky v. King, published May 16, 2011, the U.S. Supreme Court reconciled lower courts' varying tests of when police officers "create" exigent circumstances that would otherwise justify entering a dwelling without a warrant.  If the officers "create" the exigent circumstances, those circumstances do not justify the warrantless entry.  The court majority concluded that if the officers act reasonably under the Fourth Amendment when the exigent circumstances arise, they do not "create" those circumstances to the degree that entry would violate the Fourth Amendment.  Thus, if police officers bang on an apartment door and loudly announce their presence and identity, they do not "create" the exigent circumstances of the sound of evidence possibly being destroyed inside the apartment.  If they threaten to enter without a warrant, however, they do "create" the exigent circumstance of resulting destruction of evidence.

Cities Have Police Power to Regulate Storage of RVs on Private Property for Aesthetic Reasons

In Disney v. City of Concord, published May 2, 2011, the First District Court of Appeal, Division 1, upheld as constitutional a city ordinance limiting storage of recreational vehicles on private property.  The ordinance forbade storage of RVs in driveways or front yards, but permitted their storage in side or back yards behind opaque fences.  The court held that the city had the police power to regulate aesthetics; and that the ordinance was within the city's discretion to pass.

School's Firing of Teacher for Posting Explicit Ad on Craigslist is Supported by Substantial Evidence

In San Diego Unified School Dist. v. Commission on Professional Competence, published May 3, 2011, the Fourth District Court of Appeal, Division 1, ruled that a trial court erred in upholding a commission ruling that a school district improperly fired a teacher who posted an explicit ad (including nude photos of himself) on Craigslist.  The respondent Commission ruled that no substantial evidence supported the district's decision that the teacher showed evident unfitness for service and immoral conduct as defined by the Education Code.  The appellate court concluded that no substantial evidence supported the Commission's ruling, because the ad, a student's and parent's discovery of it, and the administration's loss of confidence in the teacher as a result, established evident unfitness and immoral conduct, both grounds for dismissal.  The court ruled that the trial court should have granted the district's petition for administrative mandate.

County Ordinance Banning Gun Shows on County Property Does Not Violate Second Amendment, First Amendment, or Equal Protection

In Nordyke v. King, published May 2, 2011 (and the latest appellate opinion in a case that has resulted in multiple opinions from the Ninth Circuit), the Ninth Circuit ruled that in light of the Second Amendment jurisprudence from the U.S. Supreme Court in the last three years, a county ordinance that banned gun shows on county property was constitutional.  The court held that heightened scrutiny applies to a gun ordinance that substantially burdens the use of handguns for self-defense.  Because this ordinance left other legal avenues for citizens to obtain handguns, it did not substantially burden that activity; and because it had a rational basis, it was valid under the Second Amendment.  The court granted plaintiffs leave to amend the complaint to attempt to state a claim under the Second Amendment jurisprudence that had issued while the case was on appeal.

The court rejected the plaintiffs' first amendment and equal protection attacks on the ordinance, both targeted toward the exception in the ordinance allowing military battle reenactors to carry guns on county property.  Under both attacks, the ordinance was scrutinized for a rational basis; and because it had a rationale basis it was constitutional.

 

Court Awarding Attorney Fees against Public Entity Defendant May Not Use Entity's Financial Condition or Plaintiff's Pro Bono Representation as Negative Multipliers

In Rogel v. Lynwood Redevelopment Agency, published May 2, 2011, the Second District Court of Appeal, Division 8, reversed as miscalculated a private-attorney-general attorney fee award against the defendant redevelopment agency.  The appellate court held that in applying a lodestar analysis to the fee award, the trial court erred in reducing the award on the ground that it would be “better” for less money to be paid to the prevailing parties for their attorneys' fees so as to leave the agency with more money for its ongoing governmental operations.  The appellate court also faulted the trial court for reducing the award on the ground that much of the plaintiffs' attorneys' work was done pro bono.