Government Liability Update

A Plaintiff May Obtain Attorney Fees under 42 U.S.C. section 1988 for Work Done by the Plaintiff's Attorney Spouse

In Rickley v. County, published August 19, 2011, the Ninth Circuit Court of Appeals ruled that a plaintiff is entitled to claim attorney fees under 42 U.S.C. section 1988 for work on civil rights cases performed by the plaintiff's attorney spouse.  The court held that authority denying attorney fees to pro se plaintiffs, and to attorney-parents who represent their children in special education cases, did not apply to attorney-spouses as a category.  The court further ruled that determining whether an attorney with a particular relationship to the plaintiff is sufficiently independent and detached for fee purposes should be done categorically, rather than situation-by-situation.

Claim Deadlines Apply to Entity-Imposed Claim Requirements for Claims Presented by Other Public Entities

City of Industry v. City of Fillmore, published August 10, 2011, involved a suit by one city against another over alleged diversion of sales tax from one city to another.  The trial court sustained the defendant's demurrers without leave to amend, in part on the ground that the plaintiff city failed to present a timely claim under the claim process imposed by the defendant city's municipal code.  The Second District Court of Appeal reversed the ruling.  Under Government Code section 905, suits of one public entity against another are exempted from the Government Claim Act's procedures.  Entities can create their own claims procedures for such claims, but the claim deadlines under them cannot be shorter than those under the Government Claim Act.  Under the facts, the date of accrual of the claims, and thus the claims' timeliness, was an issue of fact that could not be resolved on demurrer.  The court therefore erred by sustaining the demurrer on that ground.

Recreational Trail Immunity Applies to Mixed-Use Trail

In Hartt v. County of Los Angeles, published August 4, 2011, the Second District Court of Appeal affirmed summary adjudication of a dangerous condition cause of action in favor of the County.  The case arose out of the collision between the decedent's bicycle and a county maintenance vehicle on a county trail that was closed to through traffic, used mainly for recreational purposes, and also occasionally used for maintainance vehicles.  The appellate court held that such mixed or dual use does not overcome the Recreational Trail Immunity, Government Code section 831.4.  Since the undisputed evidence established that the trail was used for recreational purposes, the trial court properly granted summary adjudication of the dangerous condition cause of action.  The appellate court relied in part on the plaintiffs' opening statement in the post-adjudication trial, in which the plaintiffs' counse referred to the trail as a recreational trail.  

The appellate court also affirmed the jury's conclusion in the subsequent trial that the driver of the county vehicle was not negligent. 

9th Circuit Redefines IDEA's Exhaustion Requirement for Claims Arising out of Special Education

In W.P. v. Peninsula School Dist., published July 29, 2011, the Ninth Circuit Court of Appeals, sitting en banc, overruled previous Ninth Circuit cases interpreting the administrative-remedy exhaustion requirement set forth in 20 U.S.C. section 1415(l) of the Individuals with Disabilities Education Act.  The Ninth Circuit previously interpreted the exhaustion requirement as jurisdictional, and determined whether it applied by considering whether the plaintiff's injury was caused by loss of rights protected by IDEA.  In W.P., the court decided that the exhaustion requirement is not jurisdictional; it is an affirmative defense, which can be waived or forfeited if the defendant does not assert it soon enough. 

It further rejected the injury-based analysis for determining which claims are subject to the exhaustion requirement.  Since the statute requires exhaustion for relief that would have been available under the IDEA, the court limited exhaustion to prayers for relief that seek relief that would be available under the IDEA.  The court identified three such prayers:  When a plaintiff seeks IDEA relief or its functional equivalent (e.g., damages under the ADA for costs of private school education because the school does not accommodate a disability ); where a disabled student seeks prospective relief to alter an individual education plan or educational placement; and where the disabled student seeks to enforce rights that arise out of a failure to provide a free and appropriate public education, whether pled as an IDEA claim or any other claim.

Where a plaintiff seeks only damages, the court is not to speculate that the damages could go only to pay for remedies that the IDEA provides.  Instead, if the measure of the plaintiff's damages is the cost of counseling, tutoring, or private schooling; if the student sues under the Equal Protection Clause for damages for failure to provide specialized programs for disabled students; or if the damages are to compensate for costs associated with altering a disabled student's educational placement.  To the extent the money damages substitute for IDEA relief, exhaustion is required.

The court held that defendants should assert the failure to exhaust in a nondenominated Rule 12 motion to dismiss without prejudice.  If the district court does not grant such a motion, and it later determines that the plaintiff should have exhausted administrative remedies, at trial the fact finder should be permittted to determine which remedies are unexhausted and available under the IDEA, and withhold them.