Government Liability Update

Ninth Circuit Rules Privately-Led Prayers Opening City Government Meetings That Mention Jesus Do Not Violate First Amendment

In Rubin v. City of Lancaster, published March 26, 2013, the Ninth Circuit Court of Appeals rejected a First Amendment challenge to a city's practice of inviting clergy from the community to lead prayers at the opening of city council meetings.  The plaintiffs argued that a majority of the prayer leaders were Christian, as were the council members, and that a prayer had mentioned Jesus.  After reviewing the history of case law on the subject, the court concluded that in light of the safeguards the city took (inviting prayer leaders without regard to their religion, and asking that they not attempt to proselytize or criticize other religions), neither the invocation of Jesus nor the fact that most of the speakers were Christian (a consequence of the city's demographics) amounted to unconstitutional establishment of religion.  In so ruling, it joined a divide between federal circuits on the subject.  It also ruled that the prayers did not violate the California Constitution.

Although Trial Court Hearing Administrative Mandate Petition Exercises Independent Judgment, It Cannot Ignore the Presumption the Agency's Fact-Finding or Credibility Decisions Were Correct, and Must Base Its Decision on the Entire Administrative Record

In San Diego Unified School District v. Commission on Professional Competence (Jespersen), published March 26, 2013, the Fourth District Court of Appeal, Division One, reversed a trial court decision granting a school district's petition for a writ of administrative mandate.  The school district had accused the teacher of unfitness to teach, based on accusations of inappropriate touching of students.  The teacher requested a hearing with the Commission on Professional Competence.  After a hearing, the Commission dismissed the accusation and statement of charges, finding that the evidence against the teacher was not credible.  On the district's petition, the trial court reversed the Commission's decision and affirmed the teacher's dismissal, on the ground that it found the evidence against the teacher credible.  The appellate court reversed the trial court, on the grounds that the trial court's decision disregarded the presumption of correctness that an administrative decision carries (even when the court applies an independent standard of review); the deference to the agency's credibility decisions that the Administrative Procedures Act requires; and the obligation to review the entire administrative record.  In light of the entire administrative record, the appellate court concluded, the trial court's findings were not supported by substantial evidence.

Attorney General May Bring Action on Behalf of City Against Allegedly Corrupt City Officials; No Claim to City Necessary

In People ex rel. Harris v. Rizzo, published March 20, 2013, the Second District Court of Appeal, Division Three, held that when it appears that a charter city (the City of Bell) is under the control of officials who are allegedly "looting the city's coffers for their own benefit," the state Attorney General may sue the officials on behalf of the city, to remove the city from their control and require them to pay restitution to the city.  The court further held that the Government Claims Act does not require the Attorney General to present a claim to the city before suing the officials; the AG is acting on behalf of the city, and the city need not file a claim with itself before suing its employees for acting outside of their employment.

Cause of Action for Equitable Indemnity against Public Entity Accrues when Cross-Complainant Served with Version of Complaint That Gives Rise to Cross-Claim

In Centex Homes v. Superior Court (City of San Diego), published March 25, 2013, the Fourth District Court of Appeal, Division One, interpreted the portion of Government Code section 901 that sets forth the date an equitable indemnity action against a public entity accrues.  The statute states that the time to present the claim starts running when a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity against the public entity.  The trial court ruled that the defendant's time to present the claim began running when the original complaint was served on the defendant, regardless of whether that complaint gave notice of a potential cross-claim against a public entity.  The appellate court reversed.  It held that the defendant's time to present a claim did not start running until it was served with an amended complaint that contained a theory that gave rise to a potential cross-claim against the city.

Property Owner Who Alleges City Staff Gave Prospective Tenants False Information About Him Permitted to Sue for Slander and Interference

In City of Costa Mesa v. D'Alessio Investments LLC, published March 11, 2013, the Fourth District Court of Appeal, Division 3, reversed in part a trial court order granting an anti-SLAPP motion against a property owner's cross-complaint.  The City sued the owner in nuisance, alleging acts of prostitution in massage parlors and the maintenance of medical marijuana dispensaries on the property.  The court issued preliminary injunctions in the case.  The owner cross-complained against the city and staff members for slander and intentional interference with prospective economic advantage, alleging that city staff had falsely told prospective tenants and others that the owner had been convicted of prostitution and drug-dealing, and other negative information.  The trial court granted the  anti-SLAPP motion.  The appellate court affirmed as to some of the cross-defendants, but reversed as to the city and one employee's statements that the owner had been convicted of crimes.

The appellate court concluded that the statements were not protected by Civil Code section 47's litigation privilege, because the comments did not function to advance the city's nuisance action.  With little analysis, the appelalte court declined to find that the statements were protected by Government Code section 821.6's prosecutorial immunity.  The court also ruled that Government Code sections 818.8 and 822.2's immunity for misrepresentations did not apply to causes of action based on reputational harm, such as slander and intentional inteference based on false statements to third parties.  It therefore permitted the owner to proceed with the cross-action against the city and employee.