Government Liability Update

School Administrators May Ask Students to Remove Clothing Bearing American Flag to Avoid Threat of Violence or Disruption

In Dariano v. Morgan Hill Unified School Dist. , published February 27, 2014, the Ninth Circuit Court of Appeals affirmed summary judgment in favor of an assistant principal in a lawsuit under 42 U.S.C. section 1983 alleging that he had violated the plaintiff high school students' First Amendment, Equal Protection, and Due Process rights.  On the day of a Cinco de Mayo celebration at the school, a group of students wore American flag shirts to the school. There was a history of violence at the school, some gang-related and some along racial lines. At the previous year's Cinco de Mayo celebration, there had been confrontations between students flying a makeshift American flag and students celebrating the holiday.  School officials were concerned about the safety of the flag-wearing students.  The principal asked them to turn their shirts inside-out or take them off.  Some of the students declined.  The vice-principal told the students of his safety concerns.  School officials offered to allow the students who declined to change their shirts to go home, without the absence counting against their attendance records.  None of the students were disciplined.

The Ninth Circuit rejected the students' argument that the school officials had violated the students' First Amendment right of free expression.  To justify prohibition of a certain kind of expression, school officials must be able to show that their action was caused by something more than avoiding an unpopular viewpoint.  Officials may prohibit forms of expression that they reasonably forecast would cause disruption of school activities or collide with the rights of other students.  Here, the officials acted reasonably in response to their concerns that the shirts might trigger violence or disruption of school activities, based on past experiences.  The officials did not punish the students for wearing the shirts.  The officials did not violate the students' equal protection rights, because there was no showing that students wearing other types of flags on their shirts were at risk for violence.  The court also rejected the students' argument that the school district's dress code, which prohibits clothing that creates a safety hazard or disrupts school activities, violated due process by lacking objective standards.

Minor Who Applied for Late Claim Relief More Than a Year after Latest Possible Date of Accrual Cannot Obtain Late Claim Relief

In J.J. v. County of San Diego, published February 14, 2014, the Fourth District Court of Appeal, Division One, affirmed a trial court decision denying a minor plaintiff's petition under Government Code section 946.6 for relief from the Government Claims Act's claim-presentation requirements. The trial court concluded that it had no jurisdiction to grant the petition, because the minor failed to apply to the county within a year of accrual for leave to present a late claim. The minor alleged that her foster father molested her in 2009.  She contended the county's negligence caused the molestation.  She alleged that her cause of action against the county accrued no earlier than March 2012, when her counsel obtained a January 2011 investigator's report; and that her May 2012 claim and late-claim application to the county was therefore timely.  

The appellate court disagreed.  The date of accrual was crucial to the petition.  If the minor's cause of action accrued in March 2012, then her May 2012 claim was timely, and she had no need for late-claim relief.  But if the date of accrual was more than a year before May 2012, the court had no jurisdiction to grant her relief.  A child molestation cause of action generally accrues at the time of the molestation, although it may be delayed under the delayed-discovery doctrine until there is both knowledge of injury and suspicion it was caused by wrongdoing.  Whether that doctrine applies, and whether it is triggered by the minor's knowledge of injury or the parents' or guardians' knowledge, is a circumstance-intensive question.  Here, the evidence showed the minor was aware of the molestation in 2009 and disclosed details to police and her parents in December 2010.  Even assuming accrual was delayed until her parents suspected she was injured through wrongdoing, the cause of action accrued no later than March 2011, when her parents testified at the foster father's sentencing hearing.  At that point, they were indisputably aware of injury, causation, and harm.  Her claim and application were more than a year after that date, barring relief.  The later report that, she contends, gave notice the county was responsible for the molestation did not affect accrual.

The court rejected the minor's argument that her foster father's threats estopped the county from asserting the late-claim defense.  The father was not a county agent or employee; and in any event his threats did not prevent her from reporting the molestation to the police.  It also rejected the argument that neglect in presenting the claim was excusable; excusable neglect is irrelevant if the application is filed more than a year after accrual.

No "Equitable Principles" Exception to the Government Code's Restrictions on Public Entity Liability

In Tuthill v. City of San Buenaventura, published February 10, 2014, the Second District Court of Appeal, Division Six, reversed a trial court's award of damages against a city for allegedly failing to disclose affordable housing restrictions that applied to townhouses the plaintiffs bought.  The city had entered into a development agreement with a developer regarding a a new townhome complex.  The principle purpose of the development agreement was to provide affordable housing, in accordance with the Density Bonus Law, Government Code sections 65580 et seq.  Due to a misunderstanding, townhouses designated as low-income housing, with restricted prices, were sold to buyers (including the plaintiffs) who were not low-income, and at higher prices than permitted.  The plaintiffs therefore found themselves owning units that were worth less than what they paid.  They sued the city for declaratory relief, negligence, and negligence per se/violation of statutory duty.  The trial court ruled that the case was controlled by "equitable principles" rather than Government Code section 815's restrictions on public entity liability.  It awarded damages to the plaintiffs for overpaying for their properties, and attorney fees under the Private Attorney General statute.

The appellate court ruled that the trial court erred in concluding that "equitable principles" governed the lawsuit.  Equity may not be used to find liability where the result would nullify a contrary statute.  The Government Claims Act creates a comprehensive statutory scheme regarding government liability and immunity.  Courts are not free to graft equitable exceptions onto the Act.

The key question was therefore whether an enactment created a mandatory duty that the City violated, creating liability under Government Code section 815.6.  The appellate court concluded that none of the statutes or other enactments created a mandatory duty to do anything that the city did not do.  It particularly rejected the argument that either the development agreement or the ordinance approving it created such a mandatory duty.  The agreement was not an enactment, and the ordinance did not direct anything more than that the agreement would be approved.  Ruling otherwise would make violation of a contract actionable in tort.  The court vacated the attorney fee award.

Non-Resident of City Lacks Standing to Challenge City's Spending of Sales Tax

In Reynolds v. City of Calistoga, published February 3, 2014, the First District Court of Appeal, Division Five, affirmed the dismissal on demurrer of a suit challenging the defendant city's use of Napa County sales tax revenue.  He sought to make the sales tax revenue available to settle a separate suit he had brought challenging operation of a reservoir.  He was not a resident of the city or the county, and did not pay taxes there apart from sales tax.  The trial court sustained the city's demurrer, on the ground that the plaitniff lacked standing to bring the suit.  He did not qualify for taxpayer standing, because paying sales tax is insufficient ground for that standing.  He did not qualify for standing as a citizen suing in the public interest; that is a discretionary exception to the beneficial-interest standing requirement for writ relief, and he did not petition for a writ.  He also did not show that he had standing as a person suing to protect a public trust.