Government Liability Update

Public Entity May Recover Reasonable Attorney and Paralegal Fees Incurred Preparing an Administrative Record

In The Otay Ranch, L.P. v. County of San Diego (Flat Rock  Land Co., L.L.C.), published September 29, 2014, the Fourth District Court of Appeal, Division 1, affirmed an award to the respondent county of costs -- including the fees of outside counsel and its paralegals -- for preparing an administrative record for the petitioner's CEQA-related petition for writ of mandate.  The petitioner agreed to prepare the administrative record, but failed to do so for months.  The county then offered to prepare the record, and asserted that the petitioner would be responsible for paying the costs of preparation.  The petitioner did not object.  Because the county department responsible for maintaining the files did not have the manpower or resources to prepare the record, the outside law firm representing it in the litigation prepared the record.  The complexity and scope of the 18,000 page record required the attorney's personal involvement.  One day after it was filed and served, the petition was dismissed.  The trial court concluded that attorney and paralegal fees for preparing the record were part of the cost awardable to the county for the record's preparation.

The appellate court ruled that the trial court acted within its discretion.  Code of Civil Procedure section 1094.5 provides that the cost of preparing the record shall be borne by the petitioner, and that if borne by the prevailing party, the expense is taxable as costs.  Section 1094.6 provides that the agency may recover from the petitioner its actual costs for preparing the record.  In petitions alleging CEQA violations, Public Resources Code section 21167.6 requires payment of any reasonable costs or fees imposed for preparation of the record in conformance with any law.  The trial court properly determined that the attorney and paralegal fees were part of the reasonable and necessary costs the petitioner had to pay, and not an impermissible award of attorney fees.

Despite Ambiguity in Government Claims Act, Receipt of Claim against Court by Victim's Compensation and Government Claims Board Does Not Satisfy Claim-Presentation Requirement

In Judicial Council of California v. Superior Court (Bean), published September 16, 2014, the Second District Court of Appeal, Division 5, granted a writ petition directing that the Judicial Council's summary judgment motion be granted, and resolving an ambiguity in the Government Claims Act regarding receipt of claims against judicial entities.  The plaintiff allegedly sustained injuries in an elevator in a Los Angeles Superior Court courthouse elevator.  Her attorneys presented a claim for damages to the Victims Compensation and Government Claims Board of the State of California.  The defendant Judicial Council of California, which operates California state courts, moved for summary judgment on the ground that the plaintiff had never presented a claim to the Secretariat of the Judicial Council.  The plaintiff argued that under subdivision (e) of Government Code section 915, actual receipt of a claim at an office of the Victim Compensation and Government Claims Board established compliance with the claim-presentation requirement.

The appellate court acknowledged that subdivision (e) is ambiguous.  It states that a claim shall be deemed to have been presented in compliance with section 915 if "any of the following apply."  It separately lists the option of "It is actually received at an office of the Victim Compensation and Government Claims Board" (subd. (e)(2) and, "If against a judicial branch entity or judge, it is actually received by the court executive officer, court clerk/administrator, court clerk, or secretariat of the judicial branch entity." (Subd. (e)(4).) The subdivision could be reasonably interpreted to mean either that actual receipt  by the Victim Compensation and Government Claims Board of a claim against a court suffices; or that the claim must be presented to a body listed in subdivision (e)(4).  After reviewing legislative intent materials, the court concluded that the claim must actually be received by one of the recipients listed in subdivision (e)(4).  Because none of those prescribed recipients received the claim within the claim period, the Judicial Council was entitled to summary judgment.

Police Officers May Violate Suspect's Due Process Rights by Withholding Exculpatory Evidence from Prosecutors, Causing a Lengthy Post-Arrest Detention

In Tatum v. Moody, published September 17, 2014, the 9th Circuit affirmed a jury verdict in favor of a man who was held after arrest for 27 months on suspicion of committing multiple robberies, against police officers who withheld exculpatory evidence from the prosecutors in the case.  After the plaintiff was arrested, robberies with the same modus operandi as those the plaintiff was suspected of committing occurred, and a suspect was arrested for those robberies.  The officers did not reveal to prosecutors that another suspect had been arrested.  Instead, they announced in their reports that their arrest of the plaintiff had ended the spree of robberies.  After two preliminary hearings, prosecutors finally learned of the second suspect, and that his fingerprints matched those on evidence from a robbery of which the plaintiff was accused.  The prosecutors immediately dropped the charges against the plaintiff, who was later found factually innocent.  The 9th Circuit held that the plaintiff stated a cause of action for violation of the 14th Amendment Due Process Clause, because his due process right to liberty was infringed by his lengthy imprisonment based on the officers' deliberate indifference to his rights.  The court limited the constitutional rule it announced to detentions of unusual length, caused by the investigating officers' failure to disclose highly exculpatory evidence to prosecutors, and due  to conduct that is culpable because the officers understood the risks to the suspect's rights from withholding the information or were deliberately indifferent to those risks.

ADA Requires Public Entities to Ensure Public Facilities Are Reasonably Accessible to Disabled Persons, Even if Technical Specifications for Particular Facilities Have Not Yet Been Adopted

In Fortyune v. City of Lomita, published September 5, 2014, the 9th Circuit affirmed a district court decision denying a motion to dismiss a lawsuit against the defendant city under the Americans with Disabilities Act.  The plaintiff alleged that the city had failed to make its on-street diagonal-stall parking accessible to persons with disabilities.  The city argued that absent adoption of ADA implementing regulations specifically targeting on-street parking, it was not required to provide accessible on-street parking.  The 9th Circuit rejected that argument.  It held that lack of specific regulations cannot eliminate a statutory obligation.  Further, the existing regulations applying the ADA to existing public facilities and to those built after the ADA's effective date govern all public facilities -- and thus apply to on-street parking provided by public entities.  That is the DOJ's interpretation of its regulations, and that interpretation is entitled to great weight.  The lack of official technical requirements under the ADA for the design of on-street parking does not eliminate the requirement that on-street parking be reasonably accessible to disabled persons.  Public entities must ensure that all normal government functions are reasonably accessible to disabled persons, whether or not the DOJ has adopted technical specifications for the particular types of facilities involved.

Senior Mobilehome Park Owner Allegedly Subjected to Improper Delays and Conditions to Discourage It from Becoming Family Park Has Standing to Sue under Fair Housing Act

In El Dorado Estates v. City of Fillmore, published September 2, 2014, the 9th Circuit Court of Appeals reversed dismissal of a lawsuit brought by a mobile home park owner against a city under the Fair Housing Act.  The plaintif operated the partk as a senior rental park, renting to residents who are 55 or older.  The owner publicly discussed opening the park to families in response to a rent control ordinance.  Instead, it decided to leave the rental mobilehome park business by subdividing the park into lots to sell to residents. The owner alleges that the city subjected the subdivision application to improper delays and conditions that, the park alleged, were intended to discourage the park's conversion from a senior park to a subdivided park open to families.  The district court dismissed the suit, concluding that the park owner lacked standing under Article III of the U.S. Constitution because it had failed to show an injury in fact under the Fair Housing Act.

The 9th Circuit ruled that El Dorado did have constitutional standing.  Standing requires an invasion of a legally protected interest that is both concrete and particularized, and actual and imminent.  The injury must also be fairly traceable to the defendant's allegedly unlawful conduct, and redressable if the requested relief is granted.  Under the FHA, an organization may have standing to bring a suit on its own behalf, without being among the class discriminated against.  Here, the alleged injury is the expense incurred through the unreasonable delays and extralegal conditions, allegedly intended to discourage the owner from opening the park to family housing.  The injury is fairly traceable to the city's alleged conduct, and is redressable by damages.

CCP 1038 Sanctions Cannot Be Awarded Against Attorneys, but Can Be Granted by Different Judge Than the One Who Granted Summary Judgment

In Suarez v. City of Corona, published August 29, 2014, the Fourth District Court of Appeal, Division 1, reversed in part and affirmed in part an award of defense-fee sanctions under Code of Civil Procedure section 1038.  The plaintiff and his counsel maintained an action against the defendant city arising out of the explosion of a compressed natural gas tank in a van in which he rode, while the tank was being filled at a city-owned filling station.  He contended that the city maintained a dangerous condition of public property.  Discovery turned up no evidence of a dangerous condition, as well as evidence that factors unrelated to the city caused the explosion.  The plaintiff rejected demands to dismiss the city, or to provide a theory of liability against the city.  The city won summary judgment.  It then moved for defense fees under section 1038.  Although the judge who granted summary judgment was available, a commissioner heard the motion.  Neither party objected to the commissioner presiding over the motion.  The commissioner awarded defense fees of over $100,000 against the plaintiff and his counsel.

The appellate court reversed the award of fees against the plaintiff's counsel.  It agreed with the recent decision in Settle v. State of California (2014) 228 Cal.App.4th 215 that section 1038 cannot be interpreted to provide for awards of attorney fees against counsel.  It upheld the award against the plaintiff in full.  It rejected the argument that the commissioner had no jurisdiction to hear the motion.  Although a section 1038 motion must be heard by the same judge who granted summary judgment unless that judge is available, parties may stipulate to a commissioner hearing a matter, and the stipulation may be inferred form counsel's conduct.  Plaintiff's counsel could not wait until after the commissioner ruled against him to object to the commissioner hearing the matter.  The appellate court, reviewing the finding of lack of reasonable cause de novo, agreed with the commissioner's finding that the suit against the city lacked reasonable cause.  It rejected the argument that to provide due process the motion for sanctions had to be noticed to be heard at the same time as the summary judgment motion.  The motion need only be filed at the earliest practical time before the entry of judgment.

A Guilty Plea Is Not a Contract with the Prosecuting County

In Brown v. County of Los Angeles,  published August 29, 2014, the Second District Court of Appeal, Division 4, affirmed the dismissal on demurrer of a "contract fraud" cause of action against the defendant county.  In 1987, the plaintiff, allegedly 16 at the time, pled guilty to second degree murder.  In 2012, he filed a civil suit against the county, contending that the plea bargain was a contract, that he was coerced into signing, and that the "contract" violated Civil Code sections 38 and 1556 (which bar minors and persons "entirely without understanding" from contracting).  He sought millions in damages, and a declaration that his plea was void.  The court held that civil actions may not be used to challenge the validity of criminal judgments.  Further, civil statutes that govern contracts in general do not govern plea bargains.  The Penal Code and due process govern plea bargains.