Government Liability Update

Ban on All New Offsite Billboards, While Allowing Relocation of Grandfathered BillBoards, Is Constitutionally Valid

In City of Corona v. AMG Outdoor Advertising, Inc., published January 26, 2016, the Fourth District Court of Appeal, Division 2, affirmed a trial court order granting the plaintiff city a preliminary injunction requiring the defendant to cease using and remove a billboard or outdoor sign installed without a permit.  The city passed a 2004 ordinance banning all new offsite billboards, but allowing existing offsite billboards as "grandfathered in" and also permitting relocation of existing offsite billboards to another offsite location under relocation agreements with the city.  The evidence in the record supported the trial court's conclusion that the city enforced this ordinance uniformly; and it was a valid regulation on speech.  It did not violate equal protection; it was not an unlawful prior restraint; and it did not violate the California Constitution's free-speech protections.

State Courts Are Bound by U.S. Supreme Court's Interpretation of Federal Law

In James v. City of Boise, published January 25, 2016, the United States Supreme Court reversed an Idaho Supreme Court decision awarding a defendant attorney fees under 42 U.S.C. section 1988.  In  Hughes v. Rowe  (1980) 449 U. S. 5, the U.S. Supreme Court held that a defendant could recover fees under section 1988 only if the plaintiff's action was frivolous, unreasonable, or without foundation.  The Idaho court concluded that it was not bound by that interpretation of section 1988.  The U.S. Supreme Court held that it was.

Mailing Notice of Denial of Late-Claim Application Does Not Extend Deadline to Petition for Relief from the Claims Requirements

In City of San Diego v. Superior Court (Dines), published January 20, 2016, the 4th District Court of Appeal, Division 1, issued a peremptory writ of mandate reversing the trial court's order granting a Government Code section 946.6 petition for relief from the claim requirements.  The plaintiff missed the deadline to present a timely claim to the city.  She filed an application for leave to present late claim, which the city denied.  On the date of denial, the city mailed the plaintiff a notice of the denial.  It stated that if she wished to file a court action on the matter, she must first petition the court for an order relieving her from Government Code section 945.4's claim-presentation requirement; and that the petition must be filed with the court within six months from the date the application was denied.  The plaintiff filed her petition for relief with the court more than six months after the date the application was denied, but within six months and five days of the date the notice of denial was mailed.  The trial court granted the petition.  It ruled that Government Code section 915.2, subdivision (b), extended the time to petition for relief, because it extends five days the time for responding to any notice under the Government Claims Act if the notice is mailed.

The appellate court agreed with the city's argument that Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817 controlled.  Rason held that because subdivision (b) of Government Code section 946.6 states that a petition must be filed within six months of the date a late-claim application is denied, the six months to file runs from the date of denial, and is not based on the date of the notice of denial.  Rason contrasted this deadline with another statute of limitations in the Government Claims Act, Government Code section 945.6, which provides that the time to file a lawsuit runs from the date a notice denying a claim is mailed or presented.  The Rason court invited the Legislature to change this discrepancy between the two statutes of limitation.  The Legislature never did, supporting an inference that it intended that the six-month period to petition runs from the date of denial.

 Although Government Code section 915.2, subdivision (b), was amended in 2002 to provide that any duty to respond after receipt of service of a notice is extended five days if the notice is served by mail, that amendment does not apply to the time to petition, because that time does not run from the date of service or receipt of the notice of the late-claim application's denial, but rather from the denial itself.

 

Court Considering Whether to Award Attorney Fees under 42 U.S.C. Section 1988 May Consider Degree of Success in Settlements As Well As in Litigation

In Bravo v. City of Santa Maria, published January 12, 2016, the 9th Circuit affirmed in part and reversed in part a district court's award of attorney fees and costs in a 42 U.S.C. section 1983 case.  The plaintiffs settled with one group of defendants (the city whose police carried out a search of their home) for $360,000.  Their claims against another group of defendants (the police who sought the warrant) went to trial, resulting in a jury verdict of $5,000.  In determining the degree of success the plaintiffs achieved, the district court considered both the amount obtained at trial and the amount obtained through settlement, and awarded fees of over $1 million.  The 9th Circuit affirmed.  In an issue of first impression, it held that a court may consider success obtained through both settlement and trial in determining a party's degree of success for 42 U.S.C. section 1988 fee award purposes.

The 9th Circuit reversed the district court's cost award, however.  The district court refused to offset the costs awarded against the defendants who lost at trial with the costs already reimbursed by the settling defendants.  In another issue of first impression, the 9th Circuit held that such an offset is appropriate.

Plaintiff Who Sought Policy Change, Obtained Voluntary Compliance, and Received Nominal Damages Is Entitled to Fees under 42 U.S.C. Section 1988

In Klein v. City of Laguna Beach, published January 14, 2016, the 9th Circuit reversed an order denying the plaintiff an attorney fee award under 42 U.S.C. section 1988.  Plaintiff sued the city under 42 U.S.C. section 1983 and California's Bane Act in an attempt to invalidate aspects of city ordinances prohibiting use of sound-amplification devices on city sidewalks.  The city eventually amended its ordinances, and the plaintiff obtained nominal damages on his federal cause of action.  He lost on the state cause of action.  The district court denied him attorney fees under Farrar v. Hobby (2002) 506 U.S. 103, which holds that where a plaintiff seeks a large compensatory damages award but receives only nominal damages, the court may deny him attorney fees under section 1988.

The 9th Circuit held that Farrar does not apply where the plaintiff's main goal is not a large compensatory damages award, but a change in policy, and the plaintiff obtains that goal.  Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health & Human Resources (2001) 532 U.S. 598, which bars attorney fees under section 1988 where the lawsuit simply brings about a voluntary change in the defendant's behavior, did not apply, because the plaintiff received nominal damages in addition to voluntary compliance.

The 9th Circuit affirmed, however, the district court's ruling that the plaintiff was not entitled to fees under California's attorney general statute.  The plaintiff lost on his California law claims, and success under his federal claims entitled him to fees only under the federal statute.

Juvenile Court Plea Bargain Precludes Subsequent Section 1983 Excessive Force Lawsuit

In Fetters v. County of Los Angeles, published January 8, 2016, the Second District Court of Appeal, Division 1, reversed a judgment for the plaintiff in an excessive force case against a sheriff's deputy under 42 U.S.C. section 1983.  The teenaged plaintiff was riding his bicycle and carrying a replica of a semiautomatic pistol.  Two deputies shot the plaintiff.  The plaintiff and the deputies disputed whether the plaintiff dropped the toy pistol or turned toward the deputies holding it.  The plaintiff entered into a plea deal in juvenile court, under which he entered an "admit" plea and received informal probation for six months rather than jail time.  The probation report the court read at the time of the plea recited that the plaintiff pointed the toy gun at the deputies in a threatening manner.  After the six months, the court granted the plaintiff's motion to withdraw the plea and dismiss the case, based on successful completion of probation.  The plaintiff then filed the excessive force lawsuit.  The trial court held a mini-trial on whether the suit was barred by Heck v. Humphrey (1994) 512 U.S. 477.  It concluded it was not.  A jury found for the plaintiff.

The appellate court ruled the trial court's Heck ruling was erroneous.  Under Heck, if there was an underlying conviction or sentence that relates to the section 1983 claim, a judgment in the plaintiff's favor would necessarily imply that the prior conviction or sentence was invalid, and the prior conviction or sentence was not already favorably terminated for the plaintiff, the section 1983 lawsuit is barred.  Here, because the plaintiff admitted the allegation that he pointed the pistol at a deputy in a threatening manner when he entered the plea bargain, a judgment in the plaintiff's favor, based on his account that he dropped the gun before being shot, would necessarily imply that the conviction or sentence he had received was invalid.  The conviction or sentence was not terminated in plaintiff's favor merely because the plea was withdrawn; that was only due to successful completion.  Under California law, a favorable termination must indicate the plaintiff's innocence.

Trail Immunity Applies to Bicycle Path Used Primarily for Commuting if It Is Also Used for Recreation

In Burgueno v. The Regents of the University of California, published January 13, 2016, the Sixth District Court of Appeal affirmed summary judgment for the Regents in a wrongful death case.  The decedent was riding his bicycle on the Great Meadow Bikeway, a paved bike path that runs through a university campus, when he suffered a fatal accident.  The purpose of the Bikeway is transportation to and from the central campus that is separate from automobile traffic.  Some bicyclists use the Bikeway for recreation, including for accessing mountain bike paths in the redwood forests nearby.  The decedent was using the Bikeway to commute to a class when his accident occurred.  The plaintiffs contended that the Bikeway's design was unsafe, and that the Regents failed to warn of the allegedly dangerous condition.  The trial court granted summary judgment based on Government Code Section 931.4, the trail immunity.

The appellate court agreed that because it was undisputed that some riders used the bike path for recreation, the trail immunity applied.  Although the immunity was primarily designed to encourage public entities to open their property for public recreational use, it is established that a dual use of a bike path for recreation and for other purposes does not prevent the immunity from applying.