Government Liability Update

Statute of Limitations under IDEA Runs from the Date the Parents Knew or Should Have Known of the Alleged Actions on Which Their Complaint Is Based

In Avila v. Spokane School Dist. 81, published March 30, 2017, the 9th Circuit Court of Appeals reversed the dismissal of claims under the Individuals with Disabilities Education Act as time-barred.  The Administrative Law Judge who heard the plaintiff's parents' due process complaint under the IDEA ruled that claims based on occurrences that took place more than two years before the parents filed their due process complaint were barred by the IDEA's two-year statute of limitations.  The district court agreed.

In a matter of first impression, the 9th Circuit sought to harmonize two provisions of the IDEA that set forth statutes of limitations.  20 U.S.C. § 1415(f)(3)(C) prescribes that parents shall request a due process hearing "within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint . . . ."  20 U.S.C. § 1415(b)(6)(B) prescribes that parents have an opportunity to present a complaint "which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint . . . ."  The court rejected a "2+2" interpretation under which the parents have two years from discovery to file a complaint about actions that occurred up to two years before discovery.  Instead, the 9th Circuit concluded that under the IDEA, the statute of limitations for parents to file a due process complaint is two years from the date they knew or should have known of the alleged actions that form the basis of the complaint.

Person Who Wishes to Open Tattoo Shop Has Standing to Bring Facial and As-Applied Challenges to Zoning Ordinance without Having to Apply for Conditional Use Permit

In Real v. City of Long Beach, published March 29, 2017, the 9th Circuit reversed a judgment against a plaintiff who brought a 42 U.S.C. section 1983 action challenging the defendant city's tattoo parlor zoning ordinances as violating the First Amendment.  The ordinances disallow tattoo shops in most of the City, require a conditional use permit to operate them, barring them within 1,000 feet of existing tattoo parlors or other adult entertainment businesses, restricting their hours of operation, and generally restricting them to areas zoned for tattooing.  The plaintiff alleged that the ordinances restricted his First Amendment right to engage in tattoing by limiting the areas where tattooing is permitted, and by requiring permitting through a CUP process that vests excessive discretion in city officials and imposes excessive fees.  The plaintiff never applied for a CUP because the areas in which he was interested in opening a shop were not zoned for tattooing, so he knew the application would be denied.  At a bench trial, the court entered judgment for the city, concluding that the plaintiff was bringing only an as-applied challenge and did not have standing to do so because he did not apply for a CUP.

The 9th Circuit ruled that the plaintiff was bringing both a facial and an as-applied challenge, and had standing to bring both.  When a licensing statue alleged vests unbridled discretion in a government official over whether to permit expressive activity, one subject to the law may challenge it facially without first applying for and being denied a license.  Tattooing is purely expressive activity. The plaintiff did not have to apply for a CUP to bring a facial challenge.  He met the standing requirements for an as-applied challenge, because he alleged an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by a statute, and there exists a credible threat of prosecution under it.  Because the ordinances allegedly vest excessive permitting discretion with the city, and do not contain adequate procedural safeguards since no time limits are placed on CUP decisions, the plaintiff raised a cognizable prior restraint claim. The court remanded the issue of whether the ordinances were proper time, place, and manner restrictions.

Procedural Errors in Drafting Individualized Education Plan violate IDEA and Shift Burden to School District to Prove Child Received Free and Appropriate Public Education

In M.C. v. Antelope Valley Union High School Dist., published March 27, 2017, the 9th Circuit Court of Appeals reversed a district court order affirming an administrative law judge's decision in a due process hearing brought by the parent of a blind child under the Individuals with Disabilities Education Act.  The parent alleged that the child's Individualized Education Plan was procedurally inadequate because the IEP the parent signed included an offer of 240 minutes of services by a teacher of the visually impaired a month, which the district unilaterally amended more than a month later to 240 minutes per week without notifying the parent.  At the hearing, District witnesses testified that the district offered the child 300 minutes of TVI services per week.  The parent also alleged that the IEP failed to specify the assistive technology devices offered; and that the district failed to file a response to the parent's due process complaint.

The 9th Circuit emphasized that federal courts review decisions in IDEA due process decisions de novo.  It criticized the district court for deferring to the ALJ's decision because it was lengthy and the due process hearing was three days long.  The 9th Circuit concluded that the district violated the IDEA's procedural requirements by amending the IEP without notifying the parent or obtaining her consent to the modification, and because the amount of TVI even in the amended IEP did not match the amount the district witnesses testified to in the hearing.  Further, had the district brought the error to the parent's attention before the due process hearing, the parent might have agreed to the number of hours provided, avoiding the hearing and the attorney fees the parent incurred.  The IEP was also procedurally inadequate because it did not specify the AT devices provided.  Parents must be able to use the IEP as a monitor and enforce the services their child is to receive.  If the parent is unaware of the services offered to the child, and cannot monitor how they are provided, a Free and Appropriate Education is denied.

The 9th Circuit also concluded that the IDEA was procedurally violated because the district did not file a response to the parent's due process complaint.  A response gives notice of the issues in dispute and binds the answering party to a position.  When a school district fails to file a timely answer, an ALJ must not go forward with the hearing.  The ALJ must order a response, and shift the cost of the delay to the district regardless of who is ultimately the prevailing party.

Normally, the party alleging a violation of the IDEA bears the burden of showing the services provided amount to a denial of FAPE.  But where procedural violations as to the IEP deprive the parent of knowledge of what services are offered, the burden shifts to the school district to show that the services provided are adequate.  The 9th Circuit emphasized that on remand, the ALJ must determine whether the services were adequate under the standard the U.S. Supreme Court articulated in Endrew F. v. Douglas County School Dist., decided March 22, 2017. 

 

Pretrial Detention Due to Judicial Determination of Probable Cause Based on False Evidence Violates Fourth Amendment

In Manuel v. Joliet, published March 21, 2017, the U.S. Supreme Court reversed the Seventh Circuit's decision affirming district court dismissal of a 42 U.S.C. section 1983 lawsuit brought by an arrestee held in jail 48 days before release.  During a traffic stop of the plaintiff, the police found pills that twice tested negative for being illegal drugs.  Yet, the plaintiff's lawsuit alleged, the officers arrested the plaintiff without any evidence that he committed a crime; and a technician allegedly lied that the pills contained ecstasy.  The plaintiff was brought before a criminal judge, who concluded--allegedly based only on the false report--that probable cause existed to send the plaintiff to jail to await trial.  While he was in jail, another test of the pills was negative for illegal drugs. Plaintiff remained in jail for over a month after that test, until he was freed on motion of the prosecution.  The Seventh Circuit held that once the judge ordered the plaintiff to jail, he was held pursuant to legal process, and he could not state a claim for being held in violation of the Fourth Amendment Searches and Seizures clause.  Instead, he could claim only denial of due process, and he had sufficient due process.

The Supreme Court held, 6-2, that when an arrestee is imprisoned based on legal process, but that process is based only on false evidence, the arrestee has a claim that the post-process, pre-trial imprisonment violated the arrestee's Fourth Amendment rights.  The Court remanded the issue of when the cause of action accrues.

Recovery of Personal Property Seized Through Improper Police-Initiated Nonjudicial Forfeiture Does Not Require Exhaustion of Administrative Remedies or Presentation of Claim for Damages, and a Three-Year Statute of Limitations Applies

In Ramirez v. Tulare County District Attorney's Office,  published March 15, 2017, the Fifth District Court of Appeal reversed the dismissal on demurrer of multiple trial court petitions for writ of mandate seeking recovery of cash and other personal property that police officers seized from suspects under Health & Safety Code section 11469 et seq. Those forfeiture statutes permit both judicial and nonjudicial forfeiture of personal property connected with unlawful drug activity.  The statutes require that either judicial or nonjudicial forfeitures be initiated by the state attorney general or county district attorney.  The forfeitures at issue were initiated by police officers, rather than prosecutors.  The Tulare County District Attorney's Office asserted that eachwrit petition was barred by the failure to exhaust statutory administrative remedies, failure to present a claim for money or damages under the Government Claims Act, and failure to file the petition within the one-year statute of limitations prescribed by Code of Civil Procedure section 340.  The trial court sustained the demurrers on the statute of limitations ground.

The appellate court held that the petitioners had no obligation to exhaust the administrative remedies under the forfeiture statutes, because there were no valid forfeiture proceedings in which to pursue those remedies.  The police initiation of nonjudicial forfeiture rendered the forfeitures invalid in the first instance.  The Government Claims Act did not require presentation of claims for money or damages, because the petitioners sought return of property, not money or damages.  Finally, the one-year statute of limitations of Code of Civil Procedure section 340 did not apply, because it applies to forfeiture actions (i.e., actions seeking forfeiture) or actions for damages for seizure or forfeiture of property.  Instead, the three-year statute of limitations under Code of Civil Procedure section 338 for actions seeking specific recovery of personal property applied.

Police Officer Allegedly Violates Criminal Defendant's Sixth Amendment Rights by Intimidating Defense Witness, Even If Defendant Acquitted

In Park v. Thompson, published March 14, 2017, a divided 9th Circuit panel reversed a district court order dismissing a 42 U.S.C. section 1983 suit against a police detective.  The plaintiff was accused of murder.  Her defense included a theory that another person was the murderer.  She planned to call as a defense witness the girlfriend of the man she alleged was the murderer.  The witness told the defendant's investigator she would testify that the man had become violent when the witness accused him of the murder, and would choke the witness while telling her that this was what the victim felt like.  The defendant gave the prosecution notice of the witness.  The police detective spoke with the witness.  She admitted she did so not to investigate.  She told the witness that the man (who had physically abused the witness in the past) was "really upset" about the witness's planned testimony. She also allegedly misrepresented the strength of the evidence against the plaintiff, and told the witness she did not have to talk to anyone.  The detective allegedly advised another police department to file charges against the witness before she testified, and allegedly as a result the DA filed charges against her before the plaintiff's trial.  The witness appeared at the trial under subpoena.  The prosecutor advised the witness's attorney to advise her to assert the Fifth Amendment.  The witness did so.  The judge barred any evidence of the third-party culpability theory. The plaintiff was acquitted anyway.

The panel majority held that the plaintiff had stated a claim against the detective for violation of her rights under the Sixth Amendment Compulsory Process Clause and the Fourteenth Amendment Due Process Clause.  The detective's alleged conduct amounted to substantial government interference with a defense witness.  The conduct allegedly caused the witness not to testify.  And the witness's testimony would have been favorable and material to the plaintiff's defense.  That she was acquitted anyway did not render the testimony immaterial, because the detective's conduct allegedly deprived the plaintiff of her entire theory of third-party culpability.  She was therefore deprived of a fair trial despite being acquitted.  The majority also concluded that the plaintiff's allegations about the filing of the charges against the witness sufficiently alleged plausible facts supporting a conspiracy claim under section 1983.

One judge concurred in part and dissented in part.  The judge opined that the plaintiff had alleged insufficient facts to plausibly support a theory that the detective had threatened the witness or caused the witness not to testify.

Filing a Timely Late-Claim Application Does Not Excuse a Minor from Failing to File a Timely Late-Claim Petition

In J.M. v. Huntington Beach Union High School District, published on March 6, 2017, the California Supreme Court affirmed a lower court of appeal decision upholding denial of a Government Code section 946.6 petition for relief from the claims statute. The minor plaintiff was injured in a football game, and did not obtain an attorney or present a claim within six months of the date his cause of action accrued.  Nearly a year after accrual, the minor, through an attorney, filed an application with the defendant district for leave to present a late claim.  The district did not send out a notice regarding the application.  After 45 days, the application was denied by operation of law.  More than six months after the date the application was deemed denied, the minor filed his section 946.6 late-claim petition.  The trial court denied it as untimely.  

 Disapproving the earlier case of E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736 (which held that filing a timely late-claim application was sufficient even if the application was denied), the Supreme Court agreed.  Interpreting the Government Claim Act's statutes, the court concluded that even if a claimant was a minor throughout the claim-presentation period--and thus entitled to automatic relief if the minor files a timely late-claim application--the minor must still timely petition for relief if the application is denied, either by notice or by inaction.  The court further rejected the argument that the district should be estopped because it did not send notice of denial of the application, or that the time to file the petition was equitably tolled.  The minor failed to establish any injustice.  He simply failed to comply with the claims statutes, missing an easily ascertainable deadline that has been in place for over 50 years. 

California Public Records Act Applies to Communications on Agency Employees’ Private Accounts

In City of San Jose v. Superior Court (Smith), published March 2, 2017, the California Supreme Court reversed a Court of Appeal decision denying disclosure of records under the California Public Records Act. The real party in interest made a CPRA request for e-mails and text messages sent or received on private electronic devices used by the respondent city's mayor, council members, and their staffs. The city did not disclose the e-mails or texts. The real party brought a declaratory relief action, arguing that the communications sought were public records. The trial court granted summary judgment and ordered disclosure. The Court of Appeal issued a writ of mandate reversing the trial court.

The Supreme Court concluded that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the CPRA. Under the CPRA's language and public policy, employees' communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission. To qualify as a public record under the CPRA, a writing must relate in some substantive way to the conduct of the public's business. Government Code section 6252, subdivision (e)'s definition of "public record" requires that writings be "prepared, owned, used or retained by any state or local agency." The California Constitution requires that the statute be construed broadly. Broadly construed, the term "local agency" includes not just the governmental entities but also the individual officials and staff members who conduct the agencies' affairs. Only the human beings who serve in agencies can prepare, own, use, and retain records. A writing prepared by a public employee conducting agency business has been "prepared by" the agency within the statute's meaning, even if the writing is prepared using the employee's personal account. Further, case law establishes that records related to public business are subject to disclosure if in an agency's actual or constructive possession. A writing retained in an employee's personal account is within the agency's constructive possession, and so has been "retained" by the agency within the statute's meaning. Policy considerations support these conclusions. California law does not require that public officials or employees use only government accounts to conduct public business. Categorically excluding communications sent through personal accounts would allow officials to hide discussions in such accounts.

Compliance with the CPRA is not necessarily inconsistent with the privacy rights of public employees. Any personal information not related to the conduct of public business, or material statutorily exempt from the CPRA, can be redacted from public records produced or presented for review. Privacy concerns should be addressed on a case-by-case basis. The analysis focuses on the communications' content, not their location.

The court provided guidelines for striking the balance between privacy and disclosure. Agencies need only conduct searches reasonably calculated to locate responsive documents. Agencies may develop their own internal policies for conducting searches. An agency's first step should be to communicate the request to the employees in question. The agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive materials.

Court Abuses Discretion by Denying Attorney Fee Award Based on Evidence Problems to which Opposing Party Did Not Object

In Gonzalez v. Santa Clara County Department of Social Services, published February 28, 2017, the Sixth District Court of Appeal reversed in part an order on the Code of Civil Procedure section 1021.5 attorney fee motion of a successful plaintiff. The plaintiff had multiple successive counsel. The trial court denied fees for all but the most recent. The appellate court concluded that the plaintiff was entitled to fees for the services of her appellate attorney, since the appellate court had been able to observe the attorney's work first-hand and concluded the plaintiff was entitled to at least some fees for the attorney's success in obtaining a favorable published opinion. The trial court had denied the other attorneys' fees based on evidentiary shortcomings in their showing to which the respondent had not objected. Absent a valid objection or prejudice from the evidence, the trial court should have credited the evidence and awarded at least some fees, particularly fees that the respondent had admitted were reasonable. The appellate court remanded the case so that the trial court could determine a reasonable fee award.

Discovery Is Available in CPRA Actions, But Trial Court May Limit It

In City of Los Angeles v. Superior Court (Anderson-Barker), published March 2, 2017, the Second District Court of Appeal affirmed in part and reversed in part an order by the trial court granting a California Public Records Act petitioner's motion to compel the petitioner city to produce documents in discovery, and awarding sanctions against the city.  The city had responded to several written discovery requests in the action with a single identical objection that the petitioner was not permitted to propound discovery as a matter of right in a CPRA petition action.  The trial court granted the motions to compel, issued discovery sanctions against the city, and ruled that the city had waived all objections.  

The appellate court, ruling on an issue of first impression, affirmed the trial court's conclusion that discovery is available in CPRA writ petition actions.  The Discovery Act applies in special proceedings that are civil in nature, so long as the Legislature has not exempted the proceeding from discovery.  A CPRA action is a special proceeding that is civil in nature, and has not been exempted.  Nevertheless, numerous provisions in the Discovery Act permit trial courts to limit or restrict discovery that would otherwise be available.  When a CPRA petition party moves to compel responses to discovery, the trial court must determine whether the discovery sought is necessary to resolve whether the agency has a duty to disclose, and whether the request is justified given the need for an expeditious resolution.  Trial courts may look to federal law addressing discovery in FOIA cases, which permits discovery but limits it.  The appellate court reversed the grant of sanctions, ruling that the city acted with substantial justification given the uncertainty of the law.  It also reversed the order that the city had waived objections.  When a party challenges the applicability of the Discovery Act, it is not subject to waiver principles under the Act.