Government Liability Update

California School Districts and County Offices of Education Remain Arms of the State That Cannot Be Sued under 43 U.S.C. section 1983

In Sato v. Orange County Department of Education, the 9th Circuit Court of Appeals rejected an argument that AB 97, a legislative reform package designed to decentralize education in California, changed previous rulings that California school districts and County Offices of Education are arms of the state, and so immune under the Eleventh Amendment from suits under 42 U.S.C. section 1983.

Administrative Appeal of Step Leading to Peace Officer's Termination Is Not Substitute for Administrative Appeal of Termination Itself

In Morgado v. City & County of San Francisco, published June 27, 2017, the First District Court of Appeal, Division 4 affirmed a trial court decision granting a terminated nonprobationary police officer injunctive relief.  The Chief of Police filed a disciplinary complaint against the plaintiff officer.  A commisioner of the city's Police Commission held an evidentiary hearing on the complaint.  The officer participated in it.  Later, the officer, represented by counsel, participated in a hearing before the full Commission.  At the conclusion, the Commission sustained four of the six misconduct claims against the officer, and decided to terminate his employment.  The officer sued for injunctive relief and an administrative writ of mandate directing the city to reinstate him.  The court issued an injunction directing the city to vacate the termination and to provide him with an administrative appeal from the decision terminating him.

The appellate court affirmed this decision.  The Peace Officer's Bill of Rights includes Government Code section 3304, subdivision (b), which provides that no punitive action shall be undertaken by any public agency against any peace officer without providing the officer the opportunity for an administrative appeal.  The city contended that the Chief's disciplinary complaint was a punitive action, and that the Commission proceedings were the administrative appeal.  The appellate court did not disagree with these propositions.  It held, however, that section 3304 also required the city to permit the officer an administrative appeal from the termination.  There may be multiple steps in a disciplinary action that amount to "punitive actions" under the POBRA that trigger the right to appeal.  The court did not hold that the city must provide multiple administrative appeals during a single disciplinary proceeding against an officer.  But providing a hearing that could be considered an administrative appeal in the middle of the proceeding does not excuse the municipality from providing the officer an opportunity to administratively appeal the ultimate disciplinary decision at the end of the proceeding.  The court also declined to hold that the city had to provide the officer with another evidentiary hearing, or that a body separate from the Commission must provide the hearing.  The court declined to specify the sort of administrative appeal to be provided.  The hearing provided met some of the requirements of an administrative proceeding, by allowing the officer to create a record and by providing for administrative findings.  But the appeal provided must give the officer the opportunity to convince the municipality to reverse the ultimate disciplinary decision.

For Purposes of the Government Claims Act, a Cause of Action Accrues When It Is Ripe; The Asbestos Statute of Limitations Does Not Extend the Time to Present a Claim

In City of Pasadena v. Superior Court (Jauregui), published June 26, 2017, the Second District Court of Appeal, Division 4 issued a writ directing a trial court to sustain the defendant city's demurrer without leave to amend.  The plaintiff was diagnosed with mesothelioma in September 2015.  In October 2015, she sued various defendants for asbestos exposure.  The complaint alleged that her father picked up asbestos to which the plaintiff was exposed at work places including the city, but the complaint did not include the city as a defendant.  In August 2016, the plaintiff presented a claim for damages to the city.  In October 2016, the plaintiff amended her complaint to include the city as a defendant.  The city demurred on the ground that the plaintiff's complaint was presented more than six months after the accrual of her cause of action for asbestos exposure.  The trial court overruled the demurrer, on the ground that under the statute of limitations for asbestos exposure, Code of Civil Procedure section 340.2, the limitations period had not yet commenced, and so the plaintiff's claim was timely.

The appellate court rejected that analysis.  Under Government Code section 901, the date of accrual for purposes of the Government Claims Act is the date that the cause of action would have accrued within the meaning of the statute of limitations absent any claim requirements.  To calculate the claim presentation deadline, the court must determine the date the cause of action accrued under the applicable statute of limitations.  Under Code of Civil Procedure section 340.2,the time for commencement of the action is the later of the date of discovery or the date the plaintiff first suffered disability.  Disability is the permanent termination of the person's ability to do her job, actually forcing the person off the job.  The plaintiff here was never disabled, so the statute of limitations never began to run for her.  But section 340.2 does not use the word "accrued."  Instead, under Code of Civil Procedure section 312, a cause of action accrues when the party owning it is entitled to begin and prosecute an action thereon.  That is generally immediately upon the commission of the wrong and the occurrence of harm.  An exception is delayed discovery.  Latent diseases such as mesothelioma are subject to the delayed discovery standard of accrual.  The court concluded that as used in Government Code section 901, the date of accrual is the date on which the cause of action became actionable--when it became ripe.  Here, that was when the plaintiff discovered or reasonably should have discovered she had suffered a compensable injury, which was no later than her September 2015 diagnosis.  She failed to present her claim within six months of that date, and so did not comply with the Government Claims Act.  The court rejected the argument that "accrue" meant only "commencement of the limitations period" under section 340.2.  That would lead to the anomalous result that the plaintiff could not bring her action at all, because her limitations period never commenced.  Section 340.2 extends the time to bring suit, not the time to present a claim.

The Only Portions of Attorney Billing Invoices That May Be Subject to the California Public Records Act Are Fee Totals In Invoices from Long-Concluded Matters

In County of Los Angeles Board of Supervisors v. Superior Court (ACLU), ordered published June 22, 2017, the Second District Court of Appeal, Division 3, addressed this case on remand from the California Supreme Court.  The Supreme Court's opinion ruled that billing invoices from outside counsel to public entities in pending cases are exempt from the California Public Records Act, because every portion--including fee totals--communicate attorney-client information.  But it left open the possibility that fee totals from long-concluded matters may not be exempt from the CPRA.

On remand, the appellate court interpreted the Supreme Court's decision as holding that the only portion of an invoice from a long-concluded proceeding that may be subject to the CPRA is the fee total.  Whether the fee total communicates attorney-client information is a factual inquiry for the trial court.  The appellate court also rejected the document-seeker's argument that the trial court should examine the redactions of attorney-client information in camera to determine whether too much was cut out.  Absent party permission, courts cannot examine in camera information claimed to be protected by attorney-client information to determine if the privilege applies.

Class Member Standing to Bring Title II ADA Claim Is Based on Facility Access, Not Program Access; ADAAG Standards Apply to Public Rights of Way, Parks, and Playgrounds

In Kirola v. City and County of San Francisco, published June 22, 2017, the 9th Circuit affirmed in part and reversed in part a district court's decision after a bench trial in a Title II ADA class action challenging access to the disabled for San Francisco's sidewalks, libraries, pools, and parks.  The district court ultimately decided that the class representative lacked Article III standing, because she had failed to prove inaccessibility to the city's programs.  Alternatively, the court decided the case on the merits, and rejected the plaintiff class's experts by holding they had erred in applying Americans with Disabilities Act
Accessibility Guidelines (ADAAG) standards to public rights of way, parks and playgrounds.

The 9th Circuit held that the district court had conflated standing with success on the merits.  To prove Article III standing in a Title II ADA case, the plaintiff had to prove that she had encountered access barriers at a facility, and either intended to return or was deterred from returning.  Access to the program as a whole is the standard for deciding the merits.  The appellate court also held that ADAAG standards do apply to public rights of way, parks, and playgrounds.  It therefore held the district court erred by rejecting the plaintiff's experts testimony on that ground.  The appellate court upheld other findings by the district court.  It remanded the action for further proceedings.

Bidder That Submits Nonresponsive Response to Request for Proposals Cannot Seek Writ Attacking Successful Bid, Because Bidder Has No Beneficial Interest

In SJJC Aviation Services v. City of San Jose, ordered published June 20, 2017, the 6th District Court of Appeal affirmed the dismissal on demurrer of a trial court writ petition challenging the award of a lease for airport facilities.  The defendant city issued a Request for Proposal that described the elements required for proposals.  The plaintiff submitted an RFP response that omitted nine required elements.  The city denied the proposal as nonresponsive, and awarded the lease to another bidder.  Before the lease was approved, the city changed one of the requirements for the lease, over the plaintiff's protest.  The city council approved the lease.  The plaintiff brought a writ petition alleging that the city violated its duties in changing the bid requirements and then awarding the lease.  It also sought injunctive and declaratory relief.

The appellate court ruled that the plaintiff could not state a cause of action for writ relief, because it lacked the beneficial interest in the outcome required by Code of Civil Procedure section 1086.  Because the plaintiff submitted a nonresponsive proposal, the requirement change it protested took place after the plaintiff's proposal was rejected, and the changed requirement had nothing to do with the reasons for the plaintiff's proposal's rejection, the changed requirement did not injure any interest plaintiff had.  None of the requirements for citizen standing, as a substitute for beneficial interest, were present.  The plaintiff also could not establish any grounds for injunctive or declaratory relief.  Because the plaintiff failed to show how it could cure the petition by amendment, the trial court properly sustained the city's demurrer without leave to amend.

Continuing Impound of Vehicle without Justification Violates the Fourth Amendment

In Brewster v. Beck, published June 21, 2017, the 9th Circuit reversed dismissal of a 42 U.S.C. section 1983 class action suit brought by the owner of a vehicle that the Los Angeles Police Department impounded for 30 days.  The owner loaned her vehicle to a driver who had a suspended license.  When police stopped the driver and learned about his license, they impounded the vehicle under Vehicle Code section 14602.6(a)(1).  That statute authorizes impounding a vehicle when the driver has a suspended license.  The vehicle must generally be impounded for 30 days.  Three days after the impound, the owner showed up at LAPD with proof that she was the registered owner and had a valid driver's license.  She offered to pay all towing and storage fees.  The LAPD refused to release the vehicle to her before the 30-day period lapsed.  The district court ruled that the 30-day impound was a valid administrative remedy.

The 9th Circuit held that regardless of whether the impound was a valid administrative remedy under the Fifth or Fourteenth Amendments, the impound was a seizure under the Fourth Amendment.  Although the seizure was initially proper, a seizure lawful at inception may violate the Fourth Amendment if its manner of execution unreasonably infringes possessory interests.  A seizure is justified under the Fourth Amendment only to the extent that the government's justification holds force.  Thereafter, the government must cease the seizure or provide a new justification.  The LAPD provided no justification for continuing to hold the vehicle after the registered owner appeared with a valid driver's license.  The court acknowledged that its decision conflicted with a 7th Circuit holding.

Police Officers Did Not Use Excessive Force in Letting Police Dog Off Leash When Responding to Nighttime Burglar Alarm in Commercial Building

In Lowry v. City of San Diego, published June 6, 2017, the 9th Circuit Court of Appeals, sitting en banc, affirmed summary judgment in favor of the defendant city in a 42 U.S.C. section 1983 suit alleging that the city's "bite and hold" policy for police dogs violated the plaintiff's 4th Amendment right to be free from excessive use of force.  The plaintiff fell asleep on the couch in her office, located in a two-story office building.  During the night, she used the restroom in a neighboring office suite, triggering the burglar alarm at approximately 10:40 p.m..  She returned to her couch and fell asleep again.  Three police officers and a police dog responded to the alarm.  Approaching, they did not see anyone leave the building  On the second story, they saw an open door.  Outside the door, the K-9 officer yelled a loud warning that he would send in a police dog; waited 60-90 seconds, and then released the dog into the suite.  The officers were concerned that a burglary might be in progress and the burglar lying in wait.  In the plaintiff's office, the k-9 officer shown his flashlight on plaintiff, under a blanket on the couch.  The dog leapt onto the couch and bit plaintiff on the lip.  The officer immediately called the dog off, and the dog responded.

The en banc panel determined that there were no material issues of fact.  The plaintiff's Monell claim against the city required the court to first determine whether the officers' use of force was excessive.  The court applied a three-step inquiry.  It first considered the type and amount of force.  The court determined that the risk of harm from the use of force was moderate, not severe.  The officer closely followed the dog, and called the dog off quickly after it encountered the plaintiff.  The second step was evaluating the city's interest in the use of force.  The court examined this under the totality of the circumstances, including the factors set forth in Graham v. Connori.  The first Graham factor, the severity of the suspected  crime, weighed in the city's factor because burglary carries and inherent risk of violence.  The second factor, whether the suspect posed an immediate threat to safety, weighed in favor of the city, because under the circumstances the officers could conclude that a burglar was hiding, might be armed, and was ignoring the officer's warnings.  The third factor, whether the victim was resisting or attempted to evade arrest, did not weigh substantially either way.  Other factors weighing in the city's favor were that the officers gave a warning, and the conceivable alternatives to letting the dog off the leash did not weigh against letting the dog off the leash (since holding onto the leash could increase the officer's exposure to danger).  The third step was balancing the gravity of the intrusion on the plaintiff's 4th Amendment rights against the city's need for the intrusion.  The officers' compelling need to protect themselves outweighed the non-severe force used.  The use of force therefore did not violate the plaintiff's 4th Amendment rights.  Because the plaintiff did not suffer constitutional injury, she could not establish that the "bite and hold" policy created city liability.

One judge dissented.

Taxpayer Action Standing Requires That Plaintiff Pay Tax Assessed by the Defendant Public Entity

In Weatherford v. City of San Rafael, published June 5, 2017, the California Supreme Court reversed and remanded a stipulated dismissal of a taxpayer's action under Code of Civil Procedure section 526a.  The plaintiff sued a city and county for declaratory and injunctive relief, challenging the manner in which the defendants impounded autos.  The lower courts ruled that section 526a requires the plaintiff to have paid property taxes to the defendant public entity to have standing to bring the suit.  The Supreme Court reversed.  It ruled that section 526a was intended to restrict the common-law rules of taxpayer standing, by limiting the types of taxes that may be paid to give standing.  But limiting the types of taxes to property taxes is too narrow a reading.  The plaintiff must pay a tax assessed by the defendant locality, but the tax need not be property tax.