Government Liability Update

City Manager Retaliated against Police Chief in Violation of Chief's First Amendment Rights

In Griesen v. Hanken, published May 31, 2019, the 9th Circuit affirmed a jury verdict and resulting judgment in favor of a former police chief and against a former city manager.  When the plaintiff was the chief, he discussed with city council members and government officials who were not in the chief's chain of command his concerns about the city's accounting practices and budgeting under the city manager.  The city manager initiated investigations of a use of force that the chief authorized, an alleged hostile work environment, and cash kept in the chief's office.  The manager ordered the chief not to speak to the media about the investigations.  But after the chief appealed a suspension related to one of the investigations (in which the appeal cleared him of wrongdoing), the manager released information to the media about the first two investigations; and later spoke to the media about the third, providing misleading information about it.  Soon after the administrative appeal cleared the chief, the manager resigned, citing the findings as the reason.  His replacement used a "no-cause" clause in the chief's contract to terminate the chief.  He did so after reviewing the investigator's reports.  He sued the city manager under 42 U.S.C. section 1983 for retaliation in violation of the chief's First Amendment rights.

The 9th Circuit found adequate evidence to support the jury's verdict in the chief's favor.  The chief's discussions about the city's finances were statements on matters of public concern.  The chief made the statements as a member of the public, rather than as part of his job obligations.  The appellate court declined to apply cases holding a teacher was a teacher no matter what the teacher said to a non-school situation.  The chief did not act as a police chief when speaking with city officials outside his chain of command about financial matters beyond those that affected his department.  The law on these points was clearly established; the manager was therefore not entitled to qualified immunity.  There was sufficient evidence that the city manager subjected the chief to adverse employment actions.  Although courts hesitate to conclude that retaliatory speech can serve as a basis for a First Amendment retaliation claim, the retaliatory speech here was part of a campaign of harassment designed to burden the plaintiff's protected expression.  In such a situation, speech is sufficient to support a retaliation claim.  Again, the law was clearly established on that point.  Although the replacement city manager fired the chief, the termination was sufficiently connected to the former manager's investigations and conduct to support the damages the jury awarded for the termination.

Probable Cause for Arrest Precludes First Amendment Claim for Retaliatory Arrest

In Nieves v. Bartlett, published May 28, 2019, the U.S. Supreme Court, in a split opinion, reversed a 9th Circuit decision which itself reversed summary judgment for the defendant police officers.  During a winter sports festival in Alaska, one of the defendant officers was speaking with festival goers when the plaintiff told the goers they should not speak with the police.   The officer approached the plaintiff to explain the situation.  The plaintiff told him to leave. Several minutes later, the other defendant officer was talking with a teenager when the plaintiff allegedly approached, stood between the officer and teen, said that the officer should not speak with the minor, and stepped close to the officer.  The officer pushed him back.  The two defendant officers arrested him.  According to the plaintiff, after he was handcuffed, the first officer said, "[B]et you wish you would have talked to me now."  The state dismissed the criminal charges against the plaintiff.  He sued the officers under 42 U.S.C. section 1983 for violating his First Amendment rights by arresting him in retaliation for his speech.  The allegedly protected speech was his refusal to talk to the first officer and his intervention in the second officer's conversation with the teen.  The district court granted summary judgment on the ground that the officers had probable cause to arrest the plaintiff.  The 9th Circuit held that a plaintiff can prevail on a First Amendment retaliatory arrest claim even in the face of probable cause for the arrest.

The opinion of the court, in which five justices joined, was that a plaintiff must establish absence of probable cause to establish a retaliatory arrest claim.  If the plaintiff establishes lack of probable cause, the plaintiff must show that the retaliation was a substantial or motivating factor behind the arrest.  If that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation.  There is a narrow exception for circumstances where officers have probable cause to make arrests, but typically elect not to do so, as in jaywalking situations. Such situations pose the danger that officers may exploit their arrest power to suppress speech.  Therefore, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence he was arrested when otherwise similarly-situated individuals not engaged in the same sort of protected speech had not been.  Under these rules, the plaintiff's retaliation claim was subject to summary judgment, because there was probable cause to arrest him, and because the evidence of the first officer's statement would not support a retaliatory arrest claim against the second officer.

Another justice, Thomas, concurred in the decision except for the exception to the no-probable-cause rule.  Justice Gorsuch concurred that absence of probable cause is not an absolute requirement and its presence not an absolute defense, but dissented from the rules the majority drew.  Justice Ginsburg concurred that the officer for whom there was no evidence of retaliation was entitled to summary judgment, but otherwise dissented.  Justice Sotomayor dissented, opining that probable cause should not be a defense.

Reconsidering Prior Decision, Ninth Circuit Rules Supervisors Entitled to Qualified Immunity for Terminating Probationary Police Officer Having an Affair with a Co-Worker, and for Notifying the Co-Worker's Wife without Holding a Name-Clearing Hearing

In Perez v. City of Roseville, published May 21, 2019, the Ninth Circuit withdrew a 2018 opinion in the same case because one of the deciding judges passed away before mandate issued, a judge sua sponte requested hearing en banc, and the court ordered the parties to brief whether the case should be reheard.  The new panel concluded, 2-1, it should reach a different decision.  It affirmed the district court decision granting the defendants summary judgment.

The plaintiff was a probationary police officer.  The wife of the plaintiff's co-worker filed a citizen's complaint with the department alleging the plaintiff and her husband were having an affair, were engaging in romantic relations on duty, and were exchanging numerous phone and text contacts on duty.  The chief initiated an internal affairs investigation.  The investigation found no evidence that the co-workers engaged in relations on duty, but sustained that the officers made several personal phone calls to each other on duty.  A captain informed the officers that the investigation had resulted in sustaining charges under the department's regulations.  The next day, the department sent a letter to the complaining wife stating that allegations in the citizen's complaint had been sustained.  The officers appealed the charges.  Before the appeal was held, the supervisors received additional complaints about the plaintiff's job performance.  At the end of the appeal hearing, the chief informed the plaintiff she was being terminated for failing to complete her probation successfully.  The plaintiff sued the department for violating her constitutional right to privacy and intimate association, and for violating her due process rights by allegedly making public accusations against her connected to her termination without giving her a name-clearing hearing.

The new decision concluded that the supervisors were entitled to qualified immunity, because the law did not clearly establish that they violated the Constitution.  Previous case law holding that a police department violated a job applicant's right to privacy and intimate association by declining to hire her due to her affair with an officer on the department established that the state could not rely on private non-job-related considerations, such as an applicant's prior sexual history, in employment decisions, unless the off-job activities have an impact on on-the-job performance.  That decision did not clearly establish that an off-duty affair that could affect on-the-job perfomance, such as the on-duty phone calls here, could not be considered in terminating a probationary employee.  Subsequent decisions from the Ninth Circuit indicated that such activity might be considered.

The court also concluded that the supervisors were entitled to qualified immunity for not providing a name-clearing hearing.  Due process requires such a hearing only where there is a sufficient nexus between termination and statements to the public about the employee.  Here, the letter to the wife was sent 19 days before the termination.  Prior case law held that the law did not clearly establish that such a temporal gap between statement and termination nevertheless created a sufficient nexus to require a name-clearing hearing.

Ballots Are Exempt from Disclosure under the California Public Records Act

In Citizens Oversight v. Vu, published May 21, 2019, the Fourth District Court of Appeal, Division 1 affirmed a trial court decision declaring that ballots cast by registered voters during the 2016 California Presidential Primary Election are exempt from disclosure under the California Public Records Act.  Government Code section 6254, subdivision (k), exempts from the CPRA disclosure of records that are expressly protected by statute.  With exceptions that did not apply here, the Election Code prescribes that after ballots are counted, they shall be sealed and kept unopened and unaltered for 22 months, after which they shall be recycled or destroyed.  By contrast, other election materials, such as voting rosters and tally sheets, are specifically open for public inspection.  The statutes therefore expressly protect ballots from disclosure.

The Anniversary Method of Calculating Deadlines Applies to the Statute of Limitations for Filing a 42 U.S.C. § 1983 action after a Minor Achieves Majority

In Shalabi v. City of Fontana, published May 21, 2019, the Fourth District Court of Appeal, Division 2 reversed a judgment against the plaintiff after a bench trial.  The plaintiff sued a police officer under 42 U.S.C. section 1983 for allegedly wrongfully shooting and killing the plaintiff's father when plaintiff was a minor.  The plaintiff turned 18 on December 3, 2011.  He filed his complaint on December 3, 2013.  The court held a bench trial on stipulated facts on the issue of whether the complaint was filed within the statute of limitations.  It concluded that the last day to file the suit was December 2, 2013, and that the lawsuit was time-barred.

The appellate court ruled that the trial court calculated the last day to file incorrectly.  Under section 1983, California's statute of limitations for personal injury actions--two years--applies.  California law controls the tolling of that statute of limitations.  Under Code of Civil Procedure section 352, a minor's cause of action is tolled until the minor turns 18.  The statute begins running on the minor's 18th birthday.  The two methods of calculating the statute of limitations after the tolling period ended are the anniversary method and the calendar method.  The trial court used the calendar method.  Under Code of Civil Procedure section 12, however, California law uses the anniversary method, under which the first day of the period is excluded and the last day is included.  Since the plaintiff's birthday on December 3, 2011 was the triggering date, that day is excluded, and the count starts with December 4.  Two calendar years from that date is December 3, 2013.  That date is included.  So the last day to file was December 3, 2013.  An 1884 California Supreme Court case held that the first day is counted, because the plaintiff has the entire first day of majority to file suit.  That case did not address section 12, and so is not binding authority on section 12's application.  

In Lawsuit against School District for Negligent Supervision of Teacher, Court Erred in Excluding Evidence of Alleged Prior Misconduct as Irrelevant

In D.Z. v. Los Angeles Unified School Dist., published May 14, 2019, the Second District Court of Appeal, Division 4, reversed a jury verdict in favor of the defendant district.  The plaintiff high school student alleged that a teacher inappropriately touched her, that school administrators knew or should have known of the danger posed by the teacher, and that the district's failure to respond appropriately to that knowledge caused her harm.  In response to a motion in limine under Evidence Code section 352, the trial court excluded all evidence of alleged misconduct by the teacher apart from inappropriate touching of students.  The evidence excluded included a risque joke about a student's chest that resulted in an investigation of the teacher.  It also included the teacher showing favoritism to female students and offering students rides home.  The trial court also gave, over the plaintiff's objection, jury instructions directing the jury to determine whether the school principal was a district employee and whether the principal acted within the scope of her duties when she harmed the plaintiff.

The appellate court ruled that the trial court abused its discretion by abusing the evidence as irrelevant.  Evidence of alleged misconduct other than the improper touching was relevant to whether the district had notice that the teacher's conduct was reasonably foreseeable, which must be determined under all of the circumstances.  While some of the evidence might not have been relevant, the line the court drew barring all non-touching evidence was improper.  The appellate court noted that trial courts may exclude relevant evidence as inflammatory.  The trial court, however, never reached that issue.  The appellate court ruled the exclusion prejudicial, particularly since the defense counsel used the exclusion to minimize evidence of the teacher's conduct before the alleged touching occurred.  The appellate court further ruled that the jury instructions concerning the principal's employment and scope of duties were improper.  Since the principal's employment and scope of duties were undisputed, the instructions served only to confuse the jury.

Presenting Claim after Action Filed Does Not Substantially Comply with the Government Claims Act's Requirements

In Le Mere v. Los Angeles Unified School Dist., ordered published May 14, 2019, the Second District Court of Appeal, Division 8 affirmed dismissal of an action after a demurrer was sustained without leave to amend. In a lawsuit filed in 2015, the school teacher plaintiff alleged she suffered harassment, retaliation, and discrimination from the date she filed a lawsuit against the defendant district in 2007.  A year after she filed the lawsuit, she presented a claim for damages to the defendant district. The First Amended Complaint included a cause of action for retaliation under FEHA.  The trial court sustained the defendants' demurrer to the cause of action with leave to amend.  The plaintiff did not amend the cause of action. The Second Amended Complaint alleged as causes of action against the defendant district harassment in violation of Education Code sections 44110 through 44114, and violation of Labor Code section 1102.5.  The trial court sustained demurrer as to the first cause of action, because the plaintiff was not given leave to add the new cause of action when demurrer was sustained to the prior complaint, and because the plaintiff failed to allege she filed a complaint with the police, a prerequisite to liability.  The court sustained demurrer to the section 1102.5 cause of action because the plaintiff had failed to comply with the Government Claims Act.

The appellate court affirmed the demurrer to the retaliation cause of action.  The plaintiff failed to allege that any of the named defendants engaged in any retaliatory conduct.  It does not allege the named defendants knew about the 2007 lawsuit, or were directed by others who did. Almost two years passed between the 2007 lawsuit and the first retaliatory act alleged, in 2009.  That is too large an interval to imply causation. Since the plaintiff elected not to amend, the court presumed she had pled her best case.  The court acted within its discretion in concluding the Education Code harassment cause of action was added without leave, and precluded by failure to file a police report.  

The appellate court also affirmed the decision that the Labor Code section 1102.5 cause of action was barred by failure to comply with the claim-presentation requirement.  A plaintiff cannot cure her failure to present a claim before filing suit by presenting a claim after filing suit.

Vexatious Litigant's Repeated Lawsuits and Appeals Raising Improper Arguments Could Only Be Filed to Harass Respondents

In McFadden v. Los Angeles County Treasurer and Tax Collector, et al., the Second District Court of Appeal, Division 1 ordered an appeal from an order to strike and a motion for judgment on the pleadings dismissed.  The appellant filed multiple lawsuits under different theories against a city and other governmental defendants arising out of the 2005 demolition of her house.  She lost the first one on the merits, and the appellate court affirmed the result.  The second was defeated on the pleadings, and the appellate court affirmed on res judicata grounds.  The third lawsuit was dismissed on res judicata grounds.  The plaintiff appealed the result, but abandoned the appeal.  In the fourth case, the trial court issued tentative orders sustaining demurrers and granting a motion for judgment on the pleadings, but did not enter a final ruling because the plaintiff had a pending bankruptcy case.  The bankruptcy trustee allowed the city to pursue a motion deeming the plaintiff a vexatious litigant.  The court granted the motion, based on the plaintiff repeatedly litigating the same matter in four cases.  The court dismissed the action when the plaintiff failed to file a bond.  The appellate court affirmed the vexatious litigant finding, but reversed because the trial court had not given the plaintiff a deadline to file the bond.  On remand, the trial court struck the complaint sua sponte and granted judgment on the pleadings, on the ground that the action had no merit.  The plaintiff appealed.  When the appellate court issued an order to show cause concerning the appeal's merit, the plaintiff obtained counsel, and the court discharged the OSC.  The attorney then withdrew, and the appellate court issued another OSC to show that the appeal had merit.

When a vexatious litigant files an action through counsel, and then becomes in pro per, Code of Civil Procedure section 391.3 permits a court to dismiss the action if it determines the action has no merit, and is filed for the purpose of harassment or delay.  The plaintiff failed to show this appeal had merit.  She challenged her status as vexatious litigant, but that matter was resolved.  She raised a new argument concerning the demolition of her house, but it was too late to assert that argument; she could have asserted it in her original case, and so cannot be permitted to do so in a later case.  Finally, the plaintiff contended she did not file the action to harass the respondents.  Whatever her intent, the effect of the repeated litigation was to harass the respondents, and that was the only possible purpose of the appeal.