Government Liability Update

California Public Records Act's Venue Statute Is Not Jurisdictional, and Does Not Supersede Venue Statute Governing Actions against State

In The California Gun Rights Foundation v. Superior Court (Department of Justice), published May 29, 2020, the Second District Court of Appeal, Division 3 issued a writ of mandate reversing a trial court's order transferring the underlying action for lack of jurisdiction.  The petitioner brought a California Public Records Act writ proceeding in the Los Angeles Superior Court, seeking records from the California Department of Justice and the California Attorney General.  The state presented evidence that the records sought were kept in servers in Sacramento, and that the personnel who maintained those records and responded to CPRA requests worked in Sacramento.  The state argued that under Government Code section 6259, part of the CPRA, the action had to be litigated in Sacramento rather than Los Angeles.  Section 6259, subdivision (a) provides, “Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court
shall order the officer or person charged with withholding the records to disclose the public record or show cause why the officer or person should not do so.”  The petitioner argued that under Code of Civil Procedure section 401, whenever an action against a state agency may or must be brought in Sacramento, it may be brought in any city or county of the State in which the Attorney General has an office.  The trial court concluded that section 6259 deprived the Los Angeles Superior Court of jurisdiction to entertain the petition, and ordered the petition transferred to Sacramento County.

The Court of Appeal ruled that the trial court erred in interpreting section 6259 as jurisdictional.  Instead, jurisdiction is set forth in Government Code section 6258, which provides that a CPRA writ petition may be brought "in any court of competent jurisdiction . . . ."  Superior Courts in California are courts of general jurisdiction, and the appellate court ruled that section 6259 should not be read to defeat the exercise of the court's discretion.  Instead, the court interpreted section 6259 as a venue statute.  Thus, absent another applicable statutory provision, venue in this case would be proper only in Sacramento County, where the records are kept.  But Code of Civil Procedure section 401 provides for jurisdiction in this case wherever the Attorney General has an office.  Since section 401's purpose is to reduce the expense of litigating against state agencies, section 401 predates the CPRA, and the Legislature was presumed to be aware of section 401 when it passed the CPRA, section 6259 of the CPRA does not supersede section 401.  Therefore, the Los Angeles Superior Court had jurisdiction to hear the case, and venue in that court was proper.

Agency May Not Shift Cost of Redacting Electronic Records Requested under Public Records Act to Requester

In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, published May 28, 2020, the California Supreme Court reversed an appellate court decision allowing a city to shift the cost of editing exempt material out of police body camera footage requested under the California Public Records Act.  At issue was interpretation of Government Code section 6253.9, subdivision (b)(2).  Section 6253.9 requires agencies to produce electronic records requested under the CPRA in any electronic format in which the agency holds the information.  Under subdivision (b)(2), “the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record” if “[t]he request would require data compilation, extraction, or programming to produce the record.”   The city contended that redacting exempt material from electronic records such as video footage was "extraction" for which it could recover staff time and expenses.  The requester contended that "extraction" referred to constructing a record by removing data from a computer or other source.  The trial court agreed with the requester.  The appellate court agreed with the city.

The Supreme Court concluded that the requester's interpretation was correct.  Construing the language of the statute, the legislative intent of limiting the expense of requesting electronic records (by preventing agencies from increasing expense by printing out electronic records), and the statute's purpose, the Supreme Court interpreted the term "extraction" to cover costs uniquely associated with the production of electronic record copies—including the need to retrieve responsive data to produce a record that can be released to the public—but not the costs of redacting exempt information from the record.

One justice wrote a separate concurring opinion, opining that if a data retrieval method also included simultaneous redaction of exempt material, the opinion might not limit charging the requester the cost of retrieval.

Social Worker Did Not Violate Family's Fourteenth Amendment Rights by Sending False Letter about Custody to Court, because No Loss of Custody Occurred

In Dees v. County of San Diego, published May 27, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed a district court's summary judgment ruling, and affirmed in part and reversed in part the court's ruling on post-trial motions.  The defendant social worker took part in an investigation of an alleged impropriety concerning a stepfather and his daughter.  The social worker initially ordered that the stepfather's two stepdaughters be taken out of the stepfather's custody.  A family court then restored custody.  The social worker was ordered to wrap up her investigation.  Instead, the social worker interviewed one of the stepdaughters, who was nine and suffered from cognitive disabilities, at the stepdaughter's school.  The interview lasted five minutes.  The social worker advised the stepdaughter that she could have a school district employee present during the interview, and that the stepdaughter could end the interview at any time.  The stepdaughter did not request an employee be present, and did not terminate the interview.  After the interview, the police told the social worker that their investigation was closed.  The social worker then sent a letter to the family court falsely stating that the stepdaughters had been removed from the custody of their mother.  The family court never acted on the letter.  The mother and stepdaughter sued the social worker and the county, alleging that the letter violated their Fourteenth Amendment right to family association, and that the interview was a seizure of the girl that violated the Fourth Amendment.  The district court entered summary judgment on the Fourteenth Amendment claim.  The Fourth Amendment proceeded to trial, and the jury found that there was no Fourth Amendment seizure.  On the plaintiffs' post-trial motions, the district court granted the plaintiffs judgment as a matter of law on the Fourth Amendment claim.  It alternatively granted new trial.

The appellate panel unanimously affirmed the grant of summary judgment on the Fourteenth Amendment claim.  Ninth Circuit precedent establishes that, to establish a Fourteenth Amendment claim based on a minor being separated from his or her parents, plaintiffs must establish that an actual loss of custody occurred; a threat or investigation is not enough.  Since the family court did not act on the letter, and the mother did not actually lose custody, there was no Fourteenth Amendment violation.  The panel also unanimously ruled that the district court erred in granting judgment as a matter of law.  Because the interview was short, the girl did not ask for the interview to be terminated, and her emotional state after the interview was disputed, there was substantial evidence to support the jury's verdict.  But the majority affirmed the district court's alternative grant of new trial.  It deferred to the district court's ruling that the weight of the evidence was against the jury's decision.  A dissenting judge opined that based on the evidence, the district judge abused the judge's discretion in finding the weight of evidence against the verdict.

Court May Not Condition Intervention in Reverse-CPRA Suit on Waiver of Prayer for Statutory Attorney Fees

In Carlsbad Police Officer's Association v. City of Carlsbad (ACLU), published May 18, 2020, the Fourth District Court of Appeal, Division 1 reversed an order conditioning the intervention in a reverse California Public Records Act petition of the ACLU and various media organizations on the striking of the intervenors' prayers for attorney fees under Code of Civil Procedure section 1021.5.  Multiple police officer associations brought a reverse-PRA action against their respective agencies, seeking to limit the agencies' release of records under Senate Bill No. 1421.  The new law, expanding access to police records, took effect January 2019.  The police officer associations sought to prevent their agencies from releasing pre-2019 records, on the ground that the new legislation was not retroactive.  The ACLU and media organizations had CPRA requests pending with the agencies, seeking pre-2019 records.  They sought to intervene in the petition both on a permissive basis and as a matter of right.  The associations and some of the agencies opposed intervention.  The trial court permitted intervention, but conditioned it on the intervenors striking their requests for section 1021.5 fees.  After the trial court entered a judgment permitting release of pre-2019 records, the intervenors appealed the order conditioning intervention.

The appellate court ruled that the trial court erred. Successful intervenors in reverse-PRA actions are generally entitled to fees under section 1021.5 if they meet the criteria under the statute. Because the intervenors' interests in recovering records under their pending CPRA requests were affected by the reverse-CPRA order, and the existing parties were not interested in representing the intervenors' position, their intervention was as a matter of right.  The trial court's inherent power to control litigation entitled it to condition intervention on reasonable, housekeeping-type procedural limitations.  But it did not have discretion to impose a substantive limitation, such as conditioning intervention on giving up the right to seek attorney fees.

Equitable Tolling Does Not Apply to Deadline to Present Claim

In Willis v. City of Carlsbad, published May 12, 2020, the Fourth District Court of Appeal, Division 1 affirmed a judgment after jury trial in favor of the defendant city.  The plaintiff, a city police officer,  reported perceived misconduct in 2012.  In 2013, after the report was revealed, he was reassigned from a crimes of violence unit to patrol.  In 2013, he filed a retaliation complaint with the Labor Commission.  In 2013, he applied for open detective positions, but was passed over in favor of other candidates.  In early 2015, the plaintiff complained about a program he believed was an illegal quota.  In July 2015, he was passed over for a promotion.  In December 2015, he presented a claim for damages to the city, complaining of his 2013 transfer and his various denials of promotion.  In February 2016, he filed suit.  The court granted the city’s motion to strike his allegations of retaliation that occurred more than six months before he presented his claim.  The jury eventually found in the plaintiff’s favor that his reporting was a factor in the city’s decision to deny him the July 2015 promotion, but also found the city would have denied the promotion for independent reasons.  Judgment was entered for the city.  The plaintiff appealed the trial court’s decision on the motion to strike.  He argued, in the alternative, that his complaint to the Labor Commission equitably tolled his time to present a claim, or that his claim was timely under the continuous violation doctrine.

The appellate court ruled that the trial court properly struck the allegations of retaliation that occurred before June 2015, because the plaintiff’s claim was untimely.  The court rejected the argument that the time to present the claim was equitably tolled.  While a statute of limitations for filing a lawsuit may be equitably tolled while the plaintiff pursues an alternative remedy, equitable tolling does not apply to Government Code section 911.2’s six-month deadline to present a claim for damages.  The claim deadline is not a statute of limitations.  No case has held that the deadline to present a claim may be equitably tolled.  Instead, the claim deadline is strictly enforced, to promote the policies behind requiring claims for damages.  The appellate court also rejected the argument that the claim was timely because the continuous violation doctrine applies, delaying accrual until the last act of retaliation.  When his transfer requests were denied, and the positions he sought were filled, as part of the alleged retaliation, the acts of alleged retaliation gained permanence, and the cause of action for that retaliation accrued.

Councilmember Who Assists Appeal from Administrative Decision That Council Will Review Displays Improper Bias

In Petrovitch Development Company, LLC v. City of Sacramento (Johnson), published May 8, 2020, the Third District Court of Appeal affirmed a trial court decision issuing a writ of administrative mandate setting aside the respondent city's decision on an administrative appeal.  By an 8-3 vote, the city planning commission issued a conditional use permit allowing the petitioner to build a gas station in the shopping center zone of a development.  A neighborhood association opposed the station's construction.  It appealed the decision to the city council.  A councilmember who represented the neighborhood made statements at a public meeting that he did not feel the gas station would fit in, but said he had not yet made up his mind.  The councilmember communicated with the mayor, counting the votes of councilmembers against the project and providing the mayor with talking points against the project.  He texted with the head of the neighborhood association, who then contacted other councilmembers using points similar to the councilmember's talking points.  When asked at a councilmeeting whether he had talked to other councilmembers about the appeal, the councilmember replied, "I haven't talked to all the councilmembers."  Before the appeal hearing, the councilmember texted the association president about the sequence of events at the hearing, and advising him on how to respond to the person who spoke before the president spoke.  At the hearing, the councilmember moved to deny the permit.  The permit was denied seven to two.  The trial court granted the writ setting aside the decision on the ground of impermissible bias.

The appellate court agreed.  Neither the councilmember's statements at the public meeting, nor membership in the association appealing the decision, nor living in the neighborhood near the planned gas station established impermissible bias.  But his other actions--counting councilmembers supporting his position, e-mailing talking points to the mayor, coaching the appellant, then making the motion to deny the permit--crossed the line into impermissible advocacy on the issue before him.  

Anti-SLAPP applies to 42 U.S.C. Section 1983 Claims Litigated in State Court

In Patel v. Chavez, published April 30, 2020, the Second District Court of Appeal, Division 1 affirmed an order granting a special motion to strike the plaintiff's complaint under the Anti-SLAPP statute.  The defendant, the plaintiff's employee, filed a wage claim with the California Labor Board, alleging failure to pay minimum wage and other wage claim violations.  After the defendant testified at a Berman hearing, the Labor Commissioner issued a ruling granting the defendant over $200,000 in unpaid wages, penalties, and interest.  The plaintiff then sued the defendant and two Labor Commissioner officials under 42 U.S.C. section 1983, seeking $10 million.  The trial court granted the defendant's anti-SLAPP statute.  The plaintiff contended that the anti-SLAPP statute did not apply to federal claims brought in state court.

The appellate court ruled that anti-SLAPP applied.    Anti-SLAPP is a procedural law, not a substantive immunity.  A forum generally applies its own procedural law to the causes before it.  Anti-SLAPP therefore applies unless (1) the federal statute provides otherwise, or (2) the statute affects the plaintiff's substantive federal rights and is therefore preempted.  Multiple cases have held that the first possibility does not apply to anti-SLAPP; nothing in section 1983 imposes federal procedural law on state courts trying civil rights actions.  As to the second possibility, anti-SLAPP applies neutrally to all causes of action and does not target government conduct.  Nothing in the expedited summary-judgment-like anti-SLAPP procedure stands as an obstacle to accomplishing the goals of section 1983.  It also does not condition plaintiff's rights under section 1983 on compliance with the anti-SLAPP statute; rather, it conditions the rights on showing some probability that the plaintiff has some right to prevail at all under section 1983.  Given the low bar for prevailing against an anti-SLAPP motion, the fee-shifting provision for successful defendants is not a sufficient bar to discourage section 1983 plaintiffs.

Trial Court Erred in Calculating Lodestar for FEHA Fee Award Based on Local Rates where Plaintiff Required to Use Out-of-Town Counsel

In Caldera v. Department of Corrections, published April 30, 2020, the Fourth District Court of Appeal, Division 3 reversed a fee award under FEHA and remanded it for recalculation.  The plaintiff sued his employer for disability discrimination and harassment, based on mockery of his stutter.  He contacted numerous lawyers in the Inland Empire area of California (San Bernardino and Riverside Counties), who turned him down.  He eventually obtained counsel in Pasadena.  He litigated the case through two appeals and a trial.  His attorneys sought FEHA fees with a lodestar figure based on rates in the Los Angeles area.  They sought a 2.0 multiplier, based on the importance and novelty of the suit, and the attorneys' preclusion from other work while they handled a litigation that spanned nearly a decade.  The trial court calculated a lodestar rate based on the fees of attorneys in the San Bernardino area.  The court found the factors for a multiplier present, but declined to grant one.  It ruled that the factors considered in the multiplier had already been considered in calculating the lodestar rate, which it deemed at the higher end of San Bernardino hourly rates.

The Court of Appeal ruled that the court erred in setting the lodestar based on San Bernardino rates. When a plaintiff needs to hire out-of-town counsel, a trial court must consider counsel’s “home market rate” when setting the hourly rate, rather than the local market rate.  That is necessary to encourage counsel to take cases.  While the court did not necessarily abuse its discretion by declining a multiplier if the same factors went into calculating the rate, the appellate court could not determine the amount the court increased the rate based on those factors, since the trial court erred in setting the lodestar rate.  The appellate court directed the trial court that its ruling would be more easily understood if it applied the factors in calculating a multiplier.