Government Liability Update

Petitioners Who Obtain Writ Enforcing Initiative Entitled to Private Attorney General Fees

In Friends of Spring Street v. Nevada City (Poe), ordered published April 4, 2019, the Third District Court of Appeal reversed a trial court decision denying costs and an award of attorney's fees under Code of Civil Procedure section 1021.5 to the petitioners.  The respondent city's citizens voted for a zoning initiative repealing an earlier initiative allowing bed and breakfasts to operate in residential and commercial areas.  After the initiative passed, a bed and breakfast continued operating, and then was sold and used for a residence.  A later owner sought to recommence the earlier conditional use permit allowing the property to be used as a bed and breakfast.  The planning commission turned down the request, due to the discontinuity in the permits.  On appeal to the city council, the decision was overturned.  The petitioners petitioned for a writ to overturn the decision.  After the petition was filed, the city council passed an emergency ordinance dealing with discontinuity in B & B permits.  The petition was amended to challenge the ordinance.  The trial court denied the petition. In an unpublished opinion, the appellate court ruled that the challenge to the ordinance was properly denied, but that the petitioners were entitled to writ relief on the challenge to the permit.  On remand, the trial court issued a writ ordering the city to set aside its decision on the permit.  The city filed a return showing it had complied.  When the petitioners sought fees and costs, the trial court concluded that neither side had prevailed, and so the petitioners were not entitled to fees or costs.

The appellate court reversed.  Because the petitioners had achieved a significant goal of their litigation--challenging the permit decision--they were prevailing parties.  Further, by enforcing the initiative that the voters had enacted, the petitioners vindicated an important public right, satisfying that prong of section 1021.5 fees.  The appellate court remanded the matter to the trial court to determine whether the other prongs of section 1021.5, such as a financial burden that exceeds the petitioners' economic interest in the matter, were met.

Appellant Is Not Successful Party for Purposes of Private Attorney General Fees if Published Opinion Merely Affirms Trial Court's and Agency's Relief

In Hall v. DMV, published August 15, 2018, the Fourth District Court of Appeal, Division 1 affirmed a trial court order denying a petitioner's motion for attorney fees under the private attorney general fee statute, Code of Civil Procedure section 1021.5.  The petitioner was arrested for a suspected DUI.  Because he refused to provide a blood test, his driver's license was seized.  The petitioner challenged the seizure in a DMV hearing.  At the hearing, he objected to a "officer's statement" that had a discrepancy as to the date of arrest and the date petitioner was admonished about the consequences of refusing a blood test.  The hearing officer admitted the statement despite the discrepancy, ruled the discrepancy a clerical error, and sustained revocation of the license.  The petitioner sought a writ of mandate in superior court, on the ground that the officer's statement was inadmissible.  Before the hearing, the court allowed the petitioner to amend the petition based on a charge that the hearing officer had accepted bribes in other cases.  After the hearing officer pleaded guilty, the petitioner contended that lack of an impartial hearing officer violated his due process rights.  The trial court granted the petition on due process grounds, but did not grant the petitioner his requested relief of reinstating his license.  Instead, it remanded the matter to the DMV for a new hearing before an impartial hearing officer.   The DMV set the matter for a new de novo hearing.  Before the hearing, the petitioner appealed the ruling.  In a published decision, the Court of Appeal agreed that the petitioner had been deprived of due process, but rejected the requested relief and held that the trial court correctly ordered a new administrative hearing.  The appellate court awarded the petitioner costs, but did not state the basis for doing so.  The petitioner then sought over $145,000 in fees in the section 1021.5 motion.  The trial court denied the motion on the ground that the petitioner was not successful.

The appellate court agreed.  A section 1021.5 fee award requires that the petitioner be "successful."  A petitioner is successful if he achieves his primary litigation goal.  Here, the petitioner did not achieve his primary goal:  license reinstatement.  Instead, the result before the appeal was the same as the one afterward:  He was offered a new administrative hearing, which he did not want.  That the petitioner obtained a published decision that established an important right did not warrant fees if he was not successful.  He was awarded costs in the previous appeal because of the interests of justice, not because he was successful.  Further, he could not meet section 1021.5's test that the fee award is appropriate in light of the necessity and financial burden of private enforcement.  He started the petition before the basis for the fee motion (the charge that the hearing officer took bribes) appeared, and his attorney incurred approximately as much in fees on the petition before the amendment as afterward.  Further, once the trial court ruled that the petitioner was entitled to a new hearing, the litigation continued solely to vindicate the petitioner's personal goal of getting his license back.

Because Eleventh Amendment Bars Administrative Mandamus Petition against State in Federal Court, Suit against State University Barred by Failure to Exhaust Judicial Remedies

In Doe v. Regents of University of California, published June 6, 2018, the 9th Circuit Court of Appeals reversed denial of a motion to dismiss a suit against the Regents of the University of California and the Assistant Dean of Students at one of the UC universities.  The plaintiff, a university student, was suspended for alleged sexual assault of a fellow student.  The university held an administrative hearing before suspending him.  The plaintiff initially sued the Regents under Title IX, under 42 U.S.C. section 1983 (for denial of procedural due process), and under various state claims.  The district court granted a motion to dismiss the state law claims, on the ground that the plaintiff had not yet exhausted his judicial remedies by filing a Code of Civil Procedure section 1094.5 petition for writ of administrative mandamus challenging the administrative decision.  It dismissed the Title IX claim for failure to state a claim, and the section 1983 claim as barred by the Eleventh Amendment.  The plaintiff filed a first amended complaint that dropped the state law claims, added a section 1094.5 claim, reasserted the Title IX claim with additional allegations, added the assistant dean and asserted the section 1983 claims only against the assistant dean.  The district court dismissed the Title IX claim with prejudice and the section 1983 claim as barred by the Eleventh Amendment, and declined to exercise jurisdiction over the section 1094.5 claim.  The plaintiff filed a second amended complaint stating that the assistant dean was sued under section 1983 only in her official capacity, and reasserting the section 1094.5 claim.  The court denied a motion to dismiss.  The defendants took an interlocutory appeal.

The 9th Circuit ruled that the Eleventh Amendment barred the section 1094.5 claim.  Although there is an exception to the Eleventh Amendment for prospective injunctive relief, that exception does not apply when the state (or state instrumentalities, such as the Regents) is sued under state law.  A section 1094.5 claim is not just a procedural vehicle; it raises substantive state law claims.  Further, the complaint sought attorney fees under Government Code section 800(a), which applies when a complaint seeks relief under state law.  Since the only claim under state law was the section 1094.5 claim, he was seeking substantive relief.  The plaintiff therefore could not exhaust his judicial remedies in the federal lawsuit.  His Title IX and section 1983 claims were therefore barred by failure to exhaust judicial remedies.  Unless overturned by a writ of administrative mandamus under section 1094.5, the administrative decision had preclusive effect that barred his federal claims.

Newspaper Entitled to Private Attorney General Fees for Opposing Police Officers' and Union's Reverse-PRA Action

In Pasadena Police Officers Association v. City of Pasadena (Los Angeles Times Communications, LLC, Intervenor), published April 12, 2018, the Second District Court of Appeal, Division 1 reversed in part and affirmed in part a trial court ruling on attorney fees in a reverse-PRA action (a suit challenging a public agency's decision to produce documents under the California Public Records Act).  A group of organizations made a California Public Records Act request to the defendant city for a report concerning a police shooting.  While the request was pending, two city police officers and the plaintiff Association filed a reverse-PRA action seeking a restraining order barring release of the report.  The Los Angeles Times later intervened in the action on the side of those seeking release of the report.  After the trial court concluded that a redacted version of the report could be released, the appellate court issued a writ petition holding that the redactions went too far.  On remand, the trial court released the report with additional information unredacted.  The Times moved for fees and costs.  The trial court granted the Times attorney fees from the city under the CPRA, but only for the period that the matters was before the appellate court.  It denied the Times private attorney general fees under Code of Civil Procedure section 1021.5, applying a rule that section 1021.5 fees were not available against a party that was attempting to protect the party's private interests--here, the officers' privacy interests.

The appellate court reversed the decision on the section 1021.5 fees.  The policy applies only when fees are sought from a private individual who seeks a judgment that determines only the individual's private rights and did nothing to adversely affect the public interest besides being on the losing side of an important case.  Here, the police officers and the Association sought a judgment preventing the report's release for the benefit of all of the associations' members, as well as police officers in general.  Further, the individual police officers essentially acted as public officials in seeking to keep the report private.  The case therefore involved public officials and a public employee union pursuing litigation designed to expand the ability of police officers and departments to withhold information from the public.  Because the Times met the other requirements for obtaining fees under section 1021.5, it was entitled to fees from the officers and the association.

The appellate court affirmed the ruling that the Times was entitled to CPRA fees from the City only for the time that the action was pending before the appellate court.  The trial court's exercise of its discretion in determining the prevailing party and the reasonable period for fees was supported by substantial evidence.

Divided 9th Circuit Panel Holds That the Clearly-Established-Law Prong of Qualified Immunity Is Issue for Court, Not Jury

In Morales v. Fry, published October 16, 2017, a divided panel of the 9th Circuit Court of Appeals reversed in part and affirmed in part a judgment after jury trial in a 42 U.S.C. section 1983 suit against two police officers.  During a protest, Officer Rees put his hand on the plaintiff's shoulder to get her attention.  The plaintiff pulled her arm away abruptly and told the officer not to touch her.  Officer Rees lost sight of the plaintiff.  Later, the plaintiff turned Officer Fry's bicycle handlebar so that she could pass through a tight spot.  Officer Fry testified that she felt what she perceived to be a punch to her chest.  She believed the plaintiff had punched her. She yanked the plaintiff headlong over the bike, causing the plaintiff to fall on her back on top of other bikes.  Multiple officers converged on the plaintiff while she was down.  When the plaintiff started to stand up, Officer Rees, who had not been involved in the altercation, sprayed pepper spray into the plaintiff's eyes. The plaintiff was arrested and charged with the blow that Officer Fry perceived.  The charges were later dismissed. The plaintiff sued both officers. The district court denied summary judgment, based on factual disputes about what happened in the plaintiff's encounters with the officers.  At the close of evidence, the district court denied the officers' motion for a directed verdict.  The court's instructions to the jury included asking them whether the officers reasonably believed that their actions (Fry's arrest of the plaintiff and the officers' use of force) was lawful.  The jury found for the plaintiff on her excessive force claim against Officer Rees, but not on her excessive force and unlawful arrest claims against Officer Fry.  The plaintiff obtained nominal damages and attorney fees against Officer Rees.  Both sides appealed the judgment.

The majority decision reversed the judgment against the plaintiff concerning Officer Fry.  Rejecting previous 9th Circuit decisions as contrary to U.S. Supreme Court law, and following the majority of circuits, the majority concluded that the prong of qualified immunity that asks whether an officer violated clearly-established law is an issue for the court, not the jury, to decide.  By asking whether the officers reasonably believed they were violating the law, the court was asking the jury to decide whether the officers violated clearly-established law.  The error was not prejudicial, because the special verdict asked the jury whether the officer violated the plaintiff's constitutional rights regarding arrest and excessive force, and the jury answered, "no."  The verdict did not reveal whether the jury based its decision on the clearly-established prong of qualified immunity.  The district court should have the jury resolve the factual issues, and then decide as a matter of law whether the officers violated clearly established law.  The district court may either submit interrogatories to the jury, to ask them to resolve the factual issues, or use a general verdict and then resolve all factual disputes in favor of the prevailing party.  The error was harmless as to Officer Rees, and the district court properly denied his motion for JNOV.  The jury could have determined that he used pepper spray in retaliation, rather than as a reasonable use of force, and such a use would violate clearly-established law.

The dissenting judge opined that the jury instructions were proper, and that the plaintiff failed to preserve her claim that they were erroneous.

Contractor's Attempt to Enforce Alleged Oral Contract with County Through Promissory Estoppel Lacks any Reasonable Basis, Justifying CCP 1038 Fee Award

In Ponte v. County of Calaveras, ordered published August 15, 2017, the Third District Court of Appeal affirmed both a summary judgment granted to the defendant county and an award of attorney fees to the County under Code of Civil Procedure section 1038.  The plaintiff contractor alleged that he performed work on a land failure on county property under an oral agreement with a county employee.  County ordinances required public contracts to be put out for bid and to contain a fixed payment.  The alleged oral contract met neither criterion.  The plaintiff contended he had a cause of action against the county for promissory estoppel, and that there is an emergency exception to the county's contractual requirements.  He further alleged that he should not be subjected to a fee award under section 1038 because under the circumstances he believed in good faith in his claims.

The appellate court rejected these arguments.  Promissory estoppel cannot be asserted against a public entity to bypass rules that require contracts to be in writing or be put out for bids, rules that reflect a public policy to preclude oral contracts or other exposures to liability, including claims of promissory estoppel.  The plaintiff was unable to identify any authority supporting his argument that emergencies provide an exception to this rule, or that private parties may declare a public emergency.  Nor was this an exceptional case that would warrant applying estoppel against a public entity in the interests of justice, since applying estoppel would undermine the public contract rules set forth by ordinance, designed to prevent oral contract claims.  The award of fees under section 1038 was proper, because to avoid paying fees under section 1038 when a public entity wins summary judgment and moves for fees, a plaintiff must show that the action was brought or continued with both subjective good faith and objective reasonable cause.  The plaintiff argued that he believed in good faith that he should be paid for his work.  But he failed to show that any reasonable attorney would have thought his claim tenable.  He therefore failed to show objective reasonable cause. 

Public Records Act Petitioner Is Prevailing Party if Discovery Prompts Agency to Disclose Responsive Documents

In Sukumar v. City of San Diego, published August 15, 2017, the Fourth District Court of Appeal, Division 1 reversed a trial court decision denying a fee motion brought by a California Public Records Act petitioner whose petition was defeated.  The petitioner sought records about his property and his neighbors.  Not satisfied with the city's production of documents, the petitioner brought a petition for writ of mandate under the CPRA.  The city objected to discovery the petitioner propounded, contending that discovery was not available in CPRA actions.  At a hearing on a motion to compel, a deputy city attorney stated on the record that the city had produced all responsive records.  She offered to provide a declaration to that effect.  The court ordered a deposition of a person most knowledgeable to confirm the city had produced all responsive documents.  The city undertook additional searches before and after the PMK deposition,  It located more responsive documents, and provided them to the petitioner.  The petitioner's CPRA petition was ultimately denied on the ground that the city had produced the responsive documents.  The petitioner moved for his attorney fees.  The trial court found that the petitioner was not the prevailing party, because the litigation had not motivated the city to produce the additional documents produced after the case started.

The appellate court ruled that no substantial evidence supported the trial court's finding.  A CPRA petitioner who loses the petition is nevertheless the prevailing party if the litigation results in documents responsive to the CPRA request being produced.  It is not enough that the documents are produced after the litigation begins; there must be a causal connection between the litigation and the production, so that the agency produces documents it would not have produced if the litigation had not taken place.  Here, the deputy city attorney's representation that everything had been produced, and then the additional production of documents after the PMK deposition was ordered, indicated that the city undertook additional searches in response to the PMK deposition order and discovered documents it had mistakenly not produced before.  That established that the petitioner was the prevailing party, and entitled to his fees under the CPRA.

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.

Prevailing Student Entitled to Fees under IDEA for Defending Victory on Appeal, but Not After Student Graduates from High School and Right to FAPE No Longer Threatened

In Irvine Unified School Dist. v. K.G., published April 13, 2017, a divided panel of the 9th Circuit Court of Appeals affirmed an attorney fee award to a student under the Individuals with Disabilities Education Act, but reversed the order setting the amount of the award and remanded the matter back to the district court for recalculation.  Three agencies agreed that K.G. was entitled to a Free and Appropriate Public Education under the IDEA, but each agency contended it was not responsible for paying for K.G.'s special education.  K.G. initiated an action in the California Office of Administrative Hearings asking that an administrative law judge deem one of the three agencies responsible for paying for his education.  The ALJ deemed the school district responsible.  The school district brought an IDEA action in federal court challenging that ruling, and arguing that the state was the responsible agency.  It named the other agencies and K.G. as defendants.  Before the district court ruled on the case, K.G. graduated from high school.  There was no threat to take his diploma away.  During the district court proceedings, K.G. argued that the state was responsible for his education  Seven months after K.G. graduated, the district court ruled that the state was responsible.  The state appealed to the 9th Circuit.  The 9th Circuit ruled that the district was responsible.  On remand, the district court awarded K.G. his attorney fees.  The school district appealed the fee award.

The 9th Circuit ruled that K.G. was entitled to attorney fees.  He brought the administrative action because the dispute over funding threatened his FAPE.  He obtained an enforceable decision in that action that one of the agencies was responsible for his education.  The district "kept the meter running" by bringing the district court suit while K.G. was still a student.  The majority held, however, that K.G.'s fees should be reduced if it was unreasonable for his attorneys to continue litigating (rather than seeking K.G.'s dismissal from the suit as a defendant) after K.G. graduated and could no longer benefit from the litigation.  A dissenting judge opined that the fee award should not be reduced.

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.