Government Liability Update

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. 

Because Law Did Not Clearly Establish Takedown of Person Keeping Officers Out of Home Was Excessive Force, Officers Entitled to Qualified Immunity

In Emmons v. City of Escondido, published April 25, 2019, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant police officers in a 42 U.S.C. section 1983 case.  Officers were asked to conduct a welfare check on a woman and two children.  The month before, the woman's husband had been accused of domestic violence.  When the officers arrived at the apartment house where the woman lived, the woman's roommate and children were outside the apartment.  The roommate told the officers everything was fihe and that they were not needed.  The officers proceeded to the apartment.  The woman and her father were inside.  The woman refused to allow the officers to enter.  The father emerged from the apartment.  According to the father, he stepped out of the apartment with his back to the exterior hallway and began to close the door.  The officers' bodycams recorded one of the officers telling the man not to close the door, to put his hands behind his back, and to get on the ground.  As the officer said this, he grabbed the father and threw or tackled him to the ground.  The 9th Circuit initially ruled that the officers were not entitled to qualified immunity as to the use of force.  The Supreme Court granted certiorari, reversed as to one officer, and vacated and remanded as to the officer who performed the takedown.

On remand, the 9th Circuit concluded the officer was entitled to qualified immunity.  The law did not clearly establish that stopping and taking down a man under the circumstances here was excessive force.  Case law establishing the right to be free from use of force in response to mere passive resistance was not directly on point; otherwise the Supreme Court would not have vacated the denial of summary judgment.  No case was so precisely on point as to clearly establish the use of force was unconstitutional.

Statute of Limitations on Fourth Amendment Action Is Not Tolled During Plaintiff's Successful Appeal from Criminal Conviction; Reversal Based on Exclusionary Rule Is Not Favorable Termination for Malicious Prosecution Purposes

In Mills v. City of Covina, published April 24, 2019, the 9th Circuit Court of Appeals affirmed a district court's dismissal of a plaintiff's 42 U.S.C. section 1983 lawsuit.  In 2013, the plaintiff was stopped and searched. Incriminating evidence was found in his car.  In the criminal prosecution against him, the plaintiff moved to suppress the evidence based on lack of probable cause to stop and search him.  The motion was denied.  During the trial, the plaintiff argued the evidence was planted.  He was convicted. In 2016, the California Court of Appeal reversed the conviction, on the ground there was no probable cause for the stop and search, and ruled the suppression motion should have been granted.  Because the ruling left no evidence to support a conviction, the appellate court remanded for reversal.  The plaintiff then sued the arresting officer, the defendant city, and the police chief for Fourth Amendment violations based on the stop, search, and arrest; a malicious prosecution claim under section 1983; and a Monell claim based on malicious prosecution.  The district court dismissed the Fourth Amendment claims as time-barred.  The court later granted the City and arresting officer judgment on the pleadings as to the malicious prosecution and Monell claims.

The 9th Circuit agreed the Fourth Amendment claims were time-barred.  The claims accrued in 2013 when the search was conducted and the plaintiff arrested.  Government Code section 945.3 tolled the statute of limitations during the criminal proceedings in the trial court.  The plaintiff contended that during his appeal, Code of Civil Procedure section 356 tolled the statute for suing on the Fourth Amendment claims, because those claims were barred by Heck v. Humphrey until the conviction was set aside.  Section 356 tolls statutes of limitations during the time the plaintiff is legally prevented from taking action to protect his rights.  But section 356 requires a definitive bar to commencing an action.  The Heck bar did not prevent the plaintiff from commencing a section 1983 action for the Fourth Amendment violation.  Even if the district court dismissed the action at that time based on Heck, the plaintiff would have been able to revive the action once the conviction was overturned.  The two-year statute of limitations thus ran on the Fourth Amendment claims before the plaintiff filed suit.

The malicious prosecution and Monell claims were not time-barred.  Further, the district court erred in ruling collateral estoppel barred the claim, because his conviction, which was eventually reversed, was not a final ruling.  But the district court correctly ruled that the reversal was not a favorable termination of the criminal action.  Because the state appellate court reversed on the exclusionary rule, there was never a ruling that the plaintiff did not commit the criminal offense.  He therefore could not meet the favorable-termination element of malicious prosecution.

Contention That City Council Violated Brown Act Is Moot Where Council Unequivocally States It Will Cease the Challenged Conduct

In Transparentgov Novato v. City of Novato, published April 10, 2019, the First District Court of Appeal, Division 1 affirmed an order denying a petition for writ of mandate and for declaratory relief against the defendant city.  At a city council meeting, the councilmembers discussed putting discussion of a public works project on a future agenda (which the council rules permitted) and forming a subcommittee to study another project.  The plaintiff sent the city a cease-and-desist letter alleging that the city council violated the Brown Act by discussing substantive portions of the project on which the subcommittee was formed without giving proper notice.  The city responded in writing that in the future it would not establish subcommittees at a meeting without first placing the item on the posted agenda.  It later passed a resolution barring members from orally requesting that an item be placed on a future agenda.  The plaintiff then filed the action asking the court to declare that the discussion of the subjects violated the Brown Act, and seeking a writ petition directing the council to address only items properly on the posted agenda.

The appellate court ruled that the relief requested was moot.  Under the statutes governing relief for violations of the Brown Act, the propriety of declaratory relief, and writ relief, relief is properly denied if the respondent has stated that it has ceased the challenged action and the evidence indicates it will not undertake the action in the future.

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.

Municipalities May Regulate Cellphone Equipment in Public Rights of Ways Based on Aesthetics

In T-Mobile West LLC v. City and County of San Francisco, published April 4, 2019, the California Supreme Court affirmed trial and appellate court rulings denying the plaintiff cell phone carrier's facial challenge to a city ordinance conditioning permits for installation of wireless carrier lines and equipment in public rights of ways on aesthetic grounds.  The carrier contended that local regulation of right-of-way equipment was preempted by Public Utilities Code sections 7901 and 7901.1.  Section 7901 permits telephone companies to install lines and equipment in public rights of way in such manner and at such points as will not "incommode the public use" of the rights of way.  Section 7901.1 sets forth a legislative intent to preserve municipalities' right to control the time, place, and manner in which roads, highways, and waterways are "accessed," but requires that the control exercised be applied to all entities in an equivalent manner.  The plaintiff contended that section 7901 preempted local regulation, and that the ordinance violated 7901.1 by treating wireless carriers different from other telephone companies.

The Supreme Court rejected both arguments.  The court ruled that municipalities have the police power to regulate based on aesthetics, and that section 7901 preempted that power only if it evinced an intent to take the power away.  Section 7901 grants telephone companies a statewide franchise to operate, and preempts requirements for local franchises.  But the ordinance concerns permits, rather than franchises.  The court also rejected the interpretation of "incommode" to include only obstructing travel.  There are many uses of rights of way beyond merely traveling them.  The court applied the various tests for preemption, and concluded that local regulation of aesthetics was not preempted under any of them.  The court rejected the argument on section 7901.1 by interpreting the term "access" to apply only to construction of telephone lines and equipment.  The municipality provides temporary access permits to both wireless and non-wireless telephone carriers to construct equipment, without regard to aesthetics.  It regulates only wireless carriers' equipment based on aesthetics, but only for ongoing maintenance and occupation of equipment in rights of way.  The municipality therefore does not violate the statute by treating wireless companies differently.

The Supreme Court noted that an earlier Ninth Circuit case, Sprint PCS Assets v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, reached the same result in an as-applied challenge to aesthetic regulation; and that under that case a wireless carrier has both state and federal remedies for local regulatory decisions that are unduly onerous or delayed.  (Pollak, Vida and Barer's attorneys were among the counsel for the city in the Sprint case.)

 

2019 Amendment to Police Record Disclosure Law Applies to Pre-2019 Records

In Walnut Creek Police Officers' Association v. City of Walnut Creek, ordered published March 29, 2019, the First District Court of Appeal, Division 4 denied a petition for writ of supersedeas filed in multiple consolidated matters.  The appellants contended that Penal Code section 832.7(b)(1), as amended in 2019, did not apply to pre-2019 police records, because that would be improper retroactive application of the new law.  The amended statute prescribes that police personnel records relating to police shootings, uses of force resulting in death or great bodily injury, or sustained findings of various types of misconduct are not confidential and shall be made available under the California Public Records Act.  The appellate court determined that the appeals lacked merit.  Because the event necessary to trigger the law's application--a request for an agency's records--necessarily occurs after the law's effective date, and the new law does not change the legal consequences for officer conduct described in pre-2019 records, application to pre-2019 records is not improperly retroactive.

Section 364 Notice of Intent to Sue Does Not Toll Claim or Late-Claim Application Deadlines

In Last Frontier Healthcare District v. Superior Court (Harper), published March 26, 2019, the Third District Court of Appeal issued a writ reversing a trial court order granting a Government Code section 946.6 petition for late claim relief.  The plaintiff had surgery on February 17, 2017 at the Modoc Medical Center.  She alleges the surgery was negligent.  On January 31, 2018, Harper served on the medical center and the surgeon a Code of Civil Procedure section 364 notice of intent to commence a malpractice action.  The defendant healthcare district, which did business as the medical center, is a public entity.  It treated the 364 notice as a governmental claim.  ON March 16, 2018, it rejected the "claim" as untimely.  On April 6, 2018, the plaintiff submitted to the medical center an application for leave to present a late claim.  The application stated the cause of action accrued February 17, 2017.  The district denied the application as untimely.  The plaintiff then petitioned the court for relief under section 946.6.  The petition also alleged the cause of action accrued February 17, 2017.  The trial court granted the petition.  The court stated that it assumed the accrual date was the date of surgery. The court reasoned that the plaintiff's one-year deadline to apply for late-claim relief under Government Code section 911.4 was tolled by the 364 notice.

The Court of Appeal held that the trial court erred.  In Woods v. Young (1991) 53 Cal.3d 315, the California Supreme Court held that sending a notice of intent under section 364 tolled the statute of limitations for commencing an action.  But the government claim presentation deadline and the deadline for seeking leave to present a late claim are not statutes of limitation, and do not set forth the deadline for commencing an action.  The tolling set forth in Woods does not apply to the plaintiff's late-claim application.  Because filing a late-claim application with the entity within a year of accrual is a jurisdictional prerequisite to a Government Code section 946.6 petition, the trial court had no jurisdiction to grant the plaintiff relief.

The appellate court also rejected the plaintiff's argument that the trial court nevertheless had jurisdiction to grant the application, because the district did not establish that her application was presented more than a year after accrual.  The plaintiff, as the party seeking relief under the petition, had the burden of raising an issue on the date of accrual.  She conceded in her application and petition that her cause of action accrued on the date of surgery.

Because the Law Does Not Clearly Establish That Retaining Property Lawfully Seized under Search Warrant Violates Constitution, Officers Accused of Retention Entitled to Qualified Immunity

In Jessop v. City of Fresno, published March 20, 2019, the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendant police officers.  As part of an investigation into illegal gambling machines, the officers obtained a search warrant for seizure of money and property related to the machines.  The officers executed the warrant and seized money and property from the plaintiffs' properties.  The officers provided the plaintiffs with an inventory of items seized.  The plaintiffs contended that cash and rare coins seized were not reflected on the inventory sheet.  The  officers denied any difference. The plaintiffs sued the officers under 42 U.S.C. § 1983, alleging violation of their rights under the Fourth Amendment and their substantive due process rights under the Fourteenth Amendment.  The district court granted the officers summary judgment based on qualified immunity.

The 9th Circuit agreed that the officers were entitled to qualified immunity.  The Ninth Circuit has not addressed whether alleged theft of property lawfully seized under a search warrant violates the Fourth or Fourteenth Amendment.  The circuits are split on the issue.  The absence of any cases of controlling authority or a consensus of cases of persuasive authority on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. The court did not reach the issue of whether the alleged misconduct did violate the Fourth or Fourteenth Amendment.

(Pollak, Vida & Barer represented the officers on appeal.)