The Good, The Bad, and
the Unbelievable?
The Most Significant Decisions of
2005 (so far)
Pollak, Vida & Fisher
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Daniel P. Barer

Judy L. McKelvey
Claims – Childhood Abuse
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In 2005, a 27-year-old discovers that in 1990 a
school teacher molested her, causing her current
psychological problems.
Within six months of her discovery, she presents
a claim against the school district.
Is the claim timely?
Claims-Childhood Abuse

It Depends on the Court.

Los Angeles Appellate Court: Untimely.
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County of Los Angeles v. Superior Court (N.L.) (2005) 127
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San Diego Appellate Court: Timely.

Shirk v. Vista Unified School Dist. (2005) 128 Cal.App.4th 156;Review

California Supreme Court will settle it.
Cal.App.4th 1263.
Granted.
Claims – Childhood Abuse


If the molestation is discovered while the victim is still a
child, how long does he have to present a claim?
If child did not perceive molestation was wrongful, cause
of action accrues when parent discovers or should
discover the molestation;

One year from that date to file late-claim application.
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Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th
1405.
Claims – Claim Variance
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A JPA terminates its general manager. The
manager presents a claim alleging wrongful
termination in retaliation for whistleblowing.
He then files a lawsuit alleging termination in
violation of public policy based on retaliation and
violation of his first amendment rights.
Did the manager have to mention those theories
in his claim?
Claim – Claim Variance


No.
The claim set forth the basic facts (fundamental acts or omissions and responsible
parties) and cause of action (wrongful termination) on which the later suit was
based.

New facts that expand on the fundamental facts in the claim, and new theories that
aren’t new causes of action (e.g. termination in violation of public policy) permitted.

Causes of action not set forth in claim, and theories of recovery based on different
acts or omissions than those in claim, are barred.

Stockett v. Association of California Water Agencies Joint Powers Ins. Authority

(2004) 34 Cal.4th 441.
See also Dixon v. City of Livermore (2005) 127 Cal.App.4th 32 (claim alleging city
and private company were joint venturers supported theory that the private company
was the city’s employee or agent).
Regulatory Takings


A state law caps rents oil companies can charge
gas station owners. An oil company contends
that this regulation does not “substantially
advance” its goal (keeping gas prices down) and
is therefore a “taking” without compensation of
its ability to make more money, in violation of
the Fifth Amendment.
Is any regulation that fails to “substantially
advance” a government interest a taking?
Regulatory Takings

No. Agins v. City of Tiburon
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In determining whether a regulation effects a regulatory taking, factors to
be considered include:
(1980) 447 U.S. 255’s “substantially advances” language is not a valid
method of identifying a compensable regulatory taking.
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Economic impact;
Interference with investment-backed expectations;
Physical invasion;
Extent of effect on property interests; and
Balance of benefits and burdens to promote the public good.

Lingle v. Chevron U.S.A., Inc. (2005) 125 S.Ct. 2074.

See also Wisconsin Builders Ass’n v. Wisconsin Dept. of Transp. (2005) 702
N.W.2d 433.
Dangerous Property Conditions Sidewalk
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
Plaintiff trips on a rise in the city sidewalk
in front of a store. A city ordinance makes
the owner of property abutting a city
sidewalk liable for injuries caused by
dangerous conditions on that sidewalk.
Can the city cross-complain against the
store owner under the ordinance?
Dangerous Property Conditions Sidewalk
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
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Yes. State law (Govt. Code 835) does not preempt city
ordinances holding private property owners liable for
injuries on adjacent city property.
The property owner may also be held liable under a
common-law duty to maintain the sidewalk.
Gonzales v. City of San Jose (2005) 125 Cal.App.4th
1127
Dangerous Property Conditions Immunities
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
A path in a state vehicular recreation area
is filled with so many hazards it is
impossible to safely negotiate. Eight
accidents had occurred there. No signs
warn of the hazards. A off-highway
vehicle operator rides down the path,
crashes, and is killed.
Can the state be held liable?
Dangerous Property Conditions Immunities

No. The trail immunity (Govt Code 831.4)
applies. The immunity applies to
improved areas such as state recreational
areas. The failure to warn does not affect
the immunity.

Astenius v. State (2005) 126 Cal.App.4th
472.
Employment – Discrimination and
Volunteers
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
A disabled community volunteer, who had been
issued a city uniform and identification card, had
regularly assigned work hours, but who received
no pay, is terminated from his position.
Is the volunteer entitled to damages for
wrongful discharge or employment
discrimination under the Fair Employment and
Housing Act (FEHA)?
Employment -- Discrimination
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No. A volunteer working for a public entity is not an “employee”;

Legal standards outside FEHA to be considered in defining an
“employee” :
and his position isn’t protected under FEHA.
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Direction or control of employer under appointment or contract of hire
or apprenticeship. (CCR, Title 2, section 7286.5(b).)
Local ordinances defining “employment” or hiring process.
Worker’s comp coverage (excludes public agency volunteers). (Labor
Code section 3352(i).)
Title VII’s definition of employment. (42 U.S.C. section 2000e et seq.)
Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625.
Employment – Retaliation
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

A public employee alleged that she suffered
retaliation for complaining about racial
discrimination.
The “retaliation” consisted of oral and written
job criticism; an appealable negative evaluation;
a suspension (not implemented due to leave of
absence); and a lateral transfer.
Can the employee sue under FEHA for
retaliation?
Employment - Retaliation
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Probably. Actionable retaliation is decided on
a case-by-case basis, and requires an
“adverse employment action” causing material
and substantial changes to the terms and
conditions of employment.
Employment - Retaliation


Where public employee alleged “retaliation”
consisting of job criticism, negative
evaluation, suspension, and transfer, Court of
Appeals held that such actions were not
actionable under FEHA because they did not
cause “substantial and tangible harm” (e.g.,
demotion, loss of pay or benefits, change in
job title or responsibilities).
McRae v. Dept. of Corrections (2005) 127
Cal.App.4th 779, review granted.
Employment-Retaliation
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
But under a recent case that did not involve a
public entity, the California Supreme Court
held that actions such as job criticism and
change of job responsibilities can be
actionable under FEHA, if they meet the
“materiality” test.
Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028.
Employment – Age Discrimination


Older police officers working for a city
receive less generous raises than younger
officers.
Is that alone enough to establish liability
under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. section
623?
Employment – Age Discrimination
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
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No. Disparate impact alone isn’t sufficient to state an
age discrimination claim.
The city’s pay plan decisions were properly based on
reasonable factors other than age (bringing salaries up
to regional levels); and responded to the goal of
retaining police officers. They did not violate the ADEA.
Smith v. City of Jackson (2005) 125 S.Ct. 1536.
Cf. Sloat v. Rapid City Area School Dist. No. 51-4
(D.S.D. July 6, 2005) 2005 WL 1595583.
Police Liability-RICO


Plaintiff alleges that LAPD Rampart CRASH
officers falsely arrested him, and caused him to
be falsely convicted and imprisoned for ADW by
presenting false evidence. He alleges he lost
employment and employment opportunities
while under arrest and imprisoned.
Can plaintiff sue the police officers for treble
damages under the Racketeer Influenced and
Corrupt Organizations Act ?
Police Liability - RICO

Yes. RICO requires injury to “business or

But the treble damages are limited to the wages
and wage opportunities he alleges he lost.

Diaz v. Gates (9th Cir., en banc, 8/16/05, _ F.3d
property,” determined under state law. Under
California law, plaintiff’s claims amount to
interference with contract & with potential
contractual relations.
__ [2005 WL 1949879]
Police Liability – Premises
Searches
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
Police obtain a warrant to search a house
where a street gang member resides for
weapons. While there, they handcuff all
of the inhabitants and detain them for the
duration of the search, and question them
about their immigration status.
Are the police liable for violating the
inhabitants’ Fourth Amendment Rights?
Police Liability – Premises
Searches

No. Given the inherent danger of a weapons

Muehler v. Mena (2005) 125 S.Ct. 1465.

C.f. San Jose Charter of Hells Angels Motorcycle
Club v. City of San Jose (9th Cir. 2005) 402 F.3d
search, the police reasonably detained and
handcuffed the inhabitants regardless of
whether any actually posed a threat. The
questioning was not an additional search.
962 – unreasonable conduct while executing
search warrant, including shooting dogs.
Police – Parolee Searches
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Plaintiff is a parolee. A condition of his parole is that he
submit to warrantless searches. He is also the subject of
an outstanding arrest warrant.
While he is walking down the street, police stop and
search him. They have insufficient “reasonable
suspicion” to stop or search him. They do not know of
his parolee status or arrest warrant until after searching
him.
Can the police be held liable for an illegal search?
Police – Parolee Searches

Yes. Even a probationer or parolee subject to

Moreno v. Baca (9th Cir. 2005) 400 F.3d 1152.

C.f. People v. Reyes (1998) 19 Cal.4th 743 – searches of
warrantless searches can’t be searched without
reasonable suspicion. The arrest warrant does not
justify the stop because the arresting police did not
know of it.
parolees subject to warrantless search condition does
not require reasonable suspicion; only need not be
arbitrary or capricious.
Police-Liability for Placing Person
in Peril

A mother complains to police that a
neighbor’s minor child molested her
daughter. An officer states he will notify
her before contacting the suspect’s family.
He does not do so. After informing the
mother, the officer states he will patrol the
area. Relying on that, the mother and her
husband stay home that night. The
suspect attacks them in their home, killing
the husband and wounding the mother.
Police – Liability for Placing
Persons in Peril

Can the officer be held liable for the attack under 42
USC Section 1983?

Yes. If the officer acted with deliberate indifference, he

Split opinion.

Kennedy v. City of Ridgefield (2005) 411 F.3d 1134.
violated the mother’s substantive due process rights by
placing her in danger and then inducing reliance on false
assurances.
Condemnation and Redevelopment


A city council determines the city is economically
distressed. It forms a redevelopment agency,
which plans to redevelop a residential area into
a commercial park. It hopes to generate new
jobs and revenue.
Plaintiffs own homes in the redevelopment area.
Their property is not blighted. They refuse to
sell their land to the redevelopment agency.
The agency condemns the plaintiffs’ property.
Condemnation and Redevelopment

Has the agency violated the Fifth Amendment by taking property for
a private, rather than a public purpose?

No. An economic redevelopment plan is a public purpose. As long

Kelo v. City of New London, Conn. (2005) 125 S.Ct. 2655.

as the condemnation is part of a carefully-considered overall plan,
the property taken need not be blighted.
But state law can require more than the US constitution does.
California law prescribes that the a city may only take land for
economic development purposes in blighted areas. Health & Safety
Code sections 33030-33037.
Brown Act Round-Up
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
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Two city council members (sole members of land
use committee) hold private meeting on subject
outside committee’s jurisdiction, then give
counsel advisory opinion. They were not a
quorum. Violation?
No. Brown Act does not apply.
Taxpayers for Livable Communities v. City of
Malibu (2005) 126 Cal.App.4th 1123.
Brown Act Round-Up

A city council holds a special meeting, closed
session, to decide whether to terminate its
financial director for misconduct. It agendizes
the meeting as “consideration of Public
Employee (employment contract).” Violation?

Yes. Should at least agendize it as “Public

Moreno v. City of King (2005) 127 Cal.App.4th
employee dismissal.”
17 .
Brown Act Round-up
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Does a public body have to allow public
comment on whether to place an item on the
body’s agenda?
No. The Act does not require that.
Coalition of Labor, Agriculture & Business v.
County of Santa Barbara Bd. of Sup'rs
(2005) 129 Cal.App.4th 205.
Thank You

Daniel P. Barer

Judy L. McKelvey
POLLAK, VIDA & FISHER
1800 Century Park E., 4th Floor
Los Angeles, CA 90067
(310)551-3400
dpb@pvandf.com
www.pvandf.com
www.govlawweb.com
