JPA ADMINISTRATION AND COVERAGE CASES
By: Douglas Alliston, Alliston Law OfficeL.A. Unified Sch. Dist. v. Superior Court (June 1, 2023, S269608) _ Cal.5th _
Summary: Treble damages for childhood sexual assault pursuant to Code of Civil Procedure § 340.1 cannot be awarded against a public agency due to Government Code § 818, which prohibits imposition on a public agency of “damages imposed primarily for the sake of example and by way of punishing the defendant.”
Discussion: Code of Civil Procedure § 340.1, the statute of limitations for childhood sexual abuse, was amended in 2019 to add, among other things, a provision for an award of up to treble damages when a plaintiff suing for childhood sexual assault proves that the assault “was as the result of a cover up.” In this case, a teacher employed by Los Angeles Unified School District (LAUSD) sexually assaulted a 9th-grade girl known in this action as “Jane Doe.” Before that assault, LAUSD had learned that the same teacher had been involved in a romantic relationship with a female student and, instead of firing him, transferred him to the high school where he later encountered Jane Doe.
Jane Doe filed an action for sexual abuse, intentional infliction of emotional distress, and sexual harassment against the teacher, and for negligence and failure to report suspected child abuse against LAUSD. She sought economic and noneconomic damages, as well as punitive and exemplary damages from the teacher and up to treble damages from LAUSD under § 340.1(b)(1). LAUSD moved to strike the request for up to treble damages and related allegations, based on Government Code § 818, which states: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”
The superior court denied LAUSD’s motion and LAUSD filed a writ petition, which was granted by the Court of Appeal. The California Supreme Court granted review. Traditional punitive and exemplary damages are bared under Gov. Code § 818 as are “other damages imposed primarily for the sake of example and by way of punishing the defendant.” Accordingly, the Supreme Court recognized that the statute referred to any damages whose primary purpose was to punish or make an example of a defendant, even if provided for by a statute other the § 3294. The opinion points out that at common law, public agencies were traditionally immune to punitive damages, and that § 818 was a codification of the common law rule, which protects taxpayers and public funds.
In so holding, the court distinguished prior cases finding § 818 inapplicable to the 50% increase in workers’ compensation for serious and willful misconduct, penalties paid into the State Water Pollution Cleanup and Abatement Account for remediation of oil spills, and statutory penalties imposed on a county-run health care facility under the Long-Term Care, Health, Safety, and Security Act of 1973. It disapproved prior cases that held § 818 to apply only to damages that were “simply and solely punitive,” holding that this imposed a different standard from that provided for in § 818.
To reach its conclusion, the Supreme Court then looked at the purpose of the up to treble damages remedy in C.C.P. § 340.1, and pointed out that such an award requires proof of morally offensive conduct, and
the finder of fact is given discretion whether to award and how much to award up to the treble damage limit. These features imply a punitive purpose. Consequently, it concluded that such an award was primarily punitive and subject to the restriction imposed by Government Code § 818.
California Capital Ins. Co. v. Employers Compensation Ins. Co. (2023) 89 Cal.App.5th 638
Summary: Contribution between insurers requires that they insure the same risk, and the employers’ liability coverage in a workers’ compensation policy almost never applies in California.
Discussion: Remeyer and Torres both worked for La Sirena Grill. One night they had drinks together at La Sirena, then left for a party. A couple hours later, an intoxicated Torres drove his vehicle into a tree causing “traumatic, life-altering brain injuries” to his passenger, Remeyer. Remeyer sued La Sirena and Torres, alleging that Torres got drunk at La Sirena and that La Sirena management knew Torres was intoxicated when they left and did nothing to stop him driving. Remeyer alleged that Torres was in the course and scope of his employment and driving a vehicle entrusted to him by La Sirena, but did not mention that Remeyer was also an employee of La Sirena.
On the date of the accident, La Sirena had commercial general liability (CGL) coverage from California Capital Insurance Company (California Capital) and workers’ compensation and employers’ liability coverage from Employers Compensation Insurance Company (ECIC). California Capital’s CGL policy excluded coverage for workers’ compensation and bodily injury to an employee arising out of and in the course of employment. The ECIC policy covered workers’ compensation claims in Part One, and in Part Two covered bodily injury claims by employees arising out of and in the course of their employment if not otherwise covered by workers’ compensation.
La Sirena tendered the civil action to California Capital, which defended under a reservation of rights citing its exclusion for bodily injury to an employee arising out of and in the course of employment. During discovery, Remeyer’s employment at La Sirena came to light, but both employees had been off the clock for hours at the time of the accident and there remained an issue as to whether he could be considered in the scope of his employment at the time of the accident. Remeyer’s attorney eventually demanded California Casualty’s policy limits, and California Casualty notified La Sirena that if it paid to settle, the settlement would be under a reservation of rights to seek reimbursement from La Sirena. California Casualty also notified ECIC of the action, but ECIC denied coverage and refused to participate in the settlement. California Casualty continued to defend for several months before agreeing to pay its policy limits. California Casualty then settled its reimbursement claim with La Sirena and received an assignment of La Sirena’s rights against ECIC.
California Casualty then sued ECIC for equitable contribution. The trial court conducted a bench trial on stipulated facts. After taking the matter under submission, the court found the ECIC policy potentially covered the Remeyer lawsuit and California Capital was equitably entitled to half of what it expended for defense and settlement of that lawsuit, plus interest. In its minute order denying ECIC’s motion to set aside the judgment, the court acknowledged that the two policies were “mutually
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By: Douglas Alliston, Alliston Law Officeexclusive” and that ECIC generally had no duty to cover civil suits under its policy, but concluded that this “general rule must give way where its uncritical application would work a hardship.” ECIC appealed.
The Court of Appeal cited the well-established rule that equitable contribution only applies as between carriers that cover the same insured on the same level for the same loss, and one has paid more than its share. Because the two polices did not cover the same risk, and were mutually exclusive as acknowledged by the trial court, the Court of Appeal concluded contribution was not available to California Casualty.
California Casualty insisted that ECIC also had a duty to defend and so should pay contribution. The Court of Appeal reiterated that if the two insurers did not cover the same risk, there could be no contribution, and further explained why ECIC never had a duty to defend. When a workers’ compensation and employers’ liability policy applies, due to the exclusive remedy of workers’ compensation it is almost always Part One that applies.
The Court of Appeal explained that Part Two is a “gap filler” that might apply in those limited situations where the exclusive remedy does not apply and an injured employee can sue his employer in superior court, including willful physical assault by the employer (Lab. Code § 3602(b)(1)), employee injury aggravated by the employer’s fraudulent concealment of its existence (§ 3602(b)(2)), employee injury proximately caused by a defective product manufactured by the employer (§ 3602(b)(3)); or employee injury proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press (§ 4558(b)). The Court of Appeal explained that since none of these situations existed, the employee’s only remedy if he was acting in the course and scope of employment would have been to make a workers’ compensation claim, to which Part One would have applied but not Part Two.
Because the doctrine of contribution did not apply and ECIC never had a duty to defend, the Court of Appeal reversed the judgment against ECIC.
LaBarbera v. Security National Ins. Co. (2022) 86 Cal. App.5th 1329
Summary: An indemnified party has no direct rights against indemnitor’s insurer.
Discussion: Many liability insurance policies, and many JPA coverage documents, extend coverage for what is typically referred to as “contractual liability,” i.e., liability assumed by the insured (or covered party) by contract. Typically, such policies exclude coverage for contractually assumed liability and then include an exception for liability assumed in an “insured contract.” Current Commercial General Liability (CGL) policies provide that defense fees the insured must pay for the indemnitee will be regarded as damages payable within the limits of liability rather than supplemental amounts payable outside the limits. They also provide that if certain requirements are met, the insurer will conduct the defense of the indemnitee.
This case involved an insured general contractor who agreed to indemnify a homeowner (LaBarbera) for any claims arising out of remodeling work that was the subject of the contract. During the remodeling project, a subcontractor’s employee was injured and sued
LaBarbera and the general contractor. LaBarbera tendered its defense to the general contractor and its insurer, Security National, who ignored or rejected the tender.
After LaBarbera and his own insurer settled with the injured subcontractor employee, they sued the general contractor and Security National. Security National moved for summary judgment on the ground that all claims against it were barred because the undisputed facts established it did not have an obligation to defend or indemnify LaBarbera. The trial court concluded that LaBarbera was an intended third-party beneficiary of the policy, but that the stated requirements were not met. It therefore granted the motion and entered judgment in favor of Security National.
The Court of Appeal affirmed, but on the basis that the indemnitee defense clause in the general contractor’s general liability insurance policy was for the insured’s benefit and conveyed only incidental rights on the indemnitee, LaBarbera. Accordingly, LaBarbera was not an intended third-party beneficiary, and he had no right to bring a direct action against Security National.
Public agencies are often indemnitees of insureds with similar policies, and this clarifies that they should focus their enforcement efforts on the indemnitor and not the indemnitor’s insurer—unless they have additional insured status that would give them direct rights against the insurer.
Yahoo Inc. v. National Union Fire Ins. Co. of Pittsburgh (2022) 15 Cal.5th 48
Summary: A policy providing liability coverage for injuries “arising out of ... [o]ral or written publication, in any manner, of material that violates a person’s right of privacy” may be applicable to “intrusion into seclusion” claims.
Discussion: There are several torts referred to as “invasion of privacy,” including public disclosure of private facts, publicity portraying one in a false light, misappropriation of name or likeness, and intrusion into seclusion. The first three of these normally involve providing information to third parties, while the last does not require any such publication. Many general liability policies and many JPA coverage documents extend coverage for “personal injury,” which is typically defined to include injuries arising out of publication of material that invades or violates a person’s right to privacy. Insurers have argued that the reference to publication of “material that violates a person’s right to privacy” refers to the transmission of secret information so that the intrusion into seclusion tort is not covered “personal injury,” and this was the rationale relied on by the district court in this case.
In this case, Yahoo was sued under the Telephone Consumer Protection Act (TCPA) for sending unsolicited text messages, and tendered its defense and indemnification to National Union, which denied coverage. The policy in question included coverage for “personal and advertising injury” and a TCPA exclusion. The policy was amended by Endorsement No. 1, which removed the TCPA exclusion, provided coverage for “personal injury” and defined that term at stated above, and excluded “advertising injury,” defined to include “[o]ral or written publication, in any manner, of material in your ‘advertisement’ that violates a person’s right of privacy.” (Underlining added.)
As indicated above, National Union argued there was no coverage because this case involved intrusion into seclusion rather than invasion
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By: Douglas Alliston, Alliston Law Officeof the right to secrecy. The district court applied the rule of the last antecedent to read the clause “that violates a person’s right of privacy” as modifying only the word “material,” meaning that for the policy to provide liability coverage, the alleged privacy violation must relate to the content of the published material rather than to the method of transmission.
Yahoo appealed to the Ninth Circuit Court of Appeals, which certified the question of state law to the California Supreme Court. The Supreme Court concluded that the phrase “that violates a person’s right to privacy” might modify the entire phrase “publication, in any manner, of material” rather than just “material,” in which case the method of transmission, and not merely its content, could constitute a violation so that the intrusion into seclusion tort would be covered. As a result, it concluded the language was facially ambiguous. In that situation, the court stated that first step is to consider whether the standard rules of contract interpretation can resolve the facial ambiguity in the policy’s language. Then, if that does not resolve the ambiguity, the court looks to the insured’s reasonable expectations, and if that does not resolve the ambiguity the court applies the rule that ambiguities are to be resolved against the drafter—typically the insurer.
The Supreme Court acknowledged that two similar provisions in the policy suggested that the content of the “material” was what mattered, but other aspects of the policy, including the deletion of the TCPA exclusion, suggested that conduct as opposed to content was what was covered. Thus, the court found the language still ambiguous and said the next issue was the reasonable expectations of Yahoo. The Supreme Court believed further litigation would be required to answer that question, and continued to a discussion of the rule of resolution of ambiguities against the drafter. While acknowledging this rule does not apply when sophisticated parties negotiate uniquely drafted language (“manuscript endorsement” or “manuscript policy”), when the parties use industry-standard language as was the case here, the rule that policy language is construed in favor of the insured continues to apply.
Sutton v. Saputo Cheese USA (Cal. Ct. App. 2023) [unpublished]
Summary: A special employer can secure workers’ compensation coverage and obtain the benefits of the exclusive remedy by agreeing with the general employer that the latter will procure workers’ compensation insurance.
Discussion: Sutton was employed by Select Staffing (his direct or general employer) and assigned to temporarily work for Saputo Cheese (his special employer). Sutton was injured while working for Saputo, and filed a workers’ compensation claim against Select Staffing and a civil action against Saputo Cheese.
In the civil action, Saputo moved for summary judgment arguing that workers’ compensation was Sutton’s exclusive remedy and that it could have no liability in the civil action. Saputo contended it had complied with the requirement to secure workers’ compensation by entering into a written agreement with Select Staffing pursuant to Labor Code § 3602(d) that required Select Staffing obtain workers’ compensation benefits for employees it provided to Saputo, and because Select Staffing had done so, Saputo was in full compliance with the requirement to secure workers’ compensation coverage. Saputo also contended that if Select Staffing’s workers’ compensation was
inapplicable for any reason, Saputo’s own workers’ compensation policy would apply. Thus, either way, Saputo would qualify for the exclusive remedy.
Sutton argued that the written agreement between Saputo and Select Staffing did not expressly obligate or provide for Select Staffing to procure workers’ compensation coverage for employees it assigned to work for Saputo, which precluded Saputo from relying on the exclusive remedy provisions of the Labor Code and allowed Sutton to bring the instant personal injury action against Saputo. However, Saputo demonstrated that the agreement provided for adjustment of rates based on the cost of benefits, including workers’ compensation, and required Select Staffing to defend and indemnify Saputo from any workers’ compensation claims or lawsuits brought by Select Staffing workers employed at Saputo. Further, each year Select Staffing provided Saputo with a certificate of insurance, documenting the parties’ understanding of Select Staffing’s obligation to obtain workers’ compensation insurance. The Court of Appeal concluded tht these facts showed that the parties had in place an agreement as contemplated by § 3602(d), and distinguished cases cited by Sutton where there was no such agreement.
Sutton also argued that Saputo had failed to plead workers’ compensation exclusivity as an affirmative defense in its answer to Sutton’s complaint, waiving the defense. The Court of Appeal rejected this argument because Sutton’s own complaint alleged an employment relationship and that Sutton had sustained his injury in the course of his employment, putting workers’ compensation exclusivity at issue. Established case law holds that a complaint that discloses an employment relationship and a work-related injury is barred unless the plaintiff also alleges the employer has failed to secure workers’ compensation, because the employer’s compliance with the obligation to secure workers’ compensation is presumed. The defendant employer is only obligated to plead and prove facts establishing the exclusive remedy where the complaint does not allege employment and workrelated injury.
County of Sacramento v. Everest National Ins. Co. (9th Cir., Feb. 13, 2023, No. 22-15250)
Summary: In unpublished decision, the Ninth Circuit affirms a district court holding that the county’s liability for retaliation against an employee was excluded due to Insurance Code § 533, which prohibits the insuring of willful acts, and that the County cannot claim to be only vicariously liable.
Discussion: In 2022, the U.S. District Court for the Eastern District of California held that Insurance Code § 533 prohibited the insuring of the County’s liability for retaliation against employees in violation of the California Fair Employment and Housing Act (“FEHA”). The coverage dispute arose from an underlying action brought by employees of the Sacramento County Sheriff’s Department alleging retaliation under the FEHA. Specifically, they alleged they engaged in the protected activity of reporting what they reasonably believed was preferential treatment or complaining about alleged racial and gender discrimination in the Sheriff’s Department, and that such reporting was a substantial motivating reason for adverse employment actions against them.
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By: Douglas Alliston, Alliston Law OfficeThe County appealed, arguing that it was only vicariously or strictly liable for willful acts of employees in the Sheriff’s Department, so that its liability should be insurable despite Insurance Code § 533. The Ninth Circuit responded that vicarious or strict liability was not the actual basis of liability imposed on the County. Existing case law indicates that the FEHA imposes direct liability on an employer. Further, the verdict form did not indicate that the County was held strictly or vicariously liable, and the County’s trial counsel conceded the jury was not instructed on vicarious liability. Thus, the County was directly liable for retaliation under the FEHA, constituting willful misconduct for which insurance is prohibited by § 533.
Leet v. County of Santa Cruz (N.D. Cal., Mar. 7, 2023, 22-cv08957-RS)
Summary: A JPA member is not liable for the actions of the JPA.
Discussion: In this unpublished U.S. District Court decision, the plaintiff sued the County of Santa Cruz doing business as the Santa Cruz County Animal Shelter for destroying or rehoming his service dog. The County moved to dismiss on the basis that the animal shelter was operated by a JPA composed of the County of Santa Cruz, the City of Santa Cruz, the City of Scotts Valley, the City of Watsonville, and the City of Capitola, and that the joint powers agreement created a separate entity and provided, among other things: “The debts, liabilities, and obligations of the Authority shall not constitute debts, liabilities, and/or obligations of any of the Parties.”
The plaintiff argued the County was jointly and severally liable with the JPA, but the district court pointed to the provision quoted above to refute that argument. The plaintiff also raised a question about whether the County was a member of the JPA based on one sentence that mentioned only the member cities, but the court pointed to the preceding sentence, which identified the County as a member, and the County’s signature on the agreement. Consequently, the County was dismissed from plaintiff’s suit against the JPA.
Cam-Carson, LLC v. Carson Reclamation Auth. (2022) 82 Cal.App.5th 535
Summary: Alter ego principles can be applied to public agencies, so that a member of a JPA can be sued as an alter ego of the JPA in certain situations.
Discussion: Plaintiff CAM-Carson LLC was a real estate developer who contracted with the City of Carson and the Carson Reclamation Authority (CRA), a JPA of which the City was a member. Plaintiff alleged that the City, the successor agency of its former redevelopment agency, and CRA were alter egos of each other, so that the City could be liable for the JPA’s breach of its contract with plaintiff.
CRA was created to take ownership of a former landfill, the “157 Acre Site,” and complete remediation necessary to allow development on the site. The City and CRA negotiated with plaintiff for a series of related agreements (“project agreements”) for the development of 40 acres of the 157 Acre Site, referred to as the “Cell 2 Site.” A prerequisite for plaintiff’s development of the Cell 2 Site was for CRA and the City to remediate the Cell 2 Site, install infrastructure, construct roads, etc. CRA represented that it had sufficient funds to carry out its responsibilities under the project agreements.
The operative pleading alleged in detail gross mismanagement of the project by the City, CRA, and their primary contractor, resulting in the creation of a massive funding deficit and causing damages to plaintiff of over $80 million. Funds deposited with CRA by plaintiff were not held by CRA, but by the City. Within a year, CRA and its primary contractor announced they had insufficient funding to continue. Plaintiff alleged that it had learned that the City had failed to provide necessary funding, and the City and CRA had not employed a sufficient project management and financial control process, and in violation of the project agreements had used plaintiff’s deposits for remediation work. Plaintiff alleged the City, CRA, and the primary contractor concealed the shortfall for months, and invoiced plaintiff and received advances from plaintiff even though they knew they could not complete their remediation and infrastructure obligations.
Plaintiff alleged the City, CRA and the successor agency were operated as one entity as follows: “These entities failed to: (a) observe appropriate formalities; (b) maintain separate records; (c) properly demarcate between when individuals were acting for the City and when those same individuals were acting for the CRA or the Successor Agency; (d) properly memorialize meetings between the CRA, the Successor Agency, City Council, and Project contractors and subcontractors; or (e) properly capitalize the CRA. Moreover, in light of the City’s extensive managerial and administrative control over the CRA and the Successor Agency, their commingling of resources and operations, and the fact that both the CRA and Successor Agency operate exclusively for the benefit of the City, the three entities constitute a single enterprise. The CRA and the Successor Agency exist largely to complete the remediation work such that the Project can move forward and the City can reap massive financial and societal gains.”
The City demurred on the basis that it could not be held liable as the alter ego of the CRA JPA and the trial court dismissed the City from the action. Plaintiff appealed.
The Court of Appeal pointed out that in California, the alter ego doctrine can be invoked if there is such a unity of interest and ownership between the corporate entity and its equitable owner that the separate existence of the two do not really exist, and treating the two as separate will create an inequitable result. Factors tending to show such unity include commingling of funds, identical ownership, the same individuals in control of both, disregard of formalities between the two, and use of one as the conduit for the affairs of the other. The Court of Appeal concluded that no case had held as a matter of law that the equitable alter ego doctrine could not apply as to public agencies, that the equivalent of a “unity of interest and ownership” could exist between public agencies, and the allegations of the complaint appeared sufficient to invoke the doctrine. Accordingly, the Court of Appeal reversed the judgment dismissing the City from the action.
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By: Douglas Alliston, Alliston Law OfficeCentral Union High Sch. v. United States (S.D. Cal., Dec. 22, 2022, 21cv194 JM(KSC))
Summary: School district’s release given to U.S. in the context of a claim for property damage barred district’s workers’ compensation JPA from seeking subrogation.
Discussion: In March 2018, there was a traffic accident involving a school bus and an on-duty agent of the U. S. Customs and Border Protection (CBP) agency. The bus driver was injured and the bus was damaged. The school reported the bus driver’s injury to its workers compensation claims administrator, Self-Insured Schools of California (SISC), a JPA, and in April 2018, SISC notified the CBP driver of its intent to seek reimbursement of the bus driver’s medical expenses. Also in April 2018, the school submitted an administrative claim to CBP for property damage to the school bus. In October 2018, CBP settled with the school in exchange for $972.64 signed a release on behalf of itself, its administrators, and assigns as to any and all claims for bodily injury, personal injury, and property damage arising from the accident.
In February 2020, SISC submitted an administrative claim for $1 million to CBP for reimbursement of workers’ compensation benefits paid to the bus driver. CBP denied the claim in February 2021. SISC sued CBP in federal court to recover the workers’ compensation payments. CBP moved for summary judgment based on the release signed by the school, and alternatively argued that SISC was not an employer entitled to bring such an action under Labor Code § 3852. SISC argued that the school could not waive SISC’s rights and suggested it needed additional time to present further evidence of its separate existence, but the district court stated that it assumed that the two entities were separate but that there was an agency relationship between the school and SISC, so that the release by the school barred SISC’s claim. Accordingly, the court dismissed SISC’s subrogation action.
WORKERS’ COMPENSATION CASES
By: Anne Hernandez, Mullen & Filippi, LLPCarter v. State of California, Dept. of Corections (2022) 2022
WL 16844766
Summary: The Workers’ Compensation Appeals Board Panel affirmed the trial judge’s decision to add impairments resulting from an applicant’s two heart conditions pursuant to Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.), as substantial medical evidence supported the physician’s opinion that adding them would result in a more accurate rating of the applicant’s level of disability than the rating resulting from the use of the CVC.
Discussion: Applicant, while employed as a correctional counselor, claimed cumulative trauma injuries from February 19, 1990 to July 22, 2014. The matter proceeded to trial and the Workers’ Compensation Judge (“WCJ”) issued a decision on February 21, 2020 finding applicant was 100% disabled based on the addition of applicant’s cardiac arrhythmia and hypertensive disease. Defendant filed a petition for reconsideration arguing in part that the WCJ erred in his finding of permanent and total disability (PTD) by relying upon Internal medicine QME Dr. Tirmizi’s medical opinion to add rather than combine the disabilities resulting from applicant’s hypertensive heart disease and cardiac arrhythmia. The Board panel granted reconsideration and affirmed the WCJ’s Findings and Award of February 21, 2020, incorporating key portions of the WCJ’s report and recommendations. The panel reviewed case law relevant to the concept of adding versus combining permanent impairments beginning with Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.) in which the basis for adding rather than combining disabilities was “the synergistic effect of one hip injury upon another opposite hip injury.” The panel also discussed Taina v. County of Santa Clara/Valley Medical Center (2018) 2018 Cal. Wrk. Comp. P.D. LEXIS 344, in which the Appeals Board explained, “disability values of multiple impairments may be added instead of combined using the CVC if that provides an accurate rating, particularly when there is no overlap, and when the synergistic effect of the multiple disabilities supports that method of combination.” (emphasis added). The panel then cited De La Cerda v. Martin Selko & Co. (2017) 83 Cal.Comp.Cases 567 (writ den.), in which the Appeals Board panel stated that the fact that an AME “does not use the term ‘synergistic’ to advocate for use of the additive rating method is not determinative of the validity of using that method. The impairments may be added if substantial medical evidence supports the physician’s opinion that adding them will result in a more accurate rating of the applicant’s level of disability than the rating resulting from the use of the CVC.” (emphasis added). Here, the panel found that the opinion expressed by Dr. Tirmizi in his deposition met the substantial evidence test noted above. Dr. Tirmizi opined that in the applicant's situation, the effects of the two diseases on the heart were "synergistic," not compressive. Thus, adding the effects of both was the most accurate assessment. He based this not on scientific studies but on his own medical expertise, noting that it was a reasonable medical probability.
The panel agreed with Dr. Tirmizi, asserting that "reasonable medical probability" is a sufficient evidentiary threshold. As a result, the WCJ's findings and award were upheld.
Sykes v. Los Angeles County Metro. Transit Authority 2022 WL 2252171 (Cal.W.C.A.B.)
Summary: An AME’s apportionment to a nonindustrial motor vehicle accident without the relevant treatment records was not substantial evidence in a new and further claim.
Discussion: Applicant, a bus operator, sustained a July 2012 injury to the cervical spine, lumbar spine, right wrist, right ankle, left thigh and right shoulder. Orthopedic AME, Dr. Angerman, noted a prior stipulated award from 2007 for 16% PD to the neck, back and bilateral shoulders. In 2015, the parties entered into joint Stipulations with Request for Award at 30% PD for the July 2012 injury (lumbar rating at 26% and cervical rating at 6%).
In March 2017, applicant filed a timely petition to reopen both claims. Dr. Angerman’s reevaluation noted, as part of applicant’s interim history, that she was involved in a non-industrial automobile accident in February 2016 with complaints of increased, neck, low back, and lower extremity problems. The AME noted he did not have treatment reports from the nonindustrial accident and that medical evidence reflected that, prior to the nonindustrial motor vehicle accident, applicant was seen by Dr. Perelan for significant neck and back pain for which PT was recommended. Thus, there was medical evidence to support new and further. Despite the lack of medical records related to the February 2016 automobile accident, Dr. Angerman concluded her impairment had increased, particularly with respect to the lumbar spine, and he provided two scenarios for apportioning liability between her workrelated injury and the non-industrial car accident.
Following trial on PD and apportionment, the WCJ ruled that applicant sustained 59% PD for the July 2012 injury and that she was entitled to an un-apportioned award. Defendant sought reconsideration.
The Board panel affirmed the WCJ’s Award, rejecting defendant’s argument that the WCJ erred in failing to apportion disability for applicant’s lumbar spine to the 2016 nonindustrial motor vehicle accident per LC section 4663 and the findings of AME Dr. Angerman. Specifically, the panel observed that pursuant to Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93], a medical opinion based on an inadequate history is not substantial evidence. Here, Dr. Angerman admitted he was lacking essential treatment records related to the orthopedic treatment for the nonindustrial accident. Thus, the panel found his reporting was not substantial evidence. Furthermore, the panel noted, as required pursuant to Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc), Dr. Angerman did not explain how and why the nonindustrial accident contributed to applicant’s current level of disability for her lumbar spine.
The panel also refuted the defendant’s request for remand for further development of the medical evidence and further found defendant had not shown substantial evidence of overlap between the applicant's disability from her 2007 award and her present disability resulting from the 2012 injury per Kopping v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115. The panel also dismissed defendant’s argument for apportionment per section 4664 based on the 26% PD for the lumbar spine due to the July 2012 injury already stipulated to in the 2015 award, noting that the 2015 award was for the same injury for which applicant has shown new and further disability. This was therefore not a “subsequent industrial injury” under section 4664(b), allowing applicant to seek a new disability award for the full impact of the 2012 injury.
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By: Anne Hernandez, Mullen & Filippi, LLPEspino v. Fullerton Foods/ACE American Insurance 2022 WL 2254920 (Cal.W.C.A.B.)
Summary: An applicant’s daughter was entitled to payment for home health care services rendered as numerous medical reports prescribed home health care, activating defendant’s duty to conduct reasonable and good faith investigation into applicant’s need for medical treatment consistent with § 4600 and Administrative Director (AD) Rule § 10109.
Discussion: The Board Panel reviewed medical and Med-legal reports describing the need for home health care. The WCAB affirmed the WCJ’s decision granting home health care payments for services provided by applicant’s daughter.
The WCAB found that the reporting/prescriptions placed defendant on notice, activating a duty to conduct reasonable and good faith investigation into applicant’s need for medical treatment consistent with § 4600 and Administrative Director (AD) Rule § 10109. The panel found no evidence that defendant investigated applicant’s need for home health care after receipt of the medical reports.
The panel agreed with the WCJ that paying Ms. Espino as a certified nurse assistant (CNA) would be speculative since she never worked as a CNA. The WCJ instead ordered the parties to adjust the rate with jurisdiction reserved in the event of a dispute.
This case underscores a defendant’s duty to investigate applicant’s need for medical treatment which is triggered by the reporting that prescribes it. Even if an applicant doesn’t request such medical treatment, defendants must investigate how an applicant is receiving this prescribed care. Also note that the court adjusted Ms. Espino’s rate because she was not a CNA, so you do not necessarily have to pay a family member like a CNA. Finally, keep in mind that here, there is no indication the applicant no longer needed home healthcare, so under the Patterson case, defendant would still have to pay for home health care until there is change of circumstance.
Flores v. County of Los Angeles 2022 WL 2047586 (Cal.W.C.A.B.)
Summary: A Sergeant’s direction to a deputy sheriff to operate an ATV without providing training and protective equipment warranted a Serious and Willful Misconduct award, particularly in light of the fact the deputy sheriff expressed his inexperience with ATVs and requested a helmet.
Discussion: Applicant, a deputy sheriff, employed by the County of Los Angeles filed an Application for Adjudication of Claim in 2014 and filed a Petition for Serious and Willful Misconduct in 2015. The matter proceeded to trial on whether defendant was liable for serious and willful misconduct.
At trial, applicant testified that on the day of the incident, he was on special assignment at Bonelli Park to assist with the visit of former President Obama. Applicant was assigned to operate an ATV without receiving prior training or protective gear. Despite expressing his discomfort and inexperience with the vehicle to his supervisor, Sergeant Hines, and asking for personal protective equipment (PPE), he was not provided any assistance. While on the ATV, the deputy had an accident, resulting in a severe injury which necessitated an airlift to the hospital.
In the WCJ’s March 8, 2022 Findings of Fact, Award and Order,
she found that applicant sustained injury as a result of the serious and willful misconduct of his employer. Defendant filed a Petition for Reconsideration. The Board panel affirmed the WCJ’s finding and award, adopting and incorporating all but one paragraph of her report recommending denial of the Petition for Reconsideration.
The county contested, among other points, that Sergeant Hines wasn't a "managing representative," implying that defendant should not be held accountable for his actions or decisions under Labor Code section 4553. This section dictates that only the actions of managing representatives can lead to added compensation for employees due to willful misconduct.
However, the WCJ highlighted that the county didn't counter the deputy's claim that Hines was his supervising sergeant on the incident day. The county's belated attempt to dispute this in a post-trial brief, showing Hines was only a deputy, was rejected. The WCJ reasoned that post-trial briefs should not introduce new evidence. Besides, the WCJ emphasized that a title isn't the only criterion determining a "managing representative." Since Hines was overseeing the work and making critical decisions, he could be considered a managing representative, regardless of his official title.
The WCJ also found that the evidence supported the conclusion that the employer’s actions rose to more than mere “gross negligence.” This was because the deputy explicitly expressed his concerns, which were ignored, elevating the county's negligence to a “quasi-criminal” level of culpability required under Labor Code section 4553.
Furthermore, referencing Labor Code section 4553.1, the WCJ pointed out that applicant had established the employer had violated a Cal/ OSHA safety regulation which requires employer implementation of a safety training program, including training for a new job assignment. Had the applicant been provided with training for this new assignment, the accident could have been prevented. Thus, the WCJ found defendant’s failure to train and provide PPE was sufficient to establish proximate causation of applicant’s injuries and constituted a violation of Labor Code section 4553.1.
Iosif vs. County of Sacramento ADJ13410725 Sep. 7, 2022, Decision After Reconsideration
Summary: A Panel affirmed the WCJ’s finding of a compensable psyche injury based on QME reporting and a determination that applicant’s testimony was credible and more persuasive than employer witnesses, distinguishing Verga v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 174 [73 Cal.Comp.Cases 63].
Discussion: Applicant was employed by defendant, County of Sacramento, as a deputy sheriff. She claimed a psychiatric cumulative trauma (CT) injury through July 10, 2020 resulting from mistreatment by her coworkers and, in particular, an episode where applicant alleged a coworker, Deputy Brooks, deliberately delayed allowing her to exit a locked courtroom holding cell where she was alone with an agitated inmate.
The QME in psychology, Dr. Belfor, determined applicant’s psychiatric injury met the 51% predominant cause threshold and attributed 60% of the psychiatric injury to the incident involving the holding cell/tank.
At trial, there were conflicting accounts of the events. The applicant testified that Deputy Brooks not only mocked her accent multiple times
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By: Anne Hernandez, Mullen & Filippi, LLPbut also intentionally delayed opening the cell door. Deputy Brooks refuted these claims, asserting that he had jokingly commented on her accent without malicious intent and had not intentionally delayed opening the cell door. However, the WCJ noted inconsistencies in Deputy Brooks' testimony, particularly about the door-opening incident and recognizing the applicant's voice, which was familiar to him.
The WCJ found that the QME Report of Dr. Belfor and the testimony of applicant, Deputy Brooks, and Lieutenant Petrovich supported a finding that applicant sustained injury to her psyche arising out of and in the course of her employment. The trial judge’s decision was based in part upon a determination that applicant’s testimony was credible and more persuasive than that of the employer’s witnesses and a determination that the holding tank incident was an actual event of employment, which was the predominant cause of applicant’s psychiatric injury.
Defendant filed a Petition for Reconsideration arguing that the trial judge relied solely on her applicant’s subjective perceptions, in contradiction of Verga v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 174 [73 Cal.Comp.Cases 63], which held that rulings based on an applicant’s subjective perceptions are prohibited.
The appeals board affirmed the WCJ’s decision, distinguishing Verga on the basis that in Verga, the alleged abuse was disputed by the QME, and the applicant's testimony was not found credible. However, in this case, the WCJ found the applicant's testimony credible and her testimony was supported by the QME, Dr. Belfor.
Accordingly, the Appeals Board agreed with the WCJ that applicant established that actual events of employment were the predominant cause of the claimed psychiatric injury and that applicant carried her burden of proof pursuant to LC section 3208.3(b).
Larson v. County of Los Angeles Dept. of Regional Planning
2022 WL 2251741 (Cal.W.C.A.B.)
Summary: A psychiatric injury award was upheld where defendant failed to rebut applicant’s credible testimony with evidence to support good faith personnel action defense and raised untimely defenses for the first time on reconsideration.
Discussion: The applicant, employed by the Los Angeles County Regional Planning Department, alleged a psychiatric injury resulting from several work-related events. Key events included a denied promotion in 2016 and issues arising after he penned a "whistleblowing letter" regarding unfair hiring practices. Post-letter events involved being labeled as racist, receiving a negative job evaluation, and being overlooked for an Assistant Administrator position. The applicant believed this series of events was retribution for his whistleblowing action. At trial, the applicant detailed his grievances, emphasizing that he was denied a promotion despite outperforming another colleague in a relevant exam. The defense’s only rebuttal focused on budgetary reasons for the Assistant Administrator position and dismissed the criticized hiring practices as being beyond their control.
Two contrasting medical evaluations were presented. Dr. Lou Ellen Sherrill claimed that applicant's perceived hostile work environment was a result of a long-standing personality disorder, and she did not find evidence supporting the applicant's claims. Dr. Marc Nehorayan, however, associated applicant’s psychiatric injury with the work-related events mentioned. The WCJ ruled in favor of the applicant, asserting
that his psychiatric injury was indeed related to his employment. The WCJ discounted Dr. Sherrill's opinion, feeling it didn't accurately represent the events at work.
Defendant sought reconsideration, questioning the validity of the applicant’s claims and suggesting that one event (the 2016 promotion denial) was outside the statute of limitations. They also posited that the complaints arose from lawful personnel actions. The Board panel denied defendant’s petition, adopting and incorporating the WCJ’s report and recommendation.
The WCJ highlighted that the applicant presented objective, verifiable evidence, including his credible testimony and certain medical reports. They noted the defendant failed to contest this adequately. The WCJ also dismissed the defendant's claim about the statute of limitations and the admissibility of Dr. Nehorayan’s report because these issues were raised too late in the proceedings.
Roundtree v. Cherne Contracting Corp. (2022) 2022 WL 6885272
Summary: Defendant was not entitled to a credit for TD overpayment when said overpayment was partly due to defendant’s failure to timely submit medical records to the QME.
Discussion: The applicant, an employee of Cherne Contracting Corp., was injured at work when a car hit him during his duty at the Chevron Refinery. The primary issue under review was the defendant's claim for a credit against permanent disability (PD) because of an alleged overpayment for temporary total disability (TTD) totaling $22,569.30, spanning from August 10 to December 17, 2019.
The contention arose due to the QME reports by Dr. Jared Myers. His first report on August 9, 2019, lacked conclusions on major medicallegal issues because the defendant did not supply any medical records or a cover letter. In a later report on December 1, 2019, Dr. Myers determined that the applicant had reached a stage of permanent and stationary (P&S) status from the date of the first exam.
Although the defendant petitioned for credit, the WCJ declined this request on February 11, 2021. The WCJ found that credits against PD due to alleged overpayments were not an entitlement but a decision at the discretion of the WCJ. The decision's equity relies heavily on specific facts and the reasons for the claimed overpayment.
In this case, the WCJ highlighted that if the defendant or its legal representative had efficiently provided the necessary medical documents to Dr. Myers before the August 9 exam as per WCAB Rule 35(a) (Cal. Code. Regs. tit. 8, § 35(a)), then the substantial TTD overpayment would likely have been avoided. The blame for the delay and retroactive P&S designation by the QME lay primarily on the defendant's oversight to provide crucial records timely.
The WCJ also empathized with the applicant's standpoint, noting that if the requested credit was approved, it would heavily penalize the applicant, cutting down more than a third of the PD, especially when the situation arose from the defendant's negligence.
While the defendant cited Huston v. Workers’ Comp. Appeals Bd., (1979) 95 Cal.App.3d 856, 866. to argue that judges have the discretion to award credits even in cases of negligent overpayments. Defendant further argued its actions were not egregious. The WCJ was not't convinced, finding defendant's delay in supplying the records to
WORKERS’ COMPENSATION CASES - CONTINUED
By: Anne Hernandez, Mullen & Filippi, LLPDr. Myers "inexcusable" and appreciating the applicant's proactive approach in providing the missing medical records shortly after learning of their absence. Emphasizing that the defendant had plenty of time to provide the necessary documents, the WCJ concluded that it was inappropriate to grant the defendant a credit against applicant’s permanent disability.
The defendant sought reconsideration, but the Board panel upheld the WCJ's decision.
In summary, because the conclusions reached by applicant’s VE rested on nonindustrial body parts and work restrictions not identified in the medical record, citing Acme Steel v. Workers' Comp. Appeals Bd. (Borman) (2013) 218 Cal. App. 4th 1137 [78 Cal.Comp.Cases 751]; Lentz v. Workers' Comp. Appeals Bd. (2013) 78 Cal.Comp.Cases 1003 [writ den.], the panel concluded the resulting reporting was not substantial evidence.
Sefick
v. Valley Pacific Petroleum Services, Inc. ADJ9519787, ADJ10089970 Sep. 7, 2022, Decision After Reconsideration
Summary: Where applicant’s vocational expert’s (VE’s) opinion rested on impermissible factors like age, non-industrial body parts, and work restrictions not identified in the medical record, the VE’s opinion was not substantial evidence.
Discussion: Applicant claimed he sustained an injury to his neck and left shoulder on August 9, 2012, while working as an Inventory Control Specialist and driving a fuel truck. He felt a sudden pop and pain while lifting the truck's fuel hose. Additionally, he filed a separate claim asserting cumulative trauma (CT) injuries to various body parts from August 11, 2011, through August 9, 2012. The defendant challenged the validity of this injury claim.
The case revolved around the testimony of the two VEs. Applicant's VE, Frank Diaz, believed that applicant had lost complete access to the labor market due to the cumulative trauma injury. Diaz stressed that age was not a significant factor in his analysis, arguing that applicant would not benefit from vocational rehabilitation. In contrast, defense VE, Everett O’Keefe, criticized Diaz's methodology and conclusions, deeming the findings unreliable.
After a trial on January 21, 2020, the WCJ concluded that the injury resulted in a permanent partial disability of 50% and dismissed Diaz's reports as insubstantial evidence. Both parties requested reconsideration of the decision. The applicant believed Diaz's reports indicated a complete disability, whereas the defendant took issue with the permanent disability rates specified in the judgment.
The Board panel, during reconsideration, sided with the WCJ. They noted that Diaz's reports had impermissible factors like age and work restrictions not backed by medical records. The WCJ also highlighted that the reimbursement for vocational reporting was not decided, hinting at the need for further exploration of this issue.
The panel agreed with the WCJ that Diaz's analysis was flawed. He had limited his evaluation to the applicant's previous job roles without considering potential transferrable skills. Moreover, Diaz's conclusion that the specific injury might not have happened without the applicant's strenuous career was considered speculative.
Furthermore, applicant’s VE specifically premised his initial opinions of non-feasibility for vocational retraining on applicant’s age, pain and back spasms. However, as is noted by the WCJ, the body part of low back had not been identified as industrially related in the medical-legal reporting, and could not in turn form the basis of a determination of work-related vocational disability. Additionally, the work restrictions utilized by Mr. Diaz in determining applicant’s transferable job skills included restrictions not identified in the relevant medical-legal reporting.
Servin v. Cerritos Lexus ADJ11423609, September 12, 2022 Order Denying Reconsideration
Summary: Once a treatment has been approved by UR, even if there was a prior conflicting decision, the treatment must be authorized.
Discussion: Applicant claimed injury to the left shoulder, right shoulder, back, neck, wrist and elbows on February 1, 2018, while employed as an auto body technician by Cerritos Lexus. Defendant accepted the left shoulder as compensable.
On January 11, 2022, Dr. Omin, the applicant's physician, requested a left-side reverse total shoulder arthroplasty. The request was initially denied due to missing imaging studies. However, when Dr. Omin resubmitted the request with the required radiographic imaging studies on January 27, 2022, the Utilization Review (UR) approved it on February 2, 2022. This approval was retracted on February 7, 2022.
A trial was held on May 4, 2022, focusing on the medical necessity of the left shoulder surgery. On June 20, the WCJ ordered the defendant to authorize the left shoulder surgery based on the UR's February 2, 2022 approval.
Defendant challenged the WCJ's decision. Their main argument was based on Labor Code § 4610(k) which states that UR decisions are generally valid for a year, implying that the initial denial should prevent further requests for the same treatment for a year. They also argued that the applicant's only remedy for a negative UR decision was the Independent Medical Review (IMR).
The Board panel upheld the WCJ's decision. They clarified that they possess the authority to address non-medical disputes arising out of the UR process, referring to LC section 4604. They also pointed out that while a timely UR determination is generally valid for one year, a physician treatment request indicating documented change in facts material to the basis of the review may require further action by the claims administrator. Cal. Code Regs., tit. 8, § 9792.9.1.(h).
In this case, the initial denial was based on missing imaging studies. When these were provided in the resubmitted request, it was valid for defendant to ask for a new UR decision. The Board panel further rejected defendant’s argument that the January 11, 2022 adverse utilization review determination served to obviate its voluntary submission of the medical dispute for additional review. Specifically, the panel found that defendant failed to invoke LC section 4610(k) and decline to submit the matter for UR based on its January 11, 2022 determination. Further, defendant failed to declare a dispute regarding a non-medical issue pursuant to LC section 4604. Instead, defendant voluntarily submitted the matter as a medical dispute under section 4610 for further utilization review.
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By: Anne Hernandez, Mullen & Filippi, LLPCiting Ramirez v. WCAB (2017) 10 CA5th 205, 82 CCC 327, the panel observed that once UR approves a requested treatment, “the determination is final and the employer may not challenge it” through the IMR process, as IMR is only available to the injured worker when UR modifies, delays or denies the requested treatment. LC § 4610.5(d). The panel concluded that the UR doctor’s subsequent review “disclaiming” its prior authorization was statutorily impermissible because once the decision approving medical treatment was communicated, the UR process was complete and the medical dispute resolved. LC § 4610.5(i)(4)(A).
CIVIL RIGHTS CASES
By Attorneys Noah G. Blechman, John J. Swafford and Briana J. Waite - McNamara Law Firm, Pleasant Hill, CAGabbi Lemos v. County of Sonoma, 40 F.4th 1002 (9th Cir. 2022)
Summary: The Ninth Circuit held that the district court erred in granting Defendants’ summary judgment because the action was not barred based on Plaintiff’s conviction under Cal. Penal Code § 148(a)(1) for willfully resisting arrest. The state court record did not demonstrate which of the four actions committed by Plaintiff constituted the basis for her conviction. Thus, the matter was reversed and remanded to the district court because the Ninth Circuit held that Lemos’ action was not barred by Heck. The U.S. Supreme Court denied certiorari of the matter.
Discussion: On June 13, 2015, a deputy arrived about a disturbance coming from the occupants of a parked truck with a large trailer attached in front of a residence. Lemos, during her detention, ignored the deputy’s commands to stop as she retreated to her residence. The deputy was forced to physically tackle her and place Lemos under arrest. Lemos was ultimately charged with resisting arrest, a violation of Cal. Penal Code § 148(a)(1). The jury was instructed that they could find Lemos guilty based on any one of four acts: 1) she made physical contact with the deputy as he was trying to open the truck door; 2) she placed herself between two other subjects during the detention; 3) she blocked the deputy from opening the truck door and speaking with another involved subject; or 4) she pulled away when the deputy attempted to grab her. On review, the Court must determine which act(s) formed the basis for Lemos conviction because the jury rendered a general verdict and it was not known which of Lemos’ acts constituted the charge. Lemos’ § 1983 excessive force claim was based on the Deputy’s use of force when he tackled Lemos. As such, not knowing which act constituted the charge, the Ninth Circuit concluded that should Lemos prevail in her civil action, this would not necessarily invalidate her resisting arrest criminal charge. Lemos’ civil action was not barred by Heck, because the Ninth Circuit could not identify which of her four actions supported the factual basis of the crime.
J.K.J. v. City of San Diego, 42 F.4th 990 (9th Cir. 2022)
Summary: The Ninth Circuit upheld the district court’s dismissal of the case per a Rule 12 motion with regard to the amended complaint. The Ninth Circuit found that the alleged nature of the officers’ conduct, in failing to recognize and respond to the decedent’s serious medical need, was not clearly established in the specific context of this case.
Discussion: Aleah Jenkins was arrested at a traffic stop once Officer Taub discovered she had an arrest warrant. After vomiting in the patrol vehicle, Jenkins stated she was suffering from normal pregnancy-related sickness so Officer Taub canceled the medical call he had placed. However, on the way to the police station, while being transported by Officer Durbin, Jenkins began calling for help. At the station, after being left in the police cruiser for eleven and a half minutes, Jenkins was found unconscious. Paramedics were called and CPR started immediately; however, she slipped into a coma and died nine days later. The Ninth Circuit held that Officers Durbin and Taub were entitled to qualified immunity as the unlawfulness of the officers’ conduct was not clearly established.
Susan Peck, et al. v. Anthony Montoya, et al., 51 F.4th 877 (9th Cir. 2022)
Summary: The Ninth Circuit affirmed the district court’s denial of qualified immunity concluding that there are genuine disputes of fact that could cause a reasonable jury to find that the Decedent did not pick up the gun nor was he moving towards the gun at the time he was shot by deputies. The panel found that the district court erred in denying the non-shooting deputies summary judgment on the excessive force claim.
Discussion: The Ninth Circuit has repeatedly distinguished between a suspect actively reaching for a weapon and an armed suspect who is not reaching for the weapon. Here, the Decedent was unarmed and not appearing to arm himself upon viewing the facts in the light most favorable to the Plaintiff. As such, a jury could find that no furtive movements towards the weapon occurred and the Ninth Circuit has clearly established that the use of deadly force would then be impermissible in that scenario. Further, the panel concluded that the non-shooting deputies were not integral participants because the shooting was completely unplanned and there is no indication that the non-shooting deputies formed a plan that the shooting deputies would deploy excessive force. There is also no reason to believe that by simply providing armed backup would lead later to a use of excessive force. Importantly, officers may not use deadly force towards a suspect absent some belief that the suspect will access or use a weapon.
Paulette Smith v. Edward Agdeppa, et
al., 56 F.4th 1199 (9th Cir. 2022)
Summary: Qualified Immunity is not available when there are discrepancies in the evidence which are ultimately better resolved by a jury in deadly force cases. Officers have a duty to warn a suspect, when feasible, of the officer’s intentions to use deadly force. The district court denied the officer’s motion for summary judgment under qualified immunity noting there were genuine issues of fact in dispute and taking this matter out of the jury’s hands was inappropriate. Note, on May 4, 2023, this opinion was withdrawn and a rehearing granted upon resignation of one of the affirming justices and his replacement. On August 30, 2023, a new decision was published in which the court granted qualified immunity to the officers
Discussion: On October 29, 2018, Officers Agdeppa and Rodriquez responded to a disturbance and trespassing call at a 24-Hour Fitness gym. The suspect, Dorsey, began to physically resist and overpower the two officers preventing them from placing him in handcuffs. Ofc. Agdeppa observed Dorsey straddle Ofc. Rodriguez while he began to punch her numerous times and Ofc. Rodriquez remained in the fetal position to block the onslaught. Ofc. Agdeppa believed that Ofc. Rodriquez’ life was in peril should he let Dorsey continue to beat her. After several Taser uses failed, Ofc. Agdeppa fired five shots without warning of any deadly force. The Los Angeles Board of Police Commissioner conducted an internal investigation finding that there were discrepancies between the officers’ statements and the witnesses statements to include the physical evidence identified. The Ninth Circuit agreed with the district court that Ofc. Agdeppa was not entitled to qualified immunity based on the discrepancies between the versions of events and other evidence. The Court also affirmed the longstanding rule that requires office to warn a suspect prior to their use of deadly
CIVIL RIGHTS CASES - CONTINUED
By Attorneys Noah G. Blechman, John J. Swafford and Briana J. Waite - McNamara Law Firm, Pleasant Hill, CAforce when feasible under the circumstances. Further, Ofc. Agdeppa’s command to “stop” was insufficient to constitute a sufficient warning. The Court reasoned that a reasonable jury could decide that it was practicable for Adgeppa to give Dorsey a deadly force warning. The dissenting opinion makes the argument that under these circumstances, Ofc Agdeppa wa presented with his partner being beaten by a 280 lb. man putting her life on the line and there is no legal duty to delay even the few seconds to issue a “stop or I will shoot” warning.
Francisco Duarte, et al v. City of Stockton, et al., 60 F.4th 566 (9th Cir. 2023)
Summary: The panel reversed and remanded the district court’s dismissal of Plaintiff’s false arrest and municipal liability claims to include summary judgment on the excessive force claim. The panel held that Plaintiff’s pleading of no contest, holding the criminal charges of resisting arrest in abeyance providing the completion of specific conditions set forth in the agreement with the prosecution, failed to amount to the functional equivalent of a conviction. For Heck to apply, there must be an actual judgment of conviction.
Discussion: On July 12, 2018, Plaintiff pled no contest to resisting arrest in violation of California Penal Code § 148(a)(1). Plaintiff acknowledged that a no contest plea has the same effect as a guilty plea. However, the plea form also provided for an exception noting that Plaintiff’s plea will be in abeyance pending completion of 10 hours of community service at a non-profit and in 6 months will vacate the plea and then seek a dismissal on Jan 12, 2019. After Plaintiff completed his community service hours, 6 months later the state court dismissed the case upon motion by the District Attorney in the interests of justice. The court found that a plea in of itself is not a conviction. Although a plea may be entered, there is no conviction without a subsequent order from the court. Here, the state court never entered an order finding the Plaintiff guilty of resisting arrest. Further, the court held the Plaintiff’s plea in abeyance, meaning that it was held in suspension, is not a finding of guilt or a conviction. Ultimately, six months later the case was dismissed and there was no order or judgment of criminal liability imposed. The Heck bar does not apply when the criminal charge of resisting arrest is held in abeyance pending compliance with specific conditions where upon compliance the charges are later dismissed. Thus, since Plaintiff’s charges were dismissed, he was never convicted and with no conviction, Plaintiff’s § 1983 claims are not subject to Heck.
Jose Murguia v. Heather Langdon, et al., 61 F.4th 1096 (9th Cir. 2023)
Summary: The Ninth Circuit held that district court erred in dismissing Plaintiff’s Section 1983 action against a county deputy and sergeant because it used the wrong standard in applying the state-created danger exception in the context of a welfare check. There are only two exceptions to the general rule against failure-to-act liability presently recognized by the Court, 1) the special-relationship exception and 2) the state-created danger exception.
Discussion: On December 4, 2018, Plaintiff called 911, describing his wife Langdon’s erratic behavior and requested mental health assistance. The deputies refused to assist in obtaining mental health assistance and advised Plaintiff to call if his wife threatened to harm herself or anyone
else. Langdon was ultimately provided free lodging at a motel with their twins. The following morning the twins were found deceased. The district court correctly held that the special-relationship exception did not apply because Defendants did not take the twins into custody. The state-created exception has two requirements 1) there is affirmative conduct by the state which places a plaintiff in danger, and 2) the state acted with deliberate indifference to a known or obvious danger. The district court limited their analysis as to whether Langdon had custody of the twins, and ignored other factors that affected the risk of physical harm that Langdon posed to the twins. The district court should have more broadly asked whether the officers left the twins in a situation that was more dangerous than the one they were found in.
The panel held that Plaintiffs’ state-created danger claim against the deputies failed because Plaintiffs failed to allege facts that Defendants created any danger to the twins. Further, the panel held that Plaintiffs adequately stated their claim against the sergeant under the statecreated danger exception. The sergeant increased the risk of physical harm by arranging lodging for Langdon and the twins amounting to deliberate indifference. Notably, despite the fact that the social worker, who was aware of Langdon’s abusive history, provided the sergeant with false information, the sergeant was still deemed to arguably have acted with deliberate indifference. Similarly, the social worker was also found to arguably be deliberate indifferent because of her false information to the sergeant and for not returning the twins to Plaintiff which rendered the twins more vulnerable to harm. The panel vacated the district court’s dismissal and remanded the matter to the district court for the opportunity to apply the correct standards and evaluate the issues.
Estate of Strickland, et al. v. Nevada County, et al., 69 F.4th 614 (9th Cir. 2023)
Summary: The Plaintiffs, Decedent’s mother, child and estate, filed the case per the Fourth and Fourteenth Amendments arising out of a deadly shooting. The district court dismissed the case per a Rule 12 motion for failure to state a claim and the Ninth Circuit affirmed the district court’s dismissal.
Discussion: Gabriel Strickland was known to police to be homeless, aggressive and mentally ill. On January 1, 2020, the Grass Valley Police Department and the Nevada County Sheriff’s Department received calls of a man walking down a residential road carrying a shotgun. Officers encountered and recognized Strickland and held him at gunpoint, demanding he drop his weapon. Strickland told officers it was a BB gun and indicated it has an orange tip, marking it as a replica firearm. Officer Tripp responded that he could have painted that on. Officers continually demanded that Strickland drop the gun, however, Strickland began pointing the BB gun at various officers. A Taser was deployed, but it failed to attach. As Strickland continued to point the BB gun at another group of officers, three opened fire and killed him.
The court found that it was objectively reasonable for the officers to believe that the black toy airsoft rifle pointed in their direction presented an immediate threat justifying the use of deadly force. The fact that it was simply a replica, even when Strickland identified it as one, does not alter the reasonableness of the force. Under the pleaded facts in the complaint, leave to amend would be futile.
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By Attorneys Noah G. Blechman, John J. Swafford and Briana J. Waite - McNamara Law Firm, Pleasant Hill, CAHill v. City of Fountain Valley, 70 F.4th 507, 511 (9th Cir. 2023)
Summary: The Hills filed suit claiming violations under the Fourth Amendment. The Ninth Circuit affirmed the district court’s grant of summary judgment.
Discussion: A citizen called 911 to report a Ford Mustang driving erratically in the streets. Behind the wheel was a young white male, along with a blindfolded female in the car. With the aid of the car’s license plate number provided by the caller, Fountain Valley police officers figured out the home address of the driver and raced to that house the driver, Benjamin Hill, shared with his parents, hoping to thwart an apparent ongoing kidnapping. In reality, the driver was taking his wife for a “surprise” anniversary dinner. Officers ordered his parents and brother out of the home or they would be arrested for obstructing. After a brief detention, all were released. The officers never seized the mother or brother by ordering them to leave the house, as they did not submit, and the father only received a minor injury when briefly detained. While officers did not have probable cause to arrest Plaintiff for obstruction, they were shielded by qualified immunity. Plaintiffs’ Fourth Amendment claims against the Defendants failed.
Johnson v. Barr, 73 F.4th 644 (9th Cir. 2023)
Summary: The Ninth Circuit affirmed the district court’s grant of summary judgment to the defendants on the federal claims and remanded the remaining state claims of false arrest and negligence to state court.
Discussion: On January 31, 2019, Johnson was with four of her children near her van, parked near Dolores Park. Officers Chacon and Barr made contact with her. They found her to be visibly intoxicated. Her husband was located with their fifth child and was also intoxicated. Upon her husband’s arrest for public intoxication, Johnson became irate. At this point, the decision was made to arrest Johnson after it came to light she had handed her dog off to a passerby. When officers attempted to arrest her, she was uncooperative with officers and physically resisted. The children were then placed in the care of Child Protective Services and both parents bailed out of custody the next day. Even though a reasonable jury could find that the Defendants lacked probable cause to arrest Johnson, the Defendants are entitled to qualified immunity on the federal claims, however, the dismissal of the state law claims on the same grounds is reversed and remanded.
Bernal v. Sacramento County, 73 F.4th 678 (9th Cir. 2023)
Summary: The Bernals filed suit claiming violations under the Fourth Amendment for their detention and some force used while deputies were looking for their son who was reported to be planning to shoot up the high school. The Ninth Circuit affirmed the dismissal of Celia Bernal’s claims, but reversed the dismissal of William Bernal’s use of force claims.
Discussion: On March 5, 2018, six Sacramento County Sheriff’s Deputies received information that Ryan Bernal was planning a school shooting on that day at his high school. Deputy Chhlang called Ryan’s mother, Celia Bernal, to ascertain his location. Celia stated he was at his grandmother’s house, but refused to provide the address. The deputies responded to the Bernal home and Celia refused to speak with law enforcement and started her vehicle. Deputy Kennedy reached into the vehicle for the keys, but Celia blocked him. Deputies Kennedy and Chhlang secured Celia’s left arm while Deputy Winkel held her right arm in a twist lock before detaining her. Ryan’s father, William, then “aggressively” reached into a bag and, fearing a weapon, Deputy Bliss aimed his firearm at William, before recognizing there was cell phone in his hand. William resisted commands and was forcibly detained over the hood of the vehicle, causing him pain. The Bernals then led the deputies to Ryan’s grandmother’s house where he was arrested.
The imminent potential threat of a school shooting allowed the deputies to briefly detain the Bernals in order to investigate, even in the absence of reasonable suspicion. The limited amount of force used against Celia, after she continuously refused to exit her vehicle, was reasonable under the circumstances and the officers enjoy qualified immunity. However, the use of force against William was unreasonable after determining he held a cell phone and his status as a non-suspect witness demanded the officers use a lower level force. The lower courts’ decision to grant summary judgement for William’s claim was reversed.
EMPLOYMENT CASES
By: Derek Haynes, Porter ScottDodge v. Evergreen School District #114, 56 F.4th 767 (9th Cir. 2022)
Summary: A school principal violated a teacher’s First Amendment free speech rights when she threatened to discipline him if he continued bringing a “Make America Great Again” hat to faculty cultural sensitivity and racial bias trainings. Even though the principal did not discipline Plaintiff, the act of threatening him with discipline was enough to deter a reasonable person from engaging in free speech, making it unlawful.
Discussion: Defendant School District held cultural sensitivity and racial bias training for its teachers. Plaintiff, who had been a teacher for 17 years, decided to wear a MAGA hat to the training. He wore it to the doors of the school, removed it once inside, and placed it on the table in front of him. Several teachers attending the training complained to Defendant Principal Garrett about Plaintiff’s conduct. The college professor teaching the training also reported feeling “intimidated and traumatized.” One teacher reportedly cried. Principal Garrett consulted Defendant Human Resources Officer Gomes and then instructed Plaintiff to “use better judgement,” asking that he stop wearing the hat.
Plaintiff returned with his MAGA hat for the second day of training. A teacher at the training sent a text to Principal Garrett reporting Plaintiff’s conduct. Principal Garrett met with Plaintiff later that day. Plaintiff claims she asked him, “What is the fucking deal with your hat?” Plaintiff further claims that Principal Garrett called him a “homophobe and a racist and a bigot and hateful.” She allegedly told him, “Next time I see you with that hat … bring your union rep because I’ll have mine.”
Plaintiff filed an internal grievance. The District investigated and found that although Principal Garrett singled out Plaintiff for political expression, she did not violate any District policy because the District’s antidiscrimination policy does not ban discrimination based on political beliefs. Still, the District directed Principal Garrett to either resign or accept a demotion. She resigned. Plaintiff was never punished.
Plaintiff nevertheless sued the District, Principal Garrett and HR Officer Gomes under 42 U.S.C. § 1983, claiming Defendants retaliated against him in violation of his First Amendment right to free speech. The district court granted summary judgment for Defendants and Plaintiff appealed to the Ninth Circuit.
The first issue considered on appeal was whether Plaintiff offered evidence sufficient to show that Defendants subjected Plaintiff to First Amendment retaliation. That required proof that: (1) Plaintiff engaged in protected speech; and (2) Defendants took adverse actions against him because of that protected speech.
As to the first element, a public employee’s speech only qualifies as “protected speech” if the employee was acting as a private citizen when engaging in the speech and the speech related to a matter of public concern. An employee acting as a private citizen enjoys free speech protections, but public entities may rightfully regulate speech when individuals are acting as employees. Here, the Ninth Circuit had “little trouble concluding” that Plaintiff was speaking as a private citizen because he was displaying his message on a personal item rather than “taking advantage of his position to press particular views upon the … captive minds before him.”
The Ninth Circuit also concluded that Plaintiff’s MAGA hat related to
a matter of public concern – Donald Trump’s presidential campaign. Confusingly, Defendants argued that Plaintiff was not wearing the hat to convey political speech, but instead was wearing it to protect his skin. The Court dismissed the argument out-of-hand, stating the MAGA slogan was “obviously political in nature” and a “quintessential matter for public concern.” Thus, Plaintiff established that he engaged in protected speech.
The Court then turned to whether Plaintiff established that Defendants took adverse employment actions against him in retaliation for his speech. In standard retaliation and discrimination cases, courts define “adverse employment action” as any action that materially and adversely affects the terms, conditions or privileges of the employee’s employment. The Ninth Circuit explained that the phrase is even broader in First Amendment retaliation cases. In First Amendment cases, “adverse employment action” is defined as any action that is “reasonably likely to deter the employee from engaging in constitutionally protected speech.”
Relying on that broader definition, the Ninth Circuit held that Plaintiff suffered an adverse employment action even though Defendants never punished him. The Court concluded that Principal Garrett’s comment that Plaintiff would “need to have [his] union rep” present if he wore the hat again was “reasonably likely to deter an employee” from engaging in that conduct. Therefore, it constituted an adverse employment action. Plaintiff, however, failed to show that HR Officer Gomes or the District took any adverse actions against him because they did not engage in any conduct that could be interpreted as coercive or threatening toward Plaintiff.
The Ninth Circuit then considered the two defenses raised by Defendants. First, the Court considered the Pickering defense. That defense allows defendants to avoid liability when they have a legitimate administrative interest in preventing the plaintiff’s speech that outweighs the plaintiff’s interest in free speech. To meet that standard, defendants must establish that allowing the speech would cause “actual, material and substantial disruption” or a “reasonable prediction of disruption in the workplace” that would “interfere with the regular operation of the enterprise” or “erode the public trust between the school and members of its community.” Speech that merely outrages or upsets co-workers without any “actual injury” to the employer’s operations is insufficient.
Principal Garrett argued that deterring Plaintiff from bringing his MAGA hat served an important administrative interest because teachers and staff reported feeling upset, angry, scared and unsafe. The Ninth Circuit held that was insufficient because there was no evidence that the hat actually interfered with school operations. The Court noted:
“That some may not like the political message being conveyed is par for the course and cannot itself be a basis for finding disruption of a kind that outweighs the speaker’s First Amendment rights.”
The Ninth Circuit then considered the application of qualified immunity. To overcome a qualified immunity defense, plaintiffs must prove that the constitutional right that defendants violated was “clearly established” at the time of the violation such that a reasonable person would have known that their conduct violated the plaintiffs’ rights. The Ninth Circuit found that Plaintiff showed enough to overcome that defense at the summary judgment stage because, under the circumstances, a jury could find that a reasonable person would have known that threatening Plaintiff not to wear a MAGA hat would violate his First Amendment rights.
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By: Derek Haynes, Porter ScottTherefore, the Ninth Circuit reversed the district court’s order dismissing Plaintiff’s claims against Principal Garrett. The Court, however, found that Plaintiff failed to establish that HR Officer Gomes and the District engaged in any conduct that interfered with Plaintiff’s First Amendment rights. Therefore, the claims against them were rightfully dismissed.
Musgrove v. Silver (2022) 82 Cal.App.5th 694
Summary: The California Court of Appeal held that a defendantemployer could not be liable for the death of an employee during a vacation that was paid for by the employer because the trip and the events that caused the death were largely personal in nature.
Discussion: Plaintiffs are the parents of a deceased executive assistant to Hollywood film producer Joel Silver. They brought a wrongful death action against Silver for the death of their daughter, who drowned during a trip to Bora Bora that was paid for by Silver.
Silver paid for 12-15 people to attend the trip. The trip was for actress Jennifer Anniston’s wedding celebration. The group had dinner and drinks together. They did so indoors because of poor weather conditions along the water. After dinner, Silver’s private chef, who Silver also paid to attend, invited the assistant “to party” at his bungalow. The two drank more wine and ingested cocaine. Silver was not present at the bungalow. At around midnight, the assistant returned to her bungalow, where she went for a swim in the lagoon and ultimately drowned. Two autopsies confirmed the cause of death was accidental drowning, with contributing causes of alcohol and drug use.
Plaintiffs’ wrongful death suit asserted that Silver was directly liable for the assistant’s death as well as vicariously liable for the chef’s actions. The trial court granted Silver’s motion for summary judgment, holding that he was neither directly liable for the assistant’s death nor vicariously liable for the chef’s conduct contributing to her death. Plaintiffs appealed.
The Court of Appeal first considered whether Silver could be directly liable for the assistant’s death. Plaintiffs could only hold Silver directly liable if either: (a) Silver placed the assistant in a situation in which she was exposed to an unreasonable risk of harm; or (b) Silver had a special relationship with the assistant obligating him to protect her.
The Court held that although Silver paid for the alcohol consumed by the assistant, the act of furnishing alcohol to another adult does not itself create an unreasonable risk of harm. The Court specifically noted that Silver did not supply the assistant with the cocaine she ingested nor did he or have any knowledge that anyone was ingesting it.
The Court then looked to whether Silver could be held directly liable based on a special relationship with the assistant. Employers have a special relationship with their employees that triggers a duty to protect employees in limited circumstances.
Here, however, the Court held that Silver did not have a special relationship with the assistant under the circumstances for a few reasons. First, the Court pointed out that the assistant was employed by Silver Pictures Entertainment, not Silver himself. Moreover, even if Silver employed the assistant, employers only have a duty to protect employees when they are actually “at work” or otherwise under the employer’s control. The undisputed facts showed that the assistant was not under Silver’s control while drinking alcohol, ingesting cocaine, and
going for a midnight swim in poor weather conditions.
The Court then turned to whether Silver could be vicariously liable for the conduct of his chef. To hold Silver vicariously liable, Plaintiffs needed to prove that (1) the chef engaged in negligent conduct causing injury to Plaintiffs’ daughter, and (2) the chef was acting within the scope of his employment at the time of his negligent conduct.
Here, Silver’s chef was hired to perform the duties of a private chef. That included purchasing groceries and preparing lunches and dinners for Silver’s entourage. The Court held that the chef’s conduct on the night of the assistant’s death – taking the assistant back to the bungalow for more drinks and cocaine - was “not required by, engendered by, or any outgrowth of [the chef’s] job as Silver’s chef.” Plaintiffs countered by pointing out that the chef sent a text inviting the assistant to his bungalow while he was still working. Thus, according to Plaintiffs, the acts of providing the assistant alcohol and cocaine was an “outgrowth” of the chef’s employment. The Court dismissed this argument, explaining that the key analysis is whether the employee’s negligent conduct is an outgrowth of their job, not whether the plaintiff can identify “something the employee did while at work.”
The Court therefore affirmed the trial court’s order granting Silver summary judgment because Plaintiffs failed to show that Silver was directly or vicariously liable for their daughter’s death.
Griego v. City of Barstow (2023) 87 Cal.App.5th 133
Summary: Public agencies have broad discretion when deciding appropriate disciplinary actions for their employees that can only be disturbed if they abuse that discretion.
Discussion: Plaintiff Jesse Griego worked for the Barstow Fire Department as a captain. In 2007, Barstow issued a memorandum to all personnel directing them not to attend sporting events while on duty. Plaintiff did not heed that warning. He was caught coaching youth sports, including the High School girls’ softball team, while on duty. Barstow issued Plaintiff a reprimand for that conduct.
Plaintiff was later caught doing the same thing again – coaching youth sports while on-duty. He was again reprimanded. He was later seen taking a fire engine to a sports event and again coaching while on duty. Barstow then reprimanded Plaintiff for a third time. Plaintiff was argumentative and showed no remorse during the third reprimand. In 2017, a safety officer at Barstow High School reported a suspected inappropriate relationship between Plaintiff and a student who was on the softball team. The officer witnessed Plaintiff bringing lunch to the student during school hours and saw the student driving Plaintiff’s car. Other students also reported that the student was wearing Plaintiff’s shirt, the two of them adopted a cat together, and they visited a theme park together.
A few months later, the Police Department opened a statutory rape investigation against Plaintiff. Plaintiff was placed on administrative leave during the investigation and ordered to have no contact with the High School girls’ softball team. Plaintiff, nonetheless, continued attending practices and games and communicated with the coaches and players, including the student he was alleged to have a relationship with. The detectives investigating the case felt Plaintiff was having an inappropriate relationship with the student, but the District Attorney’s office elected not to prosecute.
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By: Derek Haynes, Porter ScottPlaintiff’s ex-wife also applied for a restraining order against Plaintiff. Amongst other things, she sought an order directing Plaintiff to store his firearms with the police. Plaintiff filed a response to the application, claiming he did not own any guns. He later admitted that was false. Police also observed Plaintiff carrying a concealed firearm without a permit.
The City of Barstow launched an investigation of its own into Plaintiff’s litany of misbehaviors. The City’s investigation sustained findings of 18 policy violations by Plaintiff. The fire chief thereafter issued Plaintiff a notice of termination.
Plaintiff appealed the findings to “advisory arbitration” under the applicable memorandum of understanding (“MOU”). The arbitrator found there was only evidence to sustain 6 of the 18 allegations against Plaintiff. Specifically, the arbitrator found insufficient evidence to sustain the allegations relating to Plaintiff’s alleged inappropriate relationship with the 15-year-old student because the student and her family “testified nothing untoward had happened.”
The arbitrator sent his “advisory” findings to the city manager. Pursuant to the MOU, the city manager amended the arbitrator’s order, concluding that even if Plaintiff did not have sexual contact with the student, Plaintiff’s relationship with the student was inappropriate. The city manager then upheld the fire chief’s notice of termination and terminated Plaintiff.
Plaintiff challenged the decision through a writ of administrative mandate. As part of those proceedings, the superior court found sufficient evidence to sustain only 3 of the allegations levied against Plaintiff: coaching while on-duty, carrying a concealed firearm without a permit, and filing a false court document. The superior court then held that the termination was inappropriate based on those 3 allegations and remanded the matter to the City to reconsider its disciplinary action.
The City appealed, challenging the superior court’s conclusion that the City could not terminate Plaintiff based on the 3 sustained allegations. On appeal, the Court of Appeal held that the standard on a writ of mandate like the one filed by Plaintiff is “abuse of discretion.” It was Plaintiff’s burden to prove that the City abused its discretion in terminating his employment. The Court of Appeal explained that public agencies have broad discretion in choosing appropriate discipline. Their decisions will only be overturned if they abuse that discretion. The Court noted that “if reasonable minds may differ, there is no abuse of discretion.”
Based on that standard, the Court of Appeal held that it was not an abuse of discretion for the City to terminate Plaintiff’s employment even if only 3 of the 18 allegations against him were sustained. The Court concluded that those 3 sustained allegations – that Plaintiff continued coaching while on duty after being told to stop, he carried a concealed firearm without a permit and lied in a document he filed with the court – demonstrated Plaintiff’s “lack of credibility, reliability, and trustworthiness.” That was enough to conclude that the City did not abuse its discretion in terminating Plaintiff.
Bitner v. Department of Corrections & Rehabilitation (2023)
87 Cal.App.5th 1048
Summary: California Government Code § 844.6, which exempts public entities from liability arising from “injury proximately caused by any prisoner,” immunized the Department of Corrections and Rehabilitation (“CDCR”) from liability for claims that inmates were
subjecting employees to sexual harassment and that CDCR failed to remedy the situation in violation of the Fair Employment and Housing Act (“FEHA”).
Discussion: Plaintiffs worked as vocational nurses for the CDCR. They filed suit under the FEHA, alleging they were subjected to consistent sexual harassment by inmates, and the CDCR failed to prevent or remedy the situation. The trial court granted summary judgment in favor of CDCR, holding that the immunities set forth in Government Code § 844.6 shielded the CDCR from liability based on prisoner conduct. On appeal, Plaintiffs argued that FEHA claims should be exempt from the immunity. The Court of Appeal rejected their argument and affirmed the trial court’s judgment.
Section 844.6 states: “Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 845.4 and 845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for: (1) An injury proximately caused by any prisoner.”
In rejecting Plaintiffs’ argument that FEHA claims should be exempt from the immunity, the Court pointed to the explicit language of section 844.6, which provides for what the Court described as “absolute” immunity except for in the limited circumstances listed in the statute. The Court explained that if the Legislature wanted to exempt FEHA claims from that immunity, it would have said so in the statute. The Court also noted that the statute’s language is so clear that it could not consider Plaintiffs’ plea for a “public policy” exception for FEHA claims. Thus, the Court of Appeal ruled that the immunities set forth in Government Code § 844.6 protected the CDCR from liability on Plaintiffs’ claims under the FEHA.
Vines v. O’Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174
Summary: Plaintiffs can recover fees they incur in pursuing unsuccessful FEHA claims if the unsuccessful claims are sufficiently related to their successful claims.
Discussion: Plaintiff Renee Vines filed suit alleging race and agebased discrimination and harassment under the FEHA as well as a claim for retaliation under the FEHA. The jury returned a verdict in favor of Plaintiff on his retaliation claim, but not his harassment and discrimination claims. By statute, Plaintiff was entitled to recover the attorney’s fees he incurred on his successful retaliation claim. The trial court apportioned those fees, finding Plaintiff was entitled to 25% of the total fees incurred by his counsel because only 25% of counsel’s time was devoted to the retaliation claim while 75% of his time was devoted to the unsuccessful harassment and discrimination claims. Plaintiff appealed. The Court of Appeal reversed. It held that courts must consider whether the unsuccessful claims are related to the successful claims when evaluating apportionment of fees. If a plaintiff asserts “distinctly different claims for relief that are based on different facts and legal theories,” then the unrelated, unsuccessful claims “must be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.” If the claims are sufficiently related, however, then the fees award should not be reduced to account for the unsuccessful claims if the plaintiff achieved substantial relief on the successful claims.
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By: Derek Haynes, Porter ScottIn application, the Court of Appeal found that Plaintiff’s unsuccessful harassment and discrimination claims were sufficiently related to his retaliation claim. To recover on his retaliation claim, Plaintiff had to prove that he was retaliated against for engaging in “protected activity.” Plaintiffs engage in “protected activity” under the FEHA when they report conduct that they reasonably believe violates the FEHA. Here, Plaintiff claimed that he engaged in protected activity when he complained about harassment and discrimination. Thus, he had to offer evidence of harassment and discrimination in order to prevail on his successful retaliation claim. That rendered the claims sufficiently related to warrant awarding Plaintiff fees associated with both his successful and unsuccessful claims.
Atalla v. Rite Aid Corp. (2023) 89 Cal.App.5th 294
Summary: Employers are strictly liable for harassment by a supervisor under the FEHA. That liability, however, does not extend to harassment arising out of the supervisor’s personal relationship with the employee that occurs outside of the workplace and work hours.
Discussion: Plaintiff developed a platonic, personal relationship with Stephen Lund while Plaintiff was in pharmacy school. The two of them exchanged more than 500 text messages regarding a variety of topics, including meeting up for food, vacations and travel, exercise and weight loss, and personal family matters. They regularly met for coffee and lunch, spent holidays together and attended social outings with each other’s spouses. Plaintiff and Lund both described their relationship as that of close friends.
Sometime thereafter, Plaintiff started working at Rite Aid Pharmacy, where Lund was her supervisor. Late one night during that period of time, Lund and Plaintiff exchanged a series of text messages after they both were drinking. Lund eventually sent a message containing a video of himself masturbating with a message saying, “I’m so drunk right now.” Lund immediately sent another message claiming the video was meant for his wife and he mistakenly sent it to Plaintiff. Plaintiff told Lund that she deleted the video “before I end up in a divorce.” Lund then sent another message with a picture of his penis. Plaintiff responded, “Stop please.” Lund responded, “You are right” and stopped.
Plaintiff reported the situation to Rite Aid. Rite Aid then immediately fired Lund and invited Plaintiff to return to work. Plaintiff refused and, instead, filed suit against Rite Aid for sexual harassment by a supervisor under the FEHA. The issue on appeal was whether Lund’s conduct constituted workplace harassment that was imputable to Rite Aid.
Generally, employers are strictly liable for harassment by a supervisor under the FEHA. The FEHA, however, only protects against workplace harassment. Thus, courts must first analyze whether the supervisor was acting in the capacity of a supervisor when the harassment occurred. Employers are not strictly liable for harassment by a supervisor that “results from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.” In affirming the trial court’s conclusion that Lund was not acting as a supervisor, the Court of Appeal pointed to the admissions of both Plaintiff and Lund that the two of them were close friends before Lund became Plaintiff’s supervisor. They developed a personal relationship, including exchanging hundreds of text messages. The Court concluded it was that relationship that spawned Lund’s harassing conduct. The Court also cited the fact that the harassing acts occurred
outside of the workplace and outside of work hours to support its conclusion that the harassment was unrelated to Plaintiff’s work.
Plaintiff attempted to avoid that by citing the fact that the harassing texts began with Lund asking Plaintiff how her work week went. The Court, however, found that was a common question asked by a friend. The text message exchange then devolved into discussing personal matters before Lund sent the harassing texts.
Therefore, the Court of Appeal affirmed the trial court’s order granting Rite Aid summary adjudication of Plaintiff’s sexual harassment claims based on the fact that Lund was not acting as a supervisor when he engaged in the harassing acts.
Groff v. DeJoy (2023) 143 S. Ct. 2279
Summary: Defendants can no longer avoid granting religious accommodations based on a minimal showing that the requested accommodation would cause a hardship on their operations. They now must show that granting the accommodation would cause “substantial increased costs” for the employer’s business.
Discussion: Plaintiff Gerald Groff was an employee of the United States Postal Service (“USPS”). He is also an Evangelical Christian who believes that Sunday should be devoted to worship and rest. USPS did not require Plaintiff to work Sundays when it hired him as a rural mail carrier in 2012. That changed when USPS began delivering packages for Amazon on Sundays.
Plaintiff refused the new practice. He would not work on Sundays. That led to a series of disciplinary acts by his supervisors. Plaintiff eventually resigned and brought an action under Title VII alleging that USPS failed to make reasonable accommodations for his religious faith.
The district court granted summary judgment in favor of USPS based on long-standing precedent that employers can avoid liability for failing to provide religious accommodations by offering a de minimis showing that doing so would cause a hardship on business operations. USPS introduced evidence that Plaintiff’s stance “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” The Third Circuit Court of Appeals affirmed, stating that the applicable standard for proving an undue hardship defense is “not a difficult threshold.”
The United States Supreme Court overruled those rulings and announced a new standard for religious accommodation cases. The Court explained that employers must satisfy more than a de minimis standard to invoke the undue hardship defense. Otherwise, employers would have too much latitude to deny accommodations, which would lead to unjustifiable results. Instead, the Supreme Court held that to invoke the undue hardship defense, employers must prove that granting the religious accommodation “would result in substantial increased cost in relation to the conduct of the [employer’s] business.” The Court explained that the burden of granting the accommodation must be one that is “excessive” or “unjustifiable” for employers to avoid providing it based on an undue hardship.
The Court therefore vacated the lower courts’ ruling and remanded for further proceedings in light of the new standard for involving the undue hardship defense.
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By: Derek Haynes, Porter ScottPrice v. Victor Valley Union High Sch. Dist. (2022) 85 Cal. App.5th 231
Summary: The fact that an employee fails a pre-employment physical examination does not necessarily mean that the employee is unable to perform the essential functions of the job.
Discussion: Plaintiff La Vonya Price worked for Defendant Victor Union High School District as a long-term substitute teacher in the Fall of 2007. She voluntarily left the position due to a disability that caused intense swelling in her knee. Plaintiff never informed anyone at the District about her disability. Price then worked for a different school district as a substitute teacher in the special needs department beginning in 2013. Again, she did not tell anyone about her disability.
In February 2018, Plaintiff returned to Defendant Victor Union High School District as a part-time substitute Instructional Assistant in the special needs department. She then applied for a full-time Instructional Assistant position in the same department when a full-time position became available. Plaintiff answered “no” to the questions on the application asking whether she had a disability and whether she needed an accommodations. She did so even though she knew that her physical restrictions prevented her from jogging, lifting more than a few pounds, and from working more than 20-25 hours per week.
Defendant ultimately offered Plaintiff the full-time position on the condition that she passed a physical examination. Defendant requires physical examinations for all full-time positions. Plaintiff never took a physical examination for any prior positions because they were parttime positions. Plaintiff failed the physical examination. The District then rescinded the job offer. It also terminated her from the current substitute position she was filling, citing her failed physical examination.
Plaintiff subsequently filed suit against the District claiming disability discrimination, retaliation, failure to engage in the interactive process, and failure to accommodate her disability. The trial court granted the District’s motion for summary judgement and dismissed Plaintiff’s action. Plaintiff appealed.
The most relevant issue decided by the Court of Appeal was whether Plaintiff could perform the essential functions of the job, which is an essential element of her claims. The District argued that Plaintiff could not perform the essential functions, as evidenced by the fact that she failed the physical examination that tested her ability to perform the physical functions of the job. Amongst other things, Plaintiff could not jog, which is something the District claimed was necessary given the pattern of special needs students running from their teachers.
The Court of Appeal reversed the trial court, finding there was a triable issue of fact regarding whether Plaintiff could perform the essential functions of the job. The Court questioned whether the physical examination truly tested the “essential” functions. The Court explained that the fact Plaintiff had been performing the job competently on a substitute basis prior to taking the physical examination could lead a jury to conclude that the duties Plaintiff was unable to perform were not truly essential to the job. Thus, the trial court erred in granting summary judgment.
One other issue addressed by the Court was evidence supporting an allegation of discriminatory animus. Plaintiff offered evidence that the District referred to her as a “liability” on a few occasions when advising her that it was rescinding the job offer. The Court of Appeal cited those statements as evidence of discriminatory animus.
Plaintiff appealed to the California Court of Appeal. The Court reversed the trial court’s order granting summary judgment, holding that Plaintiff had raised a triable issue of fact as to whether she was unable to perform the essential functions of her instruction assistant position, notwithstanding the doctor’s statement that Plaintiff was “not medically suited” for the permanent position.
Defendant argued that Plaintiff needed to be able to “run after students.” The Court disagreed. First, the Court found that Plaintiff had presented sufficient evidence to at least argue that Defendant could have placed Plaintiff in a full-time instruction assistant position that did not require her to provide physical assistance to students. Second, the Court found Plaintiff’s argument that running after students was not actually an essential function of her instruction assistant position because Plaintiff had been working in the same position, albeit parttime, for several months before her termination.
Third, the Court stated that Defendant’s reason for terminating Plaintiff— her inability to perform certain functions—was arguably false and pretextual given that Plaintiff presented evidence that Defendant’s human resources officer had told Plaintiff four times that she was “a liability.” This suggested that Defendant actually terminated Plaintiff because of her disability—not necessarily because she had failed her physical examination.
The Court’s distinction is slight, but it illuminates the key analysis in any disability discrimination case where the employer claims it did not have an obligation to provide reasonable accommodation to an employee because the employee cannot perform the essential functions of their job, with or without reasonable accommodation.
Employers may not terminate employees merely because they have a disability; that is, because their disability presents “a liability” to the employer. But employers may terminate an employee if they can affirmatively and effectively prove that the employee was unable to perform the essential functions of their position with or without reasonable accommodation. Essential functions are duties include those that are actually indispensable. Reasonable accommodation may include transfer to a vacant position or demotion to a position that the employee can physically manage.
In Price, the Court held that Plaintiff had presented sufficient evidence showing that she could have performed the essential job functions of the instruction assistant position because (a) “running after students” was not actually an essential job function, (b) Plaintiff could have been assigned to a position that did not require her to perform those physical tasks, and (c) Plaintiff had been doing the job for months prior to the physical examination, without issue.
The Court of Appeal therefore sent the action back to the trial court to be tried before a jury.