Two New Laws Intended to Address Teacher Shortage

September 2017
Number 54

Governor Jerry Brown signed two bills intended to ease California’s teacher shortage. Assembly Bill (AB) 681 seeks to expedite processing of credential applications for teachers who studied in other countries, while AB 170 eliminates the requirement that an applicant for a multiple subject teaching credential possess a bachelor’s degree in a subject other than education.

Both laws take effect January 1, 2018.

AB 681 will give the Commission on Teacher Credentialing (CTC) the authority to deem other countries’ national standards for coursework, programs or degrees equivalent to those offered by a regionally accredited institution in the United States. This allows a potential employee who holds or is eligible for a credential in another country to have satisfied California’s teaching credential requirements. For some job candidates, this will shortcut the case-by-case process of foreign transcript evaluation, and quickly move them into classrooms.

The bill will require the CTC to adopt regulations that establish uniform standards and procedures for determining whether another country’s national standards are considered equivalent to California’s.

The bill will also require school districts, county offices of education and charter schools applying for visas for potential employees to report annually to the state Department of Education the number of visas applied for and the number granted to certain nonimmigrant alien job candidates.

AB 681 also modifies the requirement that county boards of education obtain a CTC certificate of clearance before issuing a temporary certificate authorizing classroom service-a relatively new requirement imposed by 2016’s AB 1918 that had unintended impacts on teachers adding new subject areas to an existing credential. AB 681 will allow teachers with a “credential, certificate or permit authorizing the performance of services in public school” to obtain a temporary certificate without first receiving a certificate of clearance from the CTC.

AB 170 eliminates the requirement that a candidate for a multiple subject teaching credential or preliminary multiple subject teaching credential must possess a baccalaureate degree in a subject other than professional education. Eliminating this requirement allows students who earn a degree in education to more quickly complete a credentialing program.

If you have any questions about AB 681 or AB 170 or teacher credentialing in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner & Co-Chair

Roxana R. Khan

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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California Supreme Court Denies Untimely Childhood Sexual Abuse Damages Claim

September 2017
Number 53

A divided California Supreme Court threw out a woman’s claim against a public agency arising from resurfaced memories of alleged sexual abuse in the early 1990s because it was not submitted to the public agency by the six-month deadline for submitting such claims under the Government Claims Act. (Rubenstein v. Doe No. 1 et al. (Aug. 28, 2017, No. S234269)__ Cal.5th __.)

In a 4-3 decision, the Court found that the “delayed discovery rule” applicable to childhood sexual abuse claims for alleged conduct occurring before January 1, 2009 does not affect the six-month deadline to present a personal injury claim to a public entity. The Court’s holding inRubenstein underscores the “measured actions” the California Legislature has taken to protect public entities from potential liability for stale claims.

The Government Claims Act and Code of Civil Procedure section 340.1

The Act generally requires that claims against a public entity for money or damages must be presented in writing to the public entity prior to filing a lawsuit in court, and must also be filed within six months of when the claim arises. A potentially competing provision is the delayed discovery rule in Code of Civil Procedure section 340.1, which provides that a lawsuit for childhood sexual abuse must be filed within the later of eight years of the date the plaintiff turns 26 or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury was caused by the sexual abuse.

Background

The Rubenstein lawsuit originated when a 34-year-old woman submitted a claim to a school district alleging that from 1993 to 1994, she was sexually molested by her high school track coach. She alleged that latent memories of the sexual abuse resurfaced in early 2012. Within six months of this discovery, she filed a claim with the district under the Act. The school district denied the claim as untimely, the woman filed suit, and the trial court dismissed the case on the school district’s demurrer. The Court of Appeal reversed, agreeing with the plaintiff that her claim was timely under the limitations period set forth in section 340.1.

The California Supreme Court disagreed. In reversing the Court of Appeal, the Court discussed at length its 2007 decision inShirk v. Vista Unified School District, which expressly rejected the argument that section 340.1 postpones a victim’s duty under the Act to present a claim for childhood sexual abuse against a public entity within six months of the alleged abuse. The Court reasoned that section 340.1 only applies to statutes of limitations, and since the claim presentation deadline under the Act is not a statute of limitations, section 340.1 did not affect that deadline. Thus, although the cause of action may have been timely for purposes of the statute of limitations, the presentation of the claim against the public entity remained untimely, having fully accrued when the alleged abuse occurred.

The Court recognized that in direct response to Shirk, the Legislature enacted Government Code section 905, subd. (m), which added an exception to the claims requirement for childhood sexual abuse claims, but only those arising out of conduct occurring on or after January 1, 2009. The legislative history behind section 905 makes clear the Legislature overruled Shirk only prospectively due to fiscal considerations, leaving Shirk’s holding intact regarding pre-2009 claims. In so doing, the Rubenstein Court recognized “the Legislature put governmental entities on notice that for conduct allegedly occurring on or after January 1, 2009, they would have to protect themselves as best they could against possible stale claims. But the Legislature also intended to protect those entities from such claims for conduct occurring before that date.”

The Court also found support for its conclusion in the public policy considerations underlying the claim presentation requirement of the Act, which include providing the opportunity for public entities to promptly remedy the issue; minimizing the risk of similar harm to others; permitting investigation while evidence is still available, memories are fresh, and witnesses can be located; allowing for settlement of meritorious disputes without costly litigation; and providing time for appropriate budgetary planning.

Takeaways

This case makes it clear that public entities continue to be protected from potential liability for stale claims for alleged sexual abuse occurring before January 1, 2009, but must find ways to protect themselves from claims related to later-occurring conduct.

For more information on the Rubenstein decision or on application of the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Erin Frazor

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Broadens List of Sex Offenses that Lead to Immediate Suspension of Teaching Credential

September 2017
Number 52

State lawmakers have revised the list of sex offenses that mandate the immediate suspension of a teaching credential. These changes take effect on January 1, 2018.

Assembly Bill (AB) 872 adds several sex offenses to the list of offenses that lead to immediate suspension of a teaching credential, contained in Education Code section 44010. The new list includes all sex crimes requiring registration under the Sex Offender Act, as spelled out in subdivision (c) of section 290 of the Penal Code, and sending sexual text messages to a minor.

The bill was intended to close a loophole in current law where not all sex offenses that lead to credential revocation result in an automatic suspension of credentials by the Commission on Teacher Credentialing (CTC). Under existing law, employees can be charged with a sexual offense that could lead to a revocation action by the CTC, but remain able to teach because their credential is not suspended. This legislation broadens the list sexual offenses for which CTC can immediately suspend a credential pending revocation.

The new law also expands the circumstances under which a district is required to place an employee on a mandatory leave of absence when the employee is charged with a sex offense.

This amendment impacts multiple statutes, including those requiring a mandatory leave of absence, a mandatory denial of a credential application and mandatory suspension and revocation of a credential. For example, Education Code section 44425 states that whenever a holder of a teaching credential has been convicted of or has entered a plea of no contest for a sex offense under the definition provided by Education Code section 44010, the CTC shall suspend the credential. When the conviction becomes final or when the imposition of a sentence is suspended, the CTC shall immediately revoke the individual’s credential.

If you have any questions regarding AB 872 or suspension of teacher credentials in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Janae D. Lopes

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Discovery of Public Records after Requester Filed Lawsuit Leads to Attorney Fee Award for Plaintiff

September 2017
Number 51

A California appeals court has found a city liable for attorney’s fees after determining that a related lawsuit prompted the city to produce records during the litigation that the plaintiff had first sought through a California Public Records Act (CPRA) request.

In Sukumar v. City of San Diego, the Court of Appeal held that the City of San Diego, although acting in good faith and having ultimately disclosed all records responsive to a CPRA request, had to pay a plaintiff’s attorney fees after being sued under the CPRA. A key factor in the court’s decision was the city’s repeated assurances to both the plaintiff and the trial judge that all responsive records were disclosed when in fact this was not the case.

The CPRA and the Catalyst Theory

A public agency may be sued under the CPRA if a requesting party believes the agency’s response to their request for records was inadequate. Plaintiffs in such cases are eligible for an award of attorney’s fees if they win their case. They may also be eligible for fees in situations where they do not win but can prove there was a substantial causal relationship between the lawsuit and the public agency’s production of additional records. This method of securing attorney fees is known as the “catalyst” theory. This rule applies to all local agencies that must produce records
under the CPRA.

Background

Plaintiff Ponani Sukumar made a CPRA request seeking 54 separate categories of records dating back to 1990 that related to neighbors’ complaints regarding a list of code violations Sukumar allegedly committed and the city’s investigation of those complaints. About a month after Sukumar made his request, the city provided access to some of the records and sent a letter stating that this was the city’s “last response.” Three weeks later, Sukumar filed a lawsuit alleging that the city was withholding responsive documents. The city continued to produce records after the suit was filed.

During the legal proceedings, the city’s attorney claimed that all of the responsive documents had been produced. However, a key document was subsequently produced on the day that depositions of city employees were scheduled. During a deposition, a city employee indicated that additional records may not have been produced. Following the depositions, the city produced an additional 146 pages of emails and five photographs.

After the city produced these additional records, the trial court held that Sukumar’s lawsuit was moot because the city had produced all of the responsive documents. The court also decided that the lawsuit was not the motivating factor for the city’s production of the additional records, and as a result, Sukumar was not eligible for recovery of attorney’s fees. Sukumar appealed the attorney fee decision.

The appeals court reversed the trial court’s decision, determining that substantial evidence existed to show that the lawsuit induced the city to locate and produce additional records, entitling the plaintiff to recover attorney’s fees. The Court of Appeal was not persuaded by the city’s argument that the lawsuit did not cause it to produce requested records because the city had already agreed to turn them over, holding that “but for” the court-ordered depositions, which were a direct product of the lawsuit, the city would not have continued to look for, or produce, the responsive records. The Court of Appeal acknowledged that there was no evidence of bad faith on the city’s behalf, but held that bad faith is not the applicable test.

Takeaways

The decision in this case highlights the importance of carrying out broad and comprehensive searches for records responsive to CPRA requests from the outset. Such searches may reduce the likelihood of overlooking responsive records. This will be especially challenging given the volume of electronic data under a public agency’s control. Also, when a public agency knows that additional records may be discovered at a later date, it may be in the agency’s best interest to immediately notify the requesting party when the records will be made available. By following these practices, public agencies can hopefully avoid the issues presented in this case and the accompanying risk of attorney’s fees.

If you have any questions about the Sukumar decision or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

Steve Ngo

Senior Counsel

Jerrad M. Mills

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Department of Education Issues Dyslexia Guidelines

September 2017
Number 50

The California Department of Education (CDE) has published new guidelines for serving students with dyslexia. The California Dyslexia Guidelines can be found here.

Assembly Bill (AB) 1369, which became effective on January 1, 2016, required the CDE to develop and disseminate the guidelines in time for use no later than the beginning of the 2017-2018 school year.

The guidelines are not mandatory, but they offer practical methods to identify and comprehensively assess students with dyslexia that are likely to assist local educational agencies (LEAs), including school districts and county offices of education, in complying with the “child find” mandate of the Individuals with Disabilities Education Act (IDEA) to identify, locate and evaluate all children with disabilities to ensure that they receive special education and related services if they qualify.

In addition to practical methods to identify students with dyslexia the guidelines also contain tools for comprehensive assessments and evidence-based interventions. Advice and tools offered in the guidelines include:

  • Universal screenings, beginning in kindergarten and continuing each year, increase the likelihood of early identification of and intervention for students with dyslexia. The guidelines’ extensive list of dyslexia characteristics, broken down by age group and grade level, will support classroom teachers in screening for students with dyslexia.
  • Assessments must cover essential reading, writing and spoken language areas, such as phonological awareness, encoding, reading comprehension and rapid naming. Speech and language pathologists and school psychologists can refer to the guidelines’ appendix of assessment tools and instruments to measure students’ phonological processing abilities when they assess for special education eligibility.
  • In addition to practical instruction on teaching methods, the guidelines suggest various accommodations and assistive technology that may help students with dyslexia fully participate in the classroom.
  • The guidelines also note that a student who has dyslexia does not necessarily need special education or related services and is not automatically eligible for services. However, the guidelines remind LEAs not to delay evaluating a student for special education eligibility if the LEA suspects or has reason to suspect that the student has dyslexia and needs special education as a result.

As the new academic year begins for schools across California, it is a good time to review the eligibility criteria for specific learning disability, with special attention paid to phonological processing and dyslexia. The
guidelines provide an opportunity for school districts to identify students who are struggling, provide interventions and ensure compliance with laws protecting students with disabilities.

If you have any questions about the California Dyslexia Guidelines or special education in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Anahid Hoonanian

Senior Counsel

Vivian Chen

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Environmental Review Not Necessarily Required Prior to Approval of a Real Property Purchase Agreement

September 2017
Number 49

The Fourth District Court of Appeal has ruled that the execution of a purchase and sale agreement for real property that is contingent upon compliance with the California Environmental Quality Act (CEQA) does not trigger a public agency’s duty to prepare an environmental impact report (EIR) under CEQA.

The California Environmental Quality Act

CEQA is a complicated body of law which requires public entities to consider environmental effects of their projects before approving them. This generally involves a three-step process where the agency must first determine whether a given activity is a “project” governed by CEQA. If so, the second step is to determine whether the project is exempt under either a statutory or categorical exemption, and if no exemption applies, the public agency proceeds to a third step of considering whether the project may have a significant effect on the environment. If all impacts are insignificant or can be mitigated to a level of less than significant, the agency may prepare a negative declaration. If the possibility of an unmitigated impact remains, then a more extensive EIR is required.

Background

In Bridges v. Mt. San Jacinto Community College District, the governing board of a community college district approved an agreement to purchase real property, contingent on CEQA compliance. A pair of citizens sued, alleging the district was required to prepare an EIR before executing the agreement. Both the trial court and the Court of Appeal disagreed, confirming that a public agency is not required to complete CEQA review prior to entering into an agreement to acquire real property, as long as the acquisition is contingent on completion of CEQA review. The appellate court held that CEQA requires the preparation of an EIR before the purchase of real property is final, but not before merely executing a purchase and sale agreement contingent upon CEQA compliance.

This exception to CEQA review, however, is narrowly construed. An agency cannot hide behind a contingent purchase and sale agreement to postpone preparation of an EIR. The applicable legal test is whether an agency has committed itself to a definite course of action. No definite course of action can be approved before the EIR is prepared, and a real property purchase and sale agreement contingent upon CEQA review alone is not a definite course of action. Once a definite course of action is taken by a public agency, however, CEQA requirements are triggered. For example, California’s CEQA guidelines authorize a public agency to enter into a land acquisition agreement if it has conditioned future use of the land on CEQA compliance, so long as it has not already approved the use of the site or specific facilities, which would require CEQA review. As long as an agency does not engage in any such action or agreement that would commit it to a definite course of action regarding a specific site, CEQA review is not required before executing a purchase and sale agreement for real property contingent upon CEQA review.

Tips to Avoid a Finding of a Definite Course of Action

  • Agencies should not commit any funds to a project, including loans to contractors or developers, until the preparation of an EIR is complete.
  • Agencies should avoid engaging developers in contract, or drafting detailed development plans, before an EIR is completed.
  • A governing body can pass a resolution selecting a specific site for construction and directing administration to make a purchase offer contingent on completion of the EIR process.
  • Governing bodies should not make public comments that may be construed as commitment to a project for which there is no EIR. Comments regarding hopes that a project will come to fruition or a project’s possibilities are acceptable.

If you have any questions about the Bridges decision or CEQA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kelly M. Rem

Partner

Jennifer Grant

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Despite Marijuana Industry Efforts, Local Control Survives

August 2017
Number 48

Eight months after California voters approved Proposition 64, which legalized adult use of recreational marijuana in California, Governor Jerry Brown signed a new bill that will facilitate the issuance of marijuana business licenses beginning in January 2018. Despite marijuana industry efforts to minimize local government regulation, the new bill guarantees continued local agencies’ control over marijuana operations in their jurisdictions.

The primary thrust of Senate Bill (SB) 94, the Medical and Adult Use Cannabis Recreation and Safety Act (MAUCRSA) is to combine state regulation of medical and recreational marijuana under the new Bureau of Cannabis Control (BCC). However, the bill also provides for local control over permitting and safety regulation of marijuana businesses. Under the new law, local agencies have the right to:

  • Expand the prohibition zones around schools, daycare centers and youth centers for marijuana businesses;
  • Inspect the premises and examine the records of licensed cannabis businesses, during normal business hours, and set fines up to $30,000 for each incident of non-compliance with local laws;
  • Regulate mobile dispensaries and require a physical, permitted location for the dispensary, even if it is closed to the public;
  • Enforce fire and life safety requirements on marijuana operations; and
  • Seize and destroy illegal marijuana, including during peace officers’ investigation stage, with unlicensed individuals being held responsible for the cost of the destruction.

Local ordinances remain exempt from California Environmental Quality Act (CEQA) review until July 1, 2019.

SB 94 also clarifies the scope of joint state and local agency jurisdiction. The bill provides:

  • State authority to delegate full power and authority to local agencies – through an agreement with local jurisdictions – to enforce regulations promulgated by the BCC;
  • Revocation of state licensure if the cannabis licensee is not complying
    with local laws;
  • The allocation of $3 million to the California Highway Patrol to be used for training drug recognition experts, which might also be used to support local drug enforcement;
  • Streamlined processes for the collection and remitting of marijuana taxes and fees;
  • A requirement that local jurisdictions provide the BCC with copies of any ordinances or regulations related to commercial cannabis operations as well as designating a contact person to act as a liaison between the BCC and the local government; and
  • Establishment of a process for local agencies and the BCC to share information about an applicant for a marijuana license.

For more information on Proposition 64 and the Medical and Adult Use Cannabis Recreation and Safety Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Local Government Practice Group or at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Jenell Van Bindsbergen

Partner

Lee Burdick

Senior Counsel

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.