Ninth Circuit Addresses Impact Of Dismissals And Settlement Of Due Process Complaints On The IDEA’s Administrative Remedy Exhaustion Requirement

October 2019
Number 43

The recent opinion of the Ninth Circuit Court of Appeals in Paul G. v. Monterey Peninsula Unified School District clarifies that dismissal or settlement of a special education due process hearing inadvance of a hearing and final administrative decision from the Office of Administrative Hearings (OAH), does not satisfy the requirement that a plaintiff exhaust administrative remedies under the Individuals with Disabilities Act (IDEA) before initiating a lawsuit in federal court asserting claims which could be redressed by the IDEA. In Paul G., the Ninth Circuit held that an adult student with autism could not sue his school district or state educational agency under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504), for failing to make an in-state residential placement available to him without having first exhausted IDEA administrative remedies, that none of the exceptions to exhaustion of administrative remedies applied, and that settlement of his special education due process case did not satisfy the exhaustion requirement.

Background

Student Paul G. was an adult special education student with autism who began having episodes of violent and threatening behavior. After unsuccessful efforts to find an appropriate educational placement for Paul, the school district offered to place him in a residential facility. However, no residential facility in California would accept the student because he was 18 years old. Paul enrolled in an out-of-state residential facility, but later became homesick, and returned home.

The student subsequently filed for due process with OAH against both the school district and the California Department of Education (CDE), alleging that the lack of an in-state residential facility for adults denied him a free appropriate public education (FAPE) under the IDEA. As a remedy, the student sought a residential placement in California and an order directing the CDE to develop in-state residential facilities for adult students. OAH dismissed the claims against the CDE, ruling that OAH did not have jurisdiction to order the creation of facilities, and that the school district, not the CDE, was responsible for education decisions affecting the student. Thereafter, the student entered into a settlement agreement with the school district, causing OAH to dismiss the case, without the due process complaint proceeding to hearing or OAH ruling on the merits of the student’s IDEA claim.

The student then initiated a lawsuit in federal court, alleging the CDE violated the ADA and Section 504, and seeking monetary damages for those alleged wrongs. The central theme of his complaint was that to receive a FAPE, he required an in-state residential placement, and the CDE had failed to provide him a residential placement in California. The United States District Court dismissed the student’s case, due to his failure to exhaust the IDEA’s administrative remedies, and the student appealed to the Ninth Circuit.

The Court’s Opinion

The Ninth Circuit considered whether the student was required to exhaust the IDEA’s administrative remedies under the circumstances, and if so, whether an exception to the exhaustion requirement applied. When a plaintiff seeks relief under the IDEA or under any other statute where the relief sought would also be available under the IDEA, the plaintiff must exhaust the IDEA’s administrative procedures before filing a civil action. Exhaustion is not required when use of the administrative process would be futile, the claim arises from policy or practice of general applicability that is contrary to law, or it is improbable that adequate relief can be obtained by pursuing administrative remedies.

The student argued that because his federal claims were brought under the ADA and Section 504, and not the IDEA, the exhaustion of remedies requirement for IDEA claims did not apply. Applying the United States Supreme Court’s test in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), the Ninth Circuit addressed this argument by analyzing whether his ADA and Section 504 claims could have been brought against a public facility that was not a school, or whether an adult employee or visitor could present the same grievance against the school. The court concluded that the answer to both these tests is no, because the relief Paul sought was fundamentally educational – access to a particular kind of school as required by his individualized education program (IEP). Therefore, even though the student brought suit under the ADA and Section 504, and not the IDEA, the student was required to exhaust administrative remedies because the relief sought was available under the IDEA. The Ninth Circuit also determined that none of the exceptions to the exhaustion requirement applied, thus concluding the student could not maintain this action after he failed to seek a final administrative decision regarding his alleged need for in-state residential education under the IDEA.

Takeaways

Paul G. is the first Ninth Circuit opinion to address exhaustion since the Supreme Court’s Fry decision
in 2017. In light of this decision, local educational agencies should carefully scrutinize any ADA or Section 504 claims that appear to seek relief that is fundamentally educational and related to a student’s unique needs. Further, a plaintiff may be unable to maintain a civil suit against a local educational agency if there is a dismissal or settlement prior to a final administrative decision.

If you have any questions about this case or special education matters 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Sloan R. Simmons

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

Associate

©2019 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 Supreme Court Holds Firefighting Immunity Under California’s Government Claims Act Is A Waivable Affirmative Defense

October 2019
Number 45

In Quigley v. Garden Valley Fire Protection District, the California Supreme Court rejected the midtrial dismissal of a lawsuit involving a firefighter who suffered severe and permanent injuries after she was run over by a water truck while sleeping at a base camp. The court held that a firefighting immunity under Government Code section 850.4, part of California’s Government Claims Act (GCA) (Gov. Code, § 810 et seq.) is an affirmative defense which must be raised before trial and may be waived absent timely assertion.

Background

Plaintiff Rebecca Quigley was a U.S. Forest Service firefighter and part of a team assigned to assist with a large fire which broke out in the Plumas National Forest in September 2009. While Quigley was fighting the fire, she had to sleep at a base camp with other firefighters. One night, while Quigley was sleeping in a field in her sleeping bag, an employee of an independent contractor who was servicing a nearby shower unit drove his truck onto the field where Quigley was sleeping, severely injuring her. Quigley sued Garden Valley Fire Protection District, Chester Fire Protection District, and their employees for damages based upon claims of negligence, failure to warn, and dangerous condition of public property.

During the trial, defense counsel filed a motion for nonsuit arguing, for the first time, that the defendants were entitled to immunity under Government Code section 850.4, which grants public agencies and public employees immunity against claims for injuries caused by fighting fires. The trial court granted the motion, rejecting Quigley’s argument that the defendants waived the immunity defense when they failed to invoke immunity in their answer to her complaint. The trial court specifically ruled that Government Code section 850.4 immunity-one of several governmental immunities provided for under the Government Claims Act -is jurisdictional and therefore could be raised by a defendant at any time, including during trial. On appeal, the Court of Appeal affirmed the nonsuit in favor of the defendants and found that the defendants were immune from liability based upon a broad interpretation of section 850.4, and that such immunity is jurisdictional and thus can be raised at any time.

The Court’s Opinion

On review, the California Supreme Court considered whether the subject governmental immunity provision, section 850.4, constituted an affirmative defense, which a defendant must timely raise, or whether such immunity was absolute so that it served as a limitation on the fundamental jurisdiction of the courts. Affirmative defenses are considered waived if not timely asserted. In reaching its conclusion, the state high court affirmed that section 850.4 in fact confers an absolute immunity from liability.However, the court distinguished absolute immunity from a question of fundamental jurisdiction, and found the section 850.4 also operates as an affirmative defense. In other words, even as an absolute immunity, section 850.4 is only effective as a shield from liability if a defendant invokes the immunity before trial as an affirmative defense.

The court found that there existed a factual dispute as to whether the defendants timely invoked firefighting immunity when they raised an affirmative defense in their answer which broadly cited all the applicable immunity provisions “from Sections 810 to 996.6, inclusive” of the Government Claims Act. The court remanded the case back to the appellate court for further adjudication on this issue.

Takeaways

Quigley is significant in that it clarifies that defendants must timely invoke the absolute firefighting immunity provided for by Government Code section 850.4 in order to reap the benefits of the affirmative defense. Critically, it is likely that the court’s analysis in this respect will apply to the timely assertion of the other governmental immunity defenses provided for under the Government Claims Act.

If you have any questions about the Quigley case or about government claims 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Lauren A. Lyman

Associate

©2019 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.

Significant New Developer Fee Cases

October 2019
Number 44

As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an “adults only” agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the specific project in question. Instead, districts are merely required to establish a nexus between the fee and the general type of project that is at issue (e.g. residential, commercial, industrial). This favorable outcome came after the same appellate court, straying from prior precedent that supported deference to local agencies, issued a published decision invalidating a school district’s developer fee justification study. The court held that the study in question was invalid because it did not provide sufficient analysis to demonstrate that the school district would have to house new students generated from development in new facilities. Both cases are part of a trend toward greater judicial scrutiny of school districts’ imposition of developer fees.

School districts in California are authorized by law to impose fees on development projects, referred to as “developer fees” or “school impact fees.” There are three separate levels of fees that can be charged, each of which are subject to different legal requirements. The first case below addresses whether a school district must analyze the potential residential population of a particular development, as projected by the developer, before imposing fees on that particular development. The second case addresses the legal requirements for preparing a Level I fee justification study.

The Tanimura Case

Tanimura & Antle Fresh Foods v. Salinas Union High School District, 34 Cal.App.5th 775, addressed a dispute regarding Level 2 developer fees. The Salinas Union High School District (Salinas) had imposed a developer fee on a 100-unit agricultural employee housing complex commissioned by Tanimura & Antle Fresh Foods, Inc. (Tanimura) within Salinas. The complex, per the terms of its development permit issued by the Monterey County Board of Supervisors, was designed to house only agricultural workers, without dependents.

In recent years, many school districts have contended with developers who argue that fees should not be imposed on their projects because the developers expect that few or no potential school age students will live in the finished project. These arguments have been made, for instance, regarding housing intended for agricultural workers, college students, or young professionals. This case affirms that a school district need not consider the developer’s intended residents for a particular project, and can instead analyze the impact of residential housing projects across the district when imposing developer fees on residential projects.

In relation to its agricultural worker housing project, Tanimura sued for a refund of its fees, alleging that the developer fees imposed by Salinas were not reasonably related to a need for school facilities, as required by statute. Tanimura cited the project’s prohibition on dependents, arguing that, as no children would reside in the complex, its construction would not generate an increased burden on the district’s facilities. The Government Code requires a public agency, before imposing prospective developer fees, to establish the purpose of the fee, the agency’s use for the funds, a reasonable relationship between the fee’s use and the type of development project on which it will be imposed, and a reasonable relationship between the need for public facilities and the type of development project on which the fee is imposed. The trial court held in favor of Tanimura, reasoning that “case law-and common sense-preclude the application of an overbroad label in a fee study that does not account for a project’s actual impact.” The court opined that Salinas was required to account for the fact that no children would be permitted to live at the complex, and in failing to do so had not met the nexus requirement of the Government Code.

In a victory for school districts, and following argument by Lozano Smith (acting as co-counsel in this matter), the Court of Appeal reversed. The court held that, when establishing a nexus between developer fees and a development project, a public agency need not consider the specific project in question; its calculus is limited to the general type of project at issue (e.g., residential, commercial, or industrial). As applied here, Salinas was not required to consider the complex’s prohibition on dependents in its fee analysis. The district’s treatment of the complex as a generic, residential development was lawful.

The court asserted that its interpretation was the only “commonsense” reading of the statute that avoided practical absurdities. To adopt Tanimura’s position, the court held, “would have the practical effect of requiring a school district to expand its needs analysis to address the projected impact on school facilities of undefined, variant subtypes of residential construction not contemplated in the statute.” The court found such an effect to be contrary with the purpose of the statutes. Further, the law contains exceptions from developer fees for certain types of developments, including government-financed agricultural migrant worker housing. However, the Legislature has created no such exception for privately-financed farmworker housing. This indicates that the Legislature did not intend for projects such as the complex to be exempted from developer fees.

The Summerhill Case

In Summerhill Winchester, LLC, v. Campbell Union School District 30 Cal.App.5th 545, the Appellate Court invalidated the Level 1 developer fees adopted by Campbell Union School District (Campbell). In doing so, the court applied the rule laid out in a prior case, Shapell Industries, Inc. v. Governing Board of the Milpitas Unified School District (1991) 1 Cal.App.4th 218, that a Level 1 fee study must include an analysis of the following three factors: (1) the projection of the total amount of housing to be constructed within the school district; (2) estimation of the number of new students that are expected to result from the new development; and (3) estimation of what it will cost to provide the necessary school facilities for that approximate number of new students.

Regarding the first Shapell element, Campbell’s fee study stated that there were “in excess of 133” residential units that could be constructed over the next five years. The court took issue with the fact that these projections were not based on data from all of the planning departments within Campbell’s boundaries. The court also held that the study’s projection was too vague to support the imposition of fees. According to the court, a projection based on consultation with only some of the local jurisdictions within Campbell’s boundaries and using a phrase such as “in excess of” is “little better than saying that ‘some’ development is anticipated.” This was found to be inadequate because the study did not provide sufficient guidance for Campbell’s Board to determine whether or not new school facilities would be needed due to anticipated development. The court found it irrelevant that the district was already over capacity at all of its schools, and essentially rejected Campbell’s argument that new facilities would be needed to house students generated from development, regardless of the number of such students.

The court also found that the fee study was invalid because it did not provide sufficient evidence for the district’s Board to determine what type of school facilities would be needed to accommodate students generated by development, if any. The court based its decision on a narrow reading of the applicable statutes.

Developers may argue that the court’s decision means that a fee study must now establish what “type” of facilities a school district will construct to house students generated by development. However, prior case law, includingGarrick Development Co. v. Hayward Unified School District (1992) 3 Cal.App.4th 320, held that specific improvement plans or building proposals were not necessary. The court acknowledged that, underGarrick, “the Board did not have to identify specific facilities that would be built or make concrete construction plans.” At the same time, however, the court concluded that “the key missing element in the fee study was what new facilities would be necessary for the new students generated by new development.” These two statements are difficult to reconcile, and create a challenge when school districts decide how specifically their fee studies must describe student housing needs. However, it remains clear that specific school construction projects need not be identified.

The court’s opinion is likely to cause confusion and possibly to disrupt established law. As a result, school districts may wish to review the adequacy of their fee justification studies.

Lozano Smith represented the school district in the litigation and appeal, and requested, on behalf of the district, that the California Supreme Court depublish the case. The request for depublication was supported by CASBO, CASH, and CSBA, and not opposed, but the request was nevertheless denied by the Supreme Court.

Takeaways

Tanimura clarifies that public agencies, when imposing prospective developer fees, need not consider the specific development project, but only the type of development project at issue. The case should also help school districts resist the claims of developers who assert that they should be relieved of fees because few or no students will allegedly be generated by a specific project.

While some may argue for a broader application, the Summerhill decision can be viewed as the court’s application of the three-factorShapell test to a particular fee study. In this regard, the case simply calls for a fact-specific analysis based on already-established precedent. The following are some best practices following the Summerhill case:

  • Avoid use of imprecise language like “at least” when describing projected development.
  • If at all possible, consult with all planning departments within the school district’s jurisdiction.
  • If at all possible, identify the general types of school facility projects that may be constructed to accommodate students (e.g., new school construction, portable additions, a mix of both, etc.). We note that such identification in the fee study is not necessarily binding on the school district when it later implements its facilities plans.

If you have any questions about the Tanimura orSummerhill cases or about developer fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. Copies of Lozano Smith’s Developer Fee Handbook are available for purchase from Lozano Smith’s Client Services Department; you can submit your request to clientservices@lozanosmith.com. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

Devon B. Lincoln

Partner

Kelly M. Rem

Partner

Benjamin Brown

Associate

©2019 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.

The United States Supreme Court Again Confronts The Reach Of The Establishment Clause

September 2019
Number 40

In American Legion, et al. v. American Humanist Association, et al., the United States Supreme Court, by split decision, ruled that a World War I memorial in Prince George’s County, Maryland, consisting of a cross, did not violate the Establishment Clause of the First Amendment of the United States Constitution, which prohibits the government from establishing an official religion or favoring one religion over another.

In 1918, residents of Prince George’s County formed a committee to erect the memorial for County residents who had fallen during World War I. The committee decided a Latin cross would be an appropriate memorial, as it had become a central symbol of the war and “row after row of plain white crosses” marking the graves of the fallen overseas was a central image on the minds of many Americans. When the Committee ran out of money, the local American Legion completed the memorial’s construction, whose emblem is featured at the center. During the dedication ceremony, a Catholic priest and a Baptist pastor engaged in religious ceremonial activities. The memorial has since been used regularly for patriotic events. In 1961, the Maryland-National Capital Park and Planning Commission acquired the memorial and the land where it sits, but the American Legion retained the right to use the memorial for patriotic events. The memorial has been maintained with public funds since the commission took possession of the memorial. In 2012, a group of local residents filed a lawsuit arguing the memorial violates the Constitution’s Establishment Clause. The case ultimately made its way to the Supreme Court.

For context, in 1971, the Supreme Court established the “Lemon test” in Lemon v. Kurtzman. Under the Lemon test which was intended to determine whether a governmental practice violates the Establishment Clause, a court analyzes a governmental practice’s constitutionality based by reviewing whether: (1) the practice has a secular purpose, (2) the practice’s principal effect advances or inhibits religion, and (3) the practice creates an excessive government entanglement with religion. Over time, various members of the Court, past and present, have criticized the Lemon test.

In his opinion in American Legion, Justice Alito declined to apply the Lemon test to the instant case, reasoning that although the cross is historically a Christian symbol and continues to have that meaning today, it has become secular in other contexts. As such, in this instance, the cross’ status as a “central symbol” of World War I explains the choice to use a cross as the memorial. Justice Alito further observed that the Lemon test attempted, but failed, to “bring order and predictability to Establishment Clause decision making.” In reaching this conclusion, the Court noted that “retaining established, religiously expressive monuments” was different than creating new ones, primarily because: established, religiously expressive monuments are often old, and it is difficult to determine the monument’s original intent; over time, the purposes and intent associated with a particular monument increase or, even if the monument was originally associated with religion, the passage of time diminishes that sentiment and the monument is retained for its historical significance; the message of a monument may evolve; and when the passage of time gives a particular monument familiarity, the removal of the monument may not appear neutral.

The Court also found that the memorial clearly had, at least, the secular purpose of memorializing the fallen, which also became important from a historical perspective. The memorial reminds local residents of the heroism of area soldiers. The Court also noted there is no evidence that Jewish soldiers were either “deliberately left off the list on the memorial” or “included on the Cross against the wishes of their families.”

In Justice Breyer’s separate concurring opinion, joined by Justice Kagan, he concluded that the most important consideration in each case is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.” Justice Breyer’s words could potentially have the effect of narrowing the impact of the decision by making it clear that these cases must be decided on a case-by-case basis.

A majority of the Court seems to agree that the Lemon test’s applicability to all Establishment Clause cases is no longer (and has not been) an absolute. The Court also made clear that the Lemon test does not fit well with cases involving long-established, religiously expressive monuments.

Local governments should take note of this opinion as it will have an impact on what type of religiously-themed monuments are allowable under the Establishment Clause and whether any existing religiously expressive monuments are in violation. Under American Legion, it appears monuments which are established, have assumed a role in history and/or society beyond religious symbolism, and provide some sort of community function aside from religion, are more likely to be allowed under the Establishment Clause.

For more information about the American Legion case, the Establishment Clause, or other constitutional questions common to governmental entities, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

©2019 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.

Appellate Court Addresses Evidentiary Issue Impacting Burgeoning Field Of Child Abuse Litigation Against Public Entities

July 2019
Number 32

In D.Z v. Los Angeles Unified School District, the California Court of Appeal clarified that California laws governing the evidence offered at trial require that courts use a two-step inquiry for all such evidence: First, determine the relevance of the evidence, and second, determine whether the court should exercise its discretion to exclude such evidence. In D.Z., such inquiry was not applied by the trial court when it determined to exclude all evidence that did not involve physical touching regarding a high school teacher alleged to have sexually abused the student plaintiff.

Background

Appellant D.Z. filed a lawsuit alleging negligence by Los Angeles Unified School District, her alleged teacher abuser, and other district employees, as well as a claim against the district under the theory of respondeat superior (a doctrine which, generally speaking, permits employer liability for an employee’s negligent actions or omissions that occur within the scope of an employee’s employment). D.Z.’s negligence claims included the allegation that the district failed properly to train and supervise relevant employees related to a claim that one of her school teachers sexually abused her. D.Z. further alleged that the district knew or should have known of the danger posed by the teacher, and the district’s failure to respond appropriately to that knowledge resulted in harm to her.

As trial approached, there were numerous witnesses prepared to testify on behalf of D.Z. regarding past misconduct by the teacher and the district’s knowledge of such conduct. However, prior to trial, the trial court determined, relying on Evidence Code section 352, to exclude all evidence of the teacher’s alleged misconduct, other than evidence relating to touching of students. The trial court’s approach amounted to a bright line exclusion of all evidence of conduct other than physical touching, and excluded evidence that was relevant to appellant’s claim, including prior reports made to the school, statements made by the teacher offering female students a ride home, and other statements regarding the female anatomy made to and in front of other female students by the teacher. Also excluded were details regarding a Suspected Child Abuse Report prepared and investigated in response to the teacher’s comments.

At the close of trial, the jury found in favor of the district. D.Z. appealed.

The Appellate Court’s Decision

The Court of Appeal disagreed with the trial court and concluded that because the trial court drew a bright line in excluding all evidence of the teacher’s conduct other than physical touching, it arbitrarily excluded evidence that was relevant to D.Z.’s claims.

The Court of Appeal found that under Evidence Code section 352, evidence relevant to prove any element of the underlying cause of action could be admissible. The trial court incorrectly concluded that any evidence other than of physical touching was irrelevant. As a result, the trial court never made it to the second step of the analysis to analyze countervailing considerations of undue prejudice, confusion, or undue consumption of time in determining whether to exercise its discretion to exclude evidence.

The Court of Appeal also determined that the erroneous exclusion of relevant evidence prejudiced D.Z. The evidence excluded included a crude comment made by the teacher regarding the size of a student’s breasts, and the teacher’s inappropriate questions to students about their boyfriends and sexual experiences. Such comments were said to have been reported to the district prior to D.Z.’s first report to the school principal regarding the teacher’s conduct, and were seen as crucial to D.Z.’s argument that the district knew or should have known the risk that the teacher would commit sexual abuse of a student.

The Court of Appeal also determined that the exclusion of non-touching evidence impacted D.Z.’s ability to offer otherwise admissible evidence of prior complaints. This also led to confusion amongst witnesses when asked to discuss complaints of touching only, and to omit discussion of inappropriate comments.

Ultimately, the Court of Appeal reversed the judgment and remanded the matter for a new trial.

Takeaway

The Court of Appeal’s opinion is likely to be relied upon by plaintiffs’ attorneys to seek to introduce at trial a broader spectrum of evidence supporting claims of negligence brought against school districts in the child abuse context. Correspondingly, the action or inaction of a district in relation to an employee alleged to have abused a student may impact the relevant evidence potentially admissible at trial. This underscores the importance of school districts’ prompt and thorough handling of complaints received regarding their employees’ alleged inappropriate behavior. Upon receipt of such complaints, districts should not only document the complaint, but also the remediation and reasonable steps taken to protect students and ensure that the employee’s behavior cannot recur.

If you would like more information about this case, or have any questions related to complaints and investigations, student safety, employee training, or employee discipline, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

©2019 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.

Know Your Role, Know Your Risk

June 2019
Number 28

A Civic Center Act provision that allocates liability between a school district and the users of school facilities means what it says, according to a recent decision by the California Court of Appeal. In Grossman v. Santa Monica-Malibu Unified School District, the court found the district was not liable for injuries suffered by a parent-attendee at a carnival held by a booster group at one of the district’s schools. The court also highlighted the statute’s intent that school districts and users of school facilities bear their own costs in insuring against risk and liability resulting from use of those facilities.

Facilities Use and Liability Under the Civic Center Act

Education Code section 38130 et seq., also known as the Civic Center Act, requires school districts to allow community groups to use district-owned facilities under certain conditions and allocates liability between the school district and the user of those facilities. Under Education Code section 38134(i)(1), “an entity using school facilities or grounds . . . is liable for an injury resulting from the negligence of that entity during the use of the school facilities or grounds,” while a school district “is liable for an injury resulting from the negligence of the school district in the ownership and maintenance of the school facilities or grounds.” The same section also requires school districts and users to “each bear the cost of insuring against its respective risks,” as well as the cost of defense for “claims arising from those risks.”

A school district’s liability for “ownership and maintenance” of its facilities and grounds only arises when the district would be liable under Government Code section 835 for “a dangerous condition of public property.” That form of liability arises from (1) negligent acts of a school district employee, or (2) notice of the dangerous condition with time to mitigate the danger.

The Grossman Case

In Grossman, the school district approved a booster group’s plans for a carnival on school grounds, but did not otherwise involve itself in the planning, set up, or oversight of the carnival. At the event, the plaintiff, a carnival attendee, was injured when an inflatable slide collapsed and he fell over 20 feet onto the concrete below. Similar slides were used at prior carnivals without incident.

The plaintiff sued the district, the booster group, and party rental and event companies for negligence. The plaintiff alleged that the slide was improperly set up, and was not secured to the ground with stakes. The plaintiff further alleged that the district did not inspect the slide or make sure that the operators properly assembled the slide.

The court ruled that the negligent set-up and operation of the inflatable slide, rather than any dangerous condition of the district’s property, was the cause of the plaintiff’s injuries. The slide was not a condition of the school grounds because it was a temporary feature that was removed after the event. Moreover, the district did not have notice of any purported dangerous condition because similar slides had been used at the booster group’s carnival in prior years without incident, and no complaints were made about the slide being improperly set up before the incident. Because the plaintiff’s claim was based on negligent set-up and operation of the slide, and not on a dangerous condition of the property, the court held that the district could not be liable for negligence under the Civic Center Act.

In its ruling, the court discussed the legislative history of the Civic Center Act’s liability apportionment statute. In particular, the court noted objections by booster groups and similar organizations to substantial insurance coverage and indemnification obligations required by school districts for use of facilities under the Civic Center Act. The legislation provided that such costs were considered costs of maintenance and management that should be borne by the property owner, rather than the user, however, the legislative history underscored the Legislature’s intent that the Civic Center Act not broaden a school district’s liability beyond that narrow scope. The court emphasizes that the liability apportionment statute requires each party bear its own costs associated with protecting against liability.

Takeaways

The Grossman case serves as a good reminder that liability is apportioned based on a school district or user’s respective role, as are the costs to protect against that liability, and while a school district cannot shift its statutory liability to facility users, it also cannot be held liable for injuries resulting from the user’s negligence, even if the incident occurred on school grounds.

For additional information regarding the Civic Center Act or facilities use and liability, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

Wesley L. Carlson

Associate

©2019 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.

Letter Saves City From Potential Brown Act Violations

June 2019
Number 27

Sometimes public entities stumble despite their best efforts to dutifully comply with the Brown Act. Fortunately, the Brown Act allows these entities to fix certain violations by identifying the problem and promising never to do it again.

Public entities faced with allegations of Brown Act violations can look to TransparentGov Novato v. City of Novato as a guide to avoid ensuing litigation.

TransparentGov Novato v. City of Novato

In TransparentGov Novato, a group of city residents filed a lawsuit against the City of Novato. Before filing suit, the group had sent a letter to the City alleging a Brown Act violation after councilmembers discussed a controversial project which was not on the agenda, and subsequently voted to establish a subcommittee to consider the project at a future meeting. In a responding letter, the City promised that going forward it would only create subcommittees if the item is on an agenda. The City also amended its own policy manual requiring all requests for future agenda items to be in writing. TransparentGov Novato filed suit after the City issued the letter and amended its policy.

In affirming the trial court’s decision in favor of the City, the Court of Appeal found that the underlying basis for the lawsuit had been resolved because the City had amended its policy and “provided an ‘unconditional commitment to cease, desist from, and not repeat the [allegedly wrongful] past action.'” The court was persuaded by the unequivocal nature of the City’s new policy to support its conclusion that there was “no reasonable basis to believe that [the] past action would be repeated.” The court acknowledged that while policy changes do not automatically invalidate pending Brown Act litigation, the policy change in this case was adopted before TransparentGov Novato filed suit. The timing of the adoption convinced the court that it was less likely that the City would repeat the alleged violation. The court affirmed the trial court’s judgment and awarded the City of Novato its costs on appeal.

Takeaways

The TransparentGov Novato case emphasizes the fact that the Brown Act requires courts to dismiss lawsuits alleging Brown Act violations when public entities provide an “unconditional commitment” to stop and not repeat the allegedly wrongful past action. (Gov. Code, § 54960.2, subds. (c)(1) & (3).) A letter by itself does not necessarily guarantee that a court will determine that the public entity provided an “unconditional commitment.” Actions speak louder than words, and courts will take the public entity’s other actions into consideration before making a determination.

Public entities already facing viable allegations of Brown Act violations may want to consider adopting or changing their policies in a manner that unequivocally negates the prospect that the alleged violation will reoccur. If the public entity determines that a particular allegation is viable and decides to amend or adopt its policy, it should do so before a lawsuit is filed, if possible.

If you have any questions about TransparentGov Novato v. City of Novato, or the Brown 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 subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

Tina C. Mirzazadeh

Associate

©2019 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.