Month: April 2018

Ninth Circuit Affirms Dismissal of Title IX Lawsuit

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On April 20, 2018, the Ninth Circuit Court of Appeals affirmed Judge Gonzalo P. Curiel’s grant of summary judgment in favor of the Brawley Elementary School District in the lawsuit entitled Anyssa Sanchez v. Brawley Elementary School District, Case No. 16-55892.

In this civil case, plaintiff, Anyssa Sanchez, sued the school district arising out of a single incident of alleged peer-on-peer sexual harassment in which she claims she was inappropriately touched by another student in a lunch line and then responded by using physical force against the offending student (i.e., kicking him in the groin).

After initially accepting a one day suspension from school for her involvement in the incident, plaintiff switched gears and sued the school district under Title IX, alleging that she had been denied access to educational opportunities and/or benefits. Plaintiff further claimed that the school district knew about inappropriate alleged games involving sexual harassment among its students.

Judge Curiel dismissed the lawsuit on a motion for summary judgment, concluding that plaintiff’s claims had no evidentiary merit. Agreeing with Judge Curiel and finding that the alleged harassment was not “so severe, pervasive, and objectively offensive that it effectively barred Sanchez’s access to an educational opportunity or benefit,” the Ninth Circuit affirmed dismissal of the lawsuit as a matter of law. The matter was argued on summary judgment and briefed before the Ninth Circuit Court of Appeals by Justin Reade Sarno.

CCP 1038: Municipal Considerations

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If you are a public entity and find yourself on the victorious end of a summary judgment motion, motion for directed verdict, motion for judgment (under Section 631.8), or non-suit, then consider whether the plaintiff’s lawsuit, or co-defendant’s cross complaint, against the entity was brought “with reasonable cause,” and “in the good faith belief that there was a justifiable controversy.”  Civ. Proc. Code, sec. 1038. If it was not, then the victorious public entity may be entitled to recovery of “defense costs reasonably and necessarily incurred” under section 1038.  Id.

This is both an important tool, and strategic consideration, for public entities. Specifically, “defense costs,” as defined under section 1038, encompasses “reasonable attorneys’ fees, expert witness fees, the expense of services of experts, advisers, and consultants in the defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding.”  Id.

In the recent case of Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, the Third Appellate District found in favor of a public entity on a motion for summary judgment relative to a promissory estoppel claim, and then imposed the recovery of fees and costs under section 1038.  The court specified that “[s]ection 1038 applies not only to tort actions initiated in bad faith, but also to actions initiated in good faith but maintained in bad faith and without reasonable cause.” (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1585-1586.)  Analyzing the claims presented, the Court agreed with the trial court that “no reasonable attorney would have thought the claims were legally tenable.”  Ponte, 14 Cal.App.5th at p. 560. Furthermore, the Court of Appeal found that the plaintiff was also responsible for paying the County’s costs on appeal.  (Id.; see Cal. Rules Ct., Rule 8.278(a).)

Ultimately, the Ponte case serves as a sobering reminder to plaintiffs that their claims against a public entity must be meritorious.  Furthermore, it serves as an important tool for public entities to consider when seeking an award of fees and costs in the trial court pursuant to Code of Civil Procedure section 1038 and, then, costs on appeal pursuant to California Rules of Court, Rule 8.278(a).

Justin Sarno is an appellate practitioner at CR&D and has been defending public agencies and public employees for his entire career.