In the case of Aarefah Mosavi v. Mt. San Antonio College, et. al., bearing United States District Court Case No. 2:15-cv-04147, handled by attorneys Martin L. Carpenter and Joseph A. Gordon (August 2018), CR&D obtained a defense verdict in a federal jury trial. The case involved a female Muslim student-employee who alleged work place sexual and religious discrimination, and sexual assault by her male co-worker. Congratulations to Mr. Carpenter and Mr. Gordon on a job well done!
Author: Carpenter, Rothans & Dumont
Ninth Circuit Affirms Dismissal of Title IX Lawsuit
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
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.
May I Have Your Attention Please?
Getting the attention of the Court of Appeal with your writ petition is a tough proposition. Among all of the “urgent” and critically important matters that the Court of Appeal is undoubtedly confronted with, what are the chances that they will listen to you? The answer to that question is, of course, somewhat inextricably tethered to the facts alone. Some issues and some cases simply do not have the inherent sense of urgency than others.
But the question often arises as to how to stand out, and how to craft a writ position that rises above the fray. For starters, you need to have a compelling introduction. You can be assured that your writ petition will rise and fall on the table of contents alone, if not solely on the first page of the petition. The over-worked writ attorney needs to know (a) why this case is important, (b) what the issue and procedural posture is, and (c) why there is an emergency need to hear this matter now, as opposed to during the course of a normal appeal.
For this reason, the issue of irreparable injury is huge. Will the court’s discovery order cause an irreversible breach of the attorney-client privilege? Will the injunctive relief granted by the trial court cause a structure to be torn down, unless the Court of Appeal intervenes? Are the public policy stakes so high that balking at the writ petition would frustrate the interests of justice?
These are the types of questions that typify the kind of strenuous urgency that has to be articulated within the fabric of your writ petition. Distaste with the Court’s reasoning, or an intellectual dispute over a case is not going to be enough. Often times, the best practice in assessing the “need” to file a writ petition in the first place is to take a step back and ask what the stakes are. What are the immediate, and long term, ramifications of this ruling? Taking a sober approach to self-analysis can assist in weeding-out the pursuit of writ petitions that are likely to have no traction to begin with.
Some important considerations:
1. Can you articulate the legal urgency and basis in less than two sentences?
2. Is this an issue that requires (not desires) immediate intervention?
3. Is this an issue that can be raised in a downstream appeal?
Answers to one, or all, of these key questions will assist in focusing your strategy, and will enable you to better determine whether the Court of Appeal will listen to you in the first place.
Justin Sarno is an appellate practitioner at CR&D and has been defending public agencies and public employees for his entire career.
Judge Oki Dismisses Lawsuit Against Los Altos High School Baseball Coach For Benching A Player
On January 11, 2018, Judge Dan T. Oki in Pomona dismissed a lawsuit brought by a student and his family, alleging that their son did not receive sufficient playing time on the Hacienda La Puente High School baseball team. The civil complaint alleged causes of action for negligence on behalf of the parents of the young student, as well as wide ranging claims for negligent hiring and threats, intimidation or coercion against the school district under the Bane Civil Rights Act (Civ. Code, sec. 52.1).
Judge Oki sustained the defendants’ demurrer to the plaintiffs’ complaint without leave to amend. The case was handled by Justin Reade Sarno and Louis R. Dumont.
Click here for Pasadena Star News Article.
Summary Judgment Granted In Tragic Santa Ana Triple Fatality
On December 29, 2017, Judge Glenn R. Salter of the Orange County Superior Court dismissed a civil lawsuit brought on behalf of the families of three young girls who were tragically struck and killed in a crosswalk at the intersection of Old Grand Street and Fairhaven Avenue on Halloween evening, 2014. The three girls were trick or treating in the City of Santa Ana, when motorist Jaquinn Bell struck them at approximately 65-70 miles per hours in the middle of a crosswalk. Bell fled the scene and took the Santa Ana Police Department on a three day manhunt before he was ultimately apprehended. Bell was convicted and is now serving time in a California state prison.
The families of the three girls sued the City of Santa, alleging a dangerous condition of public property at the intersection of Old Grand Street and Fairhaven Avenue. Plaintiffs’ allegations, in their lawsuit filed by attorney John Montevideo, Esq., ranged from the “diagonal” nature of allegedly faded crosswalk markings to inadequate lighting in the area in front of Fairhaven Elementary School. In response to the City’s motion for summary judgment, Judge Salter ruled that plaintiffs failed to provide any evidence to support the allegations in the complaint that there are physical deficiencies in the area of the crosswalk. Furthermore, there was no evidence of any accident history at the location. Summary judgment was granted in favor of the City of Santa Ana. The case was handled by attorney Justin Reade Sarno and Steven J. Rothans.
For more information about this tragic and unfortunate incident, as well as the City of Santa Ana’s outreach efforts to the community in response to this tragedy, see the following links:
Demurrer Sustained Without Leave in Suspected Child Abuse Case: City of Huntington Park
On October 20, 2017, the Honorable Lori Ann Fournier of the Los Angeles Superior Court (Norwalk Courthouse) sustained Defendant, City of Huntington Park’s demurrer to a second amended complaint without leave to amend, in a case in which a parent of a deceased one year old child sued the City of Huntington Park for failing to suspect and prevent against child abuse. Alvin Lyles, Jr. v. City of Huntington Park, L.A. Sup. Ct. Case No. BC616892. Tragically, on February 17, 2015, 18 month old infant Majesty Lyles was killed as a result of alleged child abuse in his home.
Decedent’s father, Alvin Lyles, Jr., filed a civil lawsuit against the City of Huntington Park, alleging negligence on the part of the police department, as well as violation of the Child Abuse Neglect and Reporting Act (“CANRA”), codified at Penal Code sections 11164 to 11174.3. Specifically, plaintiff alleged that police were summoned to the residence on numerous prior occasions as a result of domestic disturbance calls involving the infant’s mother and boyfriend, and that the police knew or should have known about the existence of child abuse under the circumstances.
The Court sustained defendant’s demurrer without leave to amend on the basis of Government Code section 845 (public entity is not liable for its failure to provide police protection service, or sufficient police protection service) and 846 (public entity is not liable for failure to make an arrest or failure to retain an arrested person in custody), citing also Hartzler v. City of San Jose (1975) 48 Cal.App.3d 6, 10, Williams v. State of California (1963) 34 Cal.3d 18, 25, Government Code sections 818.2 and 821.
The case was handled by Justin Reade Sarno, and Steven J. Rothans.
CRDLaw Obtains Defense Verdict For City of West Hollywood
NAME OF CASE:
Michelle Rex v. City of West Hollywood
CASE NO.:
BC615534
VENUE:
Los Angeles County Superior Court – Central District
TRIAL JUDGE:
L.A. County Superior Court Judge Mark Mooney
ATTORNEYS:
Plaintiff:
Mark T. Quigley, Esq.
GREENE, BROILLET & WHEELER
100 Wilshire Blvd., 21st Floor
Santa Monica, CA 90407-2131
(310) 576-1200
Jana Moser, Esq.
RUSHOVICH & MEHTANI
5900 Wilshire Blvd., Suite 2600
Los Angeles, CA 90036-5013
Defendant:
Jill Williams, Esq.
Steven J. Rothans, Esq.
CARPENTER, ROTHANS & DUMONT
500 S. Grand Avenue, 19th Floor
Los Angeles, CA 90071
(213) 228-0400
FACTS:
Plaintiff Michelle Rex (DOB: 04/04/74) alleged that her position as a “Council Deputy” was eliminated at the City of West Hollywood based on her involvement in reporting unlawful conduct at City Hall (whistle-blowing). Ms. Rex argued that she had reported the ongoing sexual harassment of a male colleague by a male Councilmember over a period of more than 2 years. Moreover, she had reported unlawful campaign activity (electioneering) by another colleague to her Councilmember. Further, she participated in the City’s investigation into the allegations of sexual harassment, and corroborated the sexual harassment during her interview. Ms. Rex contended that only three months after being interviewed by the City’s investigator, her position — along with that of her colleague who had been sexually harassed — was eliminated.
DAMAGES:
Plaintiff sought approximately $280,000 in past economic damages, and between $750,000 and $850,000 in future economic damages. Additionally, Ms. Rex requested unspecified non-economic damages for her worry, fear, embarrassment, humiliation, emotional distress and physical manifestations, including vomiting.
EXPERTS:
Plaintiff called Dr. Peter Formuzis (economist) of Santa Ana, who had calculated the past and future loss of earnings calculations.
TRIAL LENGTH:
11 Days
DELIBERATIONS:
7 Hours
VERDICT:
10-2 Defense Verdict
(Jury concluded that although there was evidence of retaliation, the City had a legitimate, non-retaliatory business reason to eliminate the plaintiff’s position as Council Deputy)
See the following article posted in the Los Angeles Times for further details:
http://www.latimes.com/local/lanow/la-me-ln-weho-duran-lawsuit-20170519-story.html
Public & Private Entity Defense
Our firm represents some of the largest cities, school districts, and agencies in the state of California in cases involving catastrophic injuries. Whether in the context of civil rights, police practices liability, dangerous condition of public property, product defects, or employment discrimination, CR&D has the resources and commitment to defend against the most vigorous of lawsuits. Please contact us now if your municipality or entity is in need of an economical but aggressive defense.
Summary Judgment Granted In Favor of Fountain Valley in Bean Bag Force Action
On September 27, 2016, Judge John Gastelum of the Orange County Superior Court granted summary judgment in favor of the Defendant City of Fountain Valley and two of its peace officers in the matter of Roe v. City of Fountain Valley, et al., Case No. 30-2015-00773657-CU-CR-CJC. In this civil rights action, plaintiff asserted causes of action under Civil Code § 52.1 (“Bane Act”) and 42 U.S.C. section 1983 as well as causes of action for negligence and assault and battery, claiming that officers from the Fountain Valley Police Department committed acts of “excessive force” when a split-second decision was made to deploy two less lethal bean bag rounds in order to de-escalate a potentially deadly situation. Finding that the undisputed facts demonstrated that the officer’s response deploying two less-lethal bean bag rounds was reasonable to control a rapidly evolving and escalating situation, the court entered summary judgment in favor of the City of Fountain Valley and its peace officers. Briefing and oral argument handled by John A. Rundell.