Category: News

CRD Operations during COVID-19

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As we continue to monitor the COVID-19 outbreak closely, the health and well-being of our staff, clients, colleagues and their families are of the utmost importance to us. We have been proactively communicating with our staff and clients about steps to take to limit the spread of Covid-19 and have asked anyone in our office who is not feeling well to work from home. We have also ceased holding meetings in our office and have encouraged our clients to do the same during this very challenging time.

If circumstances dictate that we close our offices, rest assured that we have a business continuity plan in place that will enable us to provide you with uninterrupted service and all of us at Carpenter Rothans & Dumont LLP will work remotely in order to be responsive to your needs throughout an office closure.

For over 26 years, CRD has been committed to providing our clients with the highest level of professional representation.  Together, we can and will get through these challenging times.

Summary Judgment Granted in Favor of the City of Santa Ana in Federal Civil Rights Case

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The United States District Court for the Central District of California issued an order granting summary judgment in favor of the City of Santa Ana and Santa Ana Police Department Officer Tyler Liggett in a federal civil rights action entitled A.B., et al. v. City of Santa Ana, et al.  The case arose out of an incident wherein Officer Liggett used deadly force against a suspect who was armed with a knife and ignored repeated commands to drop the weapon.  The decedent’s family brought suit against the City of Santa Ana and Officer Liggett under the Fourth and Fourteenth Amendments alleging that the deadly shooting was unreasonable and amounted to excessive force.  The federal district court found that the shooting was reasonable under the circumstances and dismissed the case with prejudice before trial.  The City of Santa Ana was represented by Steven J. Rothans, and Mark D. Rutter.

Voluntary Dismissal in Wrongful Death Case for the County of Los Angeles

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The firm recently obtained a voluntary dismissal in a wrongful death case where the plaintiff alleged negligence and claims under 42 U.S.C. section 1983. After a demurrer was sustained, Mr. Wells consulted with plaintiff’s counsel, who, as a result of the consultation, agreed to dismiss all claims against the County of Los Angeles with prejudice.  The County was represented by Edward Wells.

Ninth Circuit Affirms Summary Judgment in Favor of Los Angeles County in Civil Rights Case

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The Ninth Circuit issued a memorandum decision affirming summary judgment in favor of Los Angeles County Sheriff’s Department Commander Daniel Dyer in a federal civil rights action entitled Claudell Hatter v. Daniel Dyer.   In the action, Claudell Hatter asserted a single claim for violation of the Eighth and Fourteenth Amendments based upon the theory that Commander Dyer was deliberately indifferent to unsanitary conditions at the Los Angeles County Men’s Central Jail facility, which allegedly posed a serious risk to Mr. Hatter’s health during the time he was incarcerated there.  The Ninth Circuit found that Mr. Hatter failed to support his legal claim with sufficient evidence on summary judgment and, as such, Commander Dyer was entitled to judgment as a matter of law.  The County of Los Angeles was represented by Jill Williams.

CRD Obtains Defense Verdict in Federal District Court

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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!

Ninth Circuit Affirms Summary Judgment in Favor of the City of Upland in Civil Rights Case

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The Ninth Circuit issued a memorandum decision affirming summary judgment in favor of the City of Upland and Upland Police Department Officer Lavell Brown in a federal civil rights action entitled Harshod Mehta, et al. v. City of Upland, et al.  The case arose out of allegations that Officer Brown violated the Fourth Amendment by using excessive force against Harshod Mehta while removing him from his vehicle in the aftermath of a high speed police pursuit of a third party.  The Ninth Circuit held that Officer Brown’s actions did not constitute excessive force and, even if they did, Officer Brown was entitled to qualified immunity.  The City of Upland was represented by Jill Williams.

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.

 

May I Have Your Attention Please?

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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

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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.