Courtesy of James R. Touchstone, Esq.


  1. Reasonable factfinder could conclude that police officer violated plaintiff’s due process rights by obtaining court order to destroy plaintiff’s firearms without giving him notice.

Wright v. Beck, 981 F.3d 719 (9th Cir. 2020)

Facts: Wayne Wright spent decades acquiring a large collection of firearms, which, he claimed, was worth over half a million dollars. The Los Angeles Police Department (“LAPD”) obtained a search warrant from the Los Angeles County Superior Court (the “Los Angeles Court”) and seized more than 400 firearms from Wright’s residence and storage unit.

In August 2006, Wright pled guilty to one count of possession of an unregistered assault weapon. The plea agreement, reduced to a court order imposing probation conditions, stated that Wright could not possess any firearms for thirty-six months. Under the terms of the agreement, the firearms would be destroyed or sold unless Wright could provide proof of ownership to the LAPD as required by its policy regarding the return of seized guns. LAPD policy provided that Wright could prove he owned the firearms by either showing they were registered in his name or through a sworn declaration, sales receipt, or other proof of ownership, unless the LAPD had probable cause to disbelieve such evidence.

A few months after his August 2006 plea, Wright began his efforts to recover the firearms by filing a motion for his seized property, asserting he owned the firearms lawfully. The LAPD opposed release of the great majority of the firearms. After completing his term of probation, Wright spent the next seven years negotiating off and on with LAPD Detective James Edwards and others about the kinds of records that Wright would need to furnish to obtain his firearms. In May 2010, the LAPD was provided with copies of receipts for ninety-four firearms and were informed of the difficulty in obtaining records for the others because Wright had spent decades acquiring them. The LAPD was not forthcoming in response to Wright and his counsel’s subsequent inquiries over the next several months.

In August 2011, Wright filed another motion in the Ventura Court for return of his firearms. LAPD again opposed release of the great majority of the remaining firearms. The LAPD also moved the Ventura Court for an order to destroy the remaining firearms. In reply, Wright filed a declaration asserting he owned all but forty of the seized firearms and attached the ninety-four receipts he had previously provided to the LAPD. At a September 2011 hearing, the LAPD stated that it had delayed reviewing Wright’s records and had not yet reviewed his receipts or his sworn declaration, explaining it needed additional time to review the records to determine whether Wright had provided reasonable proof of ownership.

In an October 2011 written order, the court ordered the LAPD to release twenty-six firearms that the Department had agreed belonged to Wright. However, the court did not rule on the remaining firearms. Instead, the court instructed the parties to meet and confer to determine whether the ownership status of the remaining firearms could be resolved informally and, if not, to return to court. The parties negotiated via email into March 2012, with Wright’s counsel receiving assurances that the LAPD was “making progress” working with Wright’s case.

In April 2012, the officers had completed the review process and determined that Wright owned eighty of the ninety-four firearms for which Wright had provided receipts. Yet the officers did not inform Wright that the review process was completed, that the officers did not believe Wright’s sworn declaration, or that it was determined Wright did not prove he owned the remaining firearms. Wright assumed in the interim that the review process was still continuing, that the negotiating stage was ongoing, and that the Ventura Court’s order, requiring the parties to return to court if informal negotiations had failed, still controlled.

Instead, in December 2013, Edwards applied ex parte to the Los Angeles County Superior Court for an order permitting destruction of the remaining firearms. Edwards did not give Wright notice that he intended to seek such an order. Thus, Wright did not have an opportunity to contest Edwards’ application. The Los Angeles court granted Edwards’ application and issued the destruction order. In June 2014, the LAPD destroyed the remaining 300-plus firearms by smelting them.

Wright sued Edwards, other individuals including LAPD Chief Charles L. Beck (“Beck”), and the City of Los Angeles (the “City”) (collectively, “Defendants”) in federal court. Wright alleged, among other claims: (1) violations of his Fourth and Fourteenth Amendment rights under 42 U.S.C. section 1983 against all defendants; and (2) a Monell[1] claim against Beck and the City for failure to train. Defendants moved to dismiss, arguing that the Ventura Court impliedly ruled in its September 2011 order that Wright had no possessory interest in the firearms. The District Court granted the motion. Wright appealed, and the Ninth Circuit Court of Appeals reversed, holding in a memorandum disposition that the District Court “grossly mischaracterized” the Ventura Court order to suggest that Wright had no possessory interest in the firearms.[2] The Court of Appeals reasoned that the Ventura Court left “the final resolution” of those guns “for another day.”[3]

On remand, Defendants moved for summary judgment on the merits of Wright’s Fourth and Fourteenth Amendment claims. The District Court granted the motion, concluding the individual named Defendants, even those sued in their official capacity, were entitled to qualified immunity. The District Court held in part that Wright’s due process rights were not violated because he was not entitled to notice that the LAPD sought the disposition order from the Los Angeles Court to destroy the firearms. Wright appealed. Because Wright could not prevail against the individual defendants, the District Court reasoned that Wright could not maintain his Monell failure-to-train claim against the municipal defendants as well. Wright appealed again to the Ninth Circuit.

Held: The Ninth Circuit Court of Appeals stated, “In determining whether an officer is entitled to qualified immunity, we employ a two-step test . . . .” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc). (1) The first step involves determining “whether the officer violated a plaintiff’s constitutional right . . . .” Id. The second step assesses “whether the constitutional right was ‘clearly established in light of the specific context of the case’ at the time of the events in question.” Id. (quoting Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). The second step requires a determination of “whether [the constitutional right’s] contours were sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. at 442 (quotation marks omitted). The Ninth Circuit considered whether Wright’s due process rights were violated and, if so, whether the law was clearly established at the time of the violation.

The Court observed that the Fourteenth Amendment guarantees that a state cannot “deprive any person of . . . property[] without due process of law.” U.S. Const., Amend. XIV. A primary guarantee of due process is that, before the government permanently deprives a person of a property interest, that person will receive—at a minimum—notice. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).[4]

The Ninth Circuit noted that since Mullane was issued, the Supreme Court has “adhered unwaveringly” to its pronouncements, frequently holding that inadequate attempts to provide notice violate due process.[5] The Court stated that outright failures to even attempt to provide notice violate due process,[6] and that even in cases after the government has lawfully seized property, reasonable notice must be provided prior to a final deprivation.[7] “If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.” Fuentes, 407 U.S. at 81. Moreover, due process is not satisfied simply because judges have facilitated the deprivation. (See Id.) The Ninth Circuit noted that California courts have also upheld the rule of requiring notice, both as due process principle and as a procedural rule.[8]

On appeal, Wright claimed that, without notice to Wright, Edwards sought an order from the Los Angeles Court granting permission to destroy Wright’s firearms. Wright alleged that Edwards sought this order while the parties were still informally resolving the ownership dispute, as encouraged by the Ventura Court. The subsequent destruction of Wright’s firearms constituted a permanent deprivation and underscored the need for notice. Defendants argued that the notice requirement was satisfied at the time the firearms were seized and that Wright was not entitled to any further notice thereafter.

The Ninth Circuit concluded that a reasonable jury could find a due process violation under the circumstances here because Wright was entitled to notice he did not get. Although the Court of Appeals did not identify a case with the exact factual situation involved here, the Court explained that an official may have “fair notice” that conduct is unlawful, “even without a body of relevant case law,” if the violation is so “obvious” that no reasonable official would have engaged in such behavior. Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). The Court concluded that in light of the precedent that did exist at the time that Edwards filed an ex parte application for permission to destroy Wright’s firearms, his actions fit within the “obvious” situation. See Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000). The Court stated that it “appears obvious to us, even without a case addressing identical facts, that a state actor cannot unilaterally seek to destroy one’s property without first providing the individual notice of the intent to do so.”

Moreover, the Court observed that unlike the mere general right to due process or the abstract right to be free from excessive force, the right to notice is a specific, concrete guarantee that a person will be informed of the government’s intent to deprive him or her of property before doing so. The Circuit Court added that Edwards was at the time seeking ex parte permission to destroy the firearms, a “permanent kind of deprivation[,]” making the failure to provide notice even more egregious than just a temporary one. Yet despite knowing that Wright had a pending claim of ownership, Edwards applied to the Los Angeles Court, without notice to Wright, for an order to destroy his property. Thus, the Court expressed “no doubt” that Edwards had fair notice that his conduct violated Wright’s due process right to notice, and therefore he was not entitled to qualified immunity. The Court held that a reasonable jury could conclude that Detective Edwards violated Wright’s due process rights when he applied for a destruction order without giving Wright notice.

Because the Ninth Circuit reversed the District Court’s grant of summary judgment on Wright’s due process claim, the Circuit Court also reversed the District Court’s grant of summary judgment on Wright’s failure-to-train Monell claim, which the District Court characterized as derivative of his due process and Fourth Amendment claims. The Ninth Circuit remanded for further proceedings consistent with its opinion.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 33, available at www.jones-mayer.com.

  1. Officer may search those areas of passenger compartment where officer reasonably expects that probationer could have stowed personal belongings or discarded items when aware of police activity.

People v. Maxwell, 58 Cal. App. 5th 546 (3rd Dist. 2020)

Facts: In December 2012, officers received an anonymous tip about the location of Christy Scarbrough, who had four outstanding arrest warrants and was on searchable probation.[9] The officers spotted Scarbrough in the passenger seat of a car, whose driver was defendant Anthony Paul Maxwell. After Scarbrough exited the car, an officer arrested her. Another officer spoke briefly to Maxwell, and noticed that Maxwell showed several signs of being a drug user. In talking to Maxwell, that officer learned that Scarbrough had left a pack of cigarettes in the car, that Maxwell had a “criminal history for robbery,” and that Maxwell had a knife in the car’s trunk.

Based on this information and Scarbrough’s searchable probation status, the officer ordered Maxwell out of his car and searched the car. During the search, the officer found multiple used hypodermic needles under the driver’s seat, a spoon with soot on its underside and brown residue on its inside, a digital scale, multiple cell phones, and several pieces of what the officer believed was black tar heroin. The officer arrested Maxwell based on the items in the car. Based in part on these facts, Maxwell was charged in December 2012 with possessing heroin with the intent to sell it and with possessing drug paraphernalia. These charges and Maxwell’s charges based on a separate search in September 2013, and one other offense, were later consolidated into a single case.

Before trial, Maxwell moved to suppress evidence obtained from the December 2012 search. Maxwell argued that the Scarbrough’s searchable probation status did not justify the search of his car and that officers lacked probable cause to conduct the search. The trial court denied the motion. A jury convicted Maxwell of unlawfully possessing methadone, possessing drug paraphernalia, and, on two occasions, possessing heroin with the intent to sell it. He was sentenced to 13 years in prison after the trial court considered his prior “strike” conviction, his prior prison term, and the fact that he committed one of the offenses while out on bail on another offense. Maxwell appealed.

Held: Maxwell contended that the searches were unreasonable and thus violated the Fourth Amendment. The California Third District Court of Appeal stated that the Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” without a warrant supported by probable cause that “particularly describe[es] the place to be searched, and the persons or things to be seized.” Courts “‘ha[ve] inferred that a warrant must [usually] be secured,’” “subject to a number of exceptions.” (Birchfield v. North Dakota (2016) 579 U.S. ___, ___ [195 L.Ed.2d 560, 575, 136 S. Ct. 2160].) One such exception is for searches of probationers who have consented in advance to warrantless searches. (People v. Woods (1999) 21 Cal.4th 668, 674.)

The Third District noted that although the California Supreme Court had not yet considered the scope of a vehicle search based on a passenger’s searchable probation status, the Supreme Court had considered the scope of a vehicle search in the context of a passenger’s parole status in People v. Schmitz (2012) 55 Cal.4th 909. In Schmitz, the Supreme Court concluded that an officer may search “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.” (Id. at p. 926.) The Third District considered whether the Schmitz Court’s holding should be extended to those on searchable probation.

The Third District first observed that “the state has a substantial interest in monitoring probationers to prevent and detect recidivism.” People v. Cervantes (4th Dist. 2017) 11 Cal.App.5th 860. Like parolees, probationers who have consented to be searched are “more likely to engage in criminal conduct than an ordinary member of the community” (United States v. Knights (2001) 534 U.S. 112, 121), “have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal” (id. at p. 120), and may be searched without a warrant. Second, the Court noted that “a driver has a reduced expectation of privacy with regard to an automobile,” and that expectation is “further diminished when he allows others to ride in his car, thus ceding some measure of privacy to them.” (Schmitz, supra, at p. 924.) The Court agreed with Schmitz in expressing that it was noteworthy that passengers in noncommercial cars typically have “ready access to areas in both the front and the back seats.” (Id. at p. 925.)

Taking these considerations together, the Third District found that it was appropriate to expand the Schmitz holding to those on searchable probation, and thus concluded that an officer may search “those areas of the passenger compartment where the officer reasonably expects that the [probationer] could have stowed personal belongings or discarded items when aware of police activity.” (Schmitz, supra, 55 Cal.4th at p. 913.) The Court explained that a narrower rule would otherwise allow “a [probation] passenger [to] frustrate a valid [probation] search simply by sitting in the front seat of the car and placing or discarding his belongings in the back. Imposing such an artificially narrow rule [would] frustrate[] the legitimate goals” in having probation search conditions. (Id. at p. 926.)

Here, Scarbrough was a probationer who had consented to be searched, Maxwell had stated that Scarbrough had left a pack of cigarettes in the car after Scarbrough exited, and the officer had searched the vehicle thereafter prompted by these factors. Extending Schmitz, the Court found the officer’s search was reasonable.

The Court of Appeal determined that the trial court also properly denied Maxwell’s motion to suppress evidence obtained from September 2013 searches of his person, car, and home, which were premised on a bail condition that was later found invalid, where the good-faith exception to the exclusionary rule applied, as the officer who conducted that search acted in good-faith reliance on Maxwell’s then-extant bail terms, and that reliance was objectively reasonable.

The Third District Court of Appeal accordingly affirmed, modifying the judgment to address a sentencing enhancement error unrelated to the main issue here.

  1. Fourth Amendment search occurs when officer physically inserts key into lock of vehicle for purpose of obtaining information.

United States v. Dixon, 2020 U.S. App. LEXIS 40827 (9th Cir. Dec. 31, 2020)

Facts: Howard Dixon, a felon serving a term of supervised release and subject to a warrantless, suspicionless search condition, was a suspect in a shooting that occurred in January 2018 in the Bayview District of San Francisco. Initially unaware that Dixon was subject to the suspicionless search condition, San Francisco Police Department (“SFPD”) Officer Eduard Ochoa began surveilling Dixon. Based on his observations, the officer believed that Dixon lived at the Oakdale Apartments in Bayview. Officer Ochoa noticed Dixon driving in the surrounding neighborhood during the daytime—twice in a black BMW and twice in a blue Honda minivan. He saw Dixon park the black BMW in the Oakdale Apartments’ parking lot five times, and park the blue Honda minivan in that lot two times.

In March 2018, Officer Ochoa learned that Dixon was under federal supervision and subject to the suspicionless search condition. Lacking conclusive information as to Dixon’s residence,[10] Officer Ochoa returned to the Oakdale apartment building to surveil the area with other SFPD officers. Officer Ochoa observed Dixon exit the building, re-enter it, and then exit again holding two garbage bags walking towards the blue Honda minivan in the parking lot. Officer Ochoa instructed officers to detain Dixon. Dixon dropped the garbage bags and a set of keys on the ground. Officer Ochoa used those keys to enter the apartment, where he discovered various illegal drugs and drug paraphernalia in a room identified as belonging to Dixon. Following the apartment search, officers transported Dixon to Bayview Station.

Before Dixon was transported to the station, Officer Ochoa began searching the blue Honda minivan, using one of the keys that Dixon had dropped to unlock the vehicle. Officer Ochoa discovered a black backpack containing a large bag of marijuana inside the trunk area. At the station, a further search of Dixon recovered twenty-one baggies containing cocaine, heroin, and methamphetamine.

Dixon was indicted for possession with intent to distribute heroin, cocaine, and methamphetamine. Dixon moved to suppress the evidence obtained from the apartment and vehicle searches as unconstitutional, and from the later stationhouse search as tainted by these previous searches. The District Court suppressed the evidence from the apartment search, but upheld the minivan search. The District Court reasoned that the insertion of the key into the minivan’s lock was not itself a search. Because the vehicle search was deemed constitutional, the District Court found that this intervening lawful search, which produced a large bag of marijuana, attenuated any taint from the apartment search. The District Court therefore declined to suppress the evidence found when police searched Dixon at Bayview Station. A jury convicted Dixon of the lesser-included offense of simple possession. The District Court sentenced Dixon to 21-months’ imprisonment. Dixon appealed.

Held: The Ninth Circuit Court of Appeals explained that “[t]he Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. However, individuals “subject to a warrantless, suspicionless search condition have ‘severely diminished expectations of privacy by virtue of their status alone.’” United States v. Cervantes, 859 F.3d 1175, 1182 (9th Cir. 2017) (quoting Samson v. California, 547 U.S. 843, 852 (2006)). However, the Court noted that in order to conduct a search of property pursuant to this condition, the individual subject to it must “exhibit[] a sufficiently strong connection to [the property in question] to demonstrate ‘control’ over it.” United States v. Korte, 918 F.3d 750, 754 (9th Cir. 2019) (quoting United States v. Grandberry, 730 F.3d 968, 980 (9th Cir. 2013).

Dixon’s supervised release included a condition that required that he “submit to a search of his person, residence, office, vehicle, or any property under his control . . . at any time with or without suspicion.” The Court of Appeals explained that before police could search Dixon’s blue Honda minivan without a warrant or probable cause, they had to have a sufficient basis to believe he owned or controlled that vehicle. The Court stated that police crossed that knowledge threshold only when they inserted the key that Dixon had dropped into the car lock, thereby confirming that he exercised control over the minivan.

The Court explained that it must determine whether inserting that key into the minivan’s lock was itself permissible under the Fourth Amendment. If it was not permissible, then considering that the District Court had ruled that the apartment search violated the Fourth Amendment, the officers would have lacked justification for the arrest and subsequent station house search. The lower court would thus have had to suppress the drugs found on Dixon’s person, and the government would have had no admissible drug evidence at trial.

The Ninth Circuit explained that to determine whether a Fourth Amendment violation occurred, two questions must be resolved: first, whether the government conduct amounted to a search within the meaning of the Fourth Amendment; and second, whether that search was reasonable.

The Ninth Circuit explained that that the Fourth Amendment protects not only reasonable expectations of privacy but also against physical intrusions by law enforcement onto property. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court reminded that the Fourth Amendment protects not only reasonable expectations of privacy but also against physical intrusions by law enforcement onto property.

Applying the Supreme Court’s Jones analysis, the Ninth Circuit held that a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information. The Ninth Circuit declared that the Circuit Court’s prior contrary decision in United States v. $109,179 in U.S. Currency, 228 F.3d 1080 (9th Cir. 2000), was “clearly irreconcilable” with the Supreme Court’s property-based Fourth Amendment jurisprudence in Jones and Florida v. Jardines, 569 U.S. 1 (2013).

Having concluded that the officer conducted a Fourth Amendment search, the Ninth Circuit turned to the reasonableness of the search. The Court held that before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle. The Court observed that Dixon had attested that the police initially confused his “sky blue” minivan with another minivan of the same color parked next to it, and that they also threatened to break into a nearby Audi. Neither of these other vehicles belonged to Dixon. The Court of Appeals declared that on the record before it, it was unclear whether Officer Ochoa had probable cause to believe that the particular vehicle into which he inserted the key was owned or controlled by Dixon.

The Ninth Circuit of Appeals accordingly vacated the District Court’s denial of Dixon’s motion to suppress evidence resulting from the vehicle search, and conditionally vacated the conviction and sentence for possession. The Court remanded the case for the District Court to conduct an evidentiary hearing and to rule on Dixon’s suppression motion in light of the Jones and Jardines principles.

  1. Applying 60-day limit to challenging erroneous parole supervision placement without providing notice violated defendant’s constitutional due process rights.

People v. Ruiz, 2020 Cal. App. LEXIS 1239 (4th Dist. Dec. 30, 2020)

Facts: Bryant Ruiz pleaded guilty to unlawful possession of brass knuckles and misdemeanor vandalism. He admitted an allegation the vandalism was done in association with and for the benefit of a street gang, and was sentenced to three years in state prison.

Ruiz was released from prison on parole supervision in April 2018. Ruiz was continued on parole without formal revocation seven times between April and the end of December 2018. In June 2019, the Department of Corrections and Rehabilitation (“CDCR”) filed a parole revocation petition alleging Ruiz had absconded parole supervision since January 2019. Ruiz’s appointed counsel for the parole revocation proceeding discovered that Ruiz’s crimes did not constitute a serious felony and, therefore, he should have been placed on post-release community supervision (“PRCS”) instead of under parole.

Ruiz filed a challenge to his parole jurisdiction and moved to dismiss the parole revocation proceeding on grounds that the Department of Parole lacked jurisdiction and that the application of Penal Code section 3000.08, subdivision (l), violated his constitutional rights of equal protection and due process. He asked the court to terminate parole supervision and order him to report to PRCS.

The trial court found it had jurisdiction to hear Ruiz’s motion, but denied Ruiz’s motion to dismiss. The trial court determined that a parolee, such as Ruiz, has the right to contest the validity of his type of supervision within the context of a parole violation hearing. Although the trial court noted that the parties agreed that Ruiz should have been placed on PRCS rather than parole, the trial court concluded that Section 3000.08(l) was not unconstitutionally vague and the application of the 60-day limit for challenging supervision placement did not violate due process. The trial court revoked Ruiz’s parole, reinstated it with the same terms and conditions, and ordered Ruiz to serve 100 days in custody as a sanction with credits of 93 days. Ruiz appealed.

Held: The California Fourth District Court of Appeal observed that although a trial court may not terminate parole as a sanction for violating the conditions of parole, it may transfer someone from parole supervision to PRCS when the CDCR has made a mistake in classifying the person. (People v. Johnson (4th Dist. 2020) 45 Cal.App.5th 379, 396.) “[T]he placement of an inmate on parole supervision rather than PRCS is not a discretionary decision. The law provides that unless the requirements for placement on parole are met, ‘all other offenders released from prison shall be placed on [PRCS].’ (Section 3000.08, subd. (b), italics added.)” (Johnson, supra, 45 Cal.App.5th at p. 400, fn. 14.)

The trial court had denied Ruiz’s challenge to his placement on parole as untimely based upon Section 3000.08(l), which provides: “Any person released to parole supervision pursuant to subdivision (a) shall, regardless of any subsequent determination that the person should have been released pursuant to subdivision (b), remain subject to subdivision (a) after having served 60 days under supervision pursuant to subdivision (a).” On appeal, Ruiz contended that the application of this statute to preclude his transfer to PRCS violated his due process rights because he was not provided notice of either his right to be released on PRCS or of the 60-day period in which to seek relief from his parole placement.

The Court of Appeal noted that individuals facing parole revocation are constitutionally entitled to certain minimum due process protections. (DeLeon, supra, 3 Cal.5th at pp. 644, 653, citing Morrissey v. Brewer (1972) 408 U.S. 471, 480.) “Engrained in our concept of Due Process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed.” (Lambert v. California (1957) 355 U.S. 225, 228.)

The Court observed that, as in this case and in Johnson, there is a risk the CDCR may mistakenly classify individuals and place them under parole supervision rather than PRCS. The Court declared that applying the 60-day limitation of Section 3000.08(l) to bar a challenge to a classification error without requiring notice of either the supervision classification or the ability to challenge the classification would result in deprivation of parolees’ conditional liberty. The Court noted the considerable differences in burdens on liberty between PRCS and parole supervision.

The Fourth District reminded that the CDCR mistakenly classified Ruiz as a serious felon and placed him under parole supervision rather than PRCS. The document the CDCR provided to Ruiz upon his release from prison informed him he could appeal the “special conditions of [his] parole.” It did not provide notice of why he was placed on parole rather than PRCS, that he was able to appeal his supervision classification, or that such an appeal must be initiated within the first 60 days of his supervision under Section 3000.08, subdivision (l).

Under these circumstances, the Fourth District Court of Appeal concluded that the application of Section 3000.08(l) to bar Ruiz’s challenge to his erroneous placement under parole supervision violated his constitutional right to due process. The Court accordingly reversed the order denying Ruiz’s motion to dismiss the petition for revocation of parole, and remanded with directions to the trial court to enter a new order granting the motion to dismiss and transferring Ruiz from parole supervision to PRCS.


Plaintiff demonstrated likelihood of success on its Free Exercise claim because Nevada Directive was not narrowly tailored to serve compelling interest of slowing spread of COVID-19.

Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228 (9th Cir. 2020)

Facts: In March 2020, Nevada Governor Steve Sisolak declared a state of emergency in Nevada due to the spread of COVID-19. He issued emergency directives aimed at limiting the spread of the virus, including Directive 021 (the “Directive”), which Governor Sisolak issued on May 28, 2020. The Directive “strongly encourage[s]” all Nevadans to stay at home “to the greatest extent possible,” and generally prohibits gatherings of more than fifty people “in any indoor or outdoor area[.]” The Directive specifies a multitude of settings (such as movie theaters, concerts, sporting events, art galleries, restaurants, and many others) subject to its strictures.

Calvary Chapel Dayton Valley (“Calvary”) challenged Section 11 of the Directive, which imposes a fifty-person cap on “indoor in-person services” at “houses of worship.” Calvary alleged that the Directive unconstitutionally burdens this religious expression in violation of the Free Exercise Clause of the First Amendment to the United States Constitution. Calvary also argued that the Directive is not neutral or generally applicable because it targets, discriminates against, and shows hostility toward houses of worship.

The District Court denied Calvary’s request for a preliminary injunction barring enforcement of the Directive against houses of worship, concluding that the church did not demonstrate a likelihood of success on its Free Exercise claim. The District Court found that the State treated similar secular activities and entities—including lectures, museums, movie theaters, trade and technical schools, nightclubs, and concerts—the same as or worse than church services. The District Court therefore concluded that the Directive was neutral and generally applicable. Calvary appealed on the merits to the Ninth Circuit Court of Appeals.

Held: On appeal, Calvary contended that Section 11 of the Directive is not neutral and generally applicable because it expressly treats at least six categories – casinos, restaurants and bars, amusement and theme parks, gyms and fitness centers, movie theaters, and mass protests – of secular assemblies better than it treats religious services. Calvary argued that the State had failed to demonstrate that it had a compelling interest, or that the Directive was narrowly tailored. The State argued in part that the Directive does not violate the Free Exercise Clause because it is a neutral and generally applicable law—it imposes “[s]imilar or more severe restrictions . . . to comparable secular gatherings.” (South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring).)

The Ninth Circuit Court of Appeals observed that “[t]he Free Exercise Clause of the First Amendment[11]. . . provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]’” Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 876-77 (1990) (internal citations and emphasis omitted). In determining whether a law prohibits the free exercise of religion, courts ask whether the law “is neutral and of general applicability.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S. at 879). If it is not neutral and generally applicable, the law must survive strict scrutiny review.

The Ninth Circuit explained that the United State Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo,   S. Ct.  , 208 L. Ed. 2d 206, 2020 WL 6948354 (2020) (per curiam) compelled the Court of Appeal’s decision here. In Roman Catholic Diocese, the Governor of New York issued an Executive Order in response to the spread of COVID-19 imposed restrictions on attendance at religious services in certain designated areas. The Supreme Court held that the challenged executive order “violate[d] ‘the minimum requirement of neutrality’ to religion.” 208 L. Ed. 2d 206, Id. at *1 (quoting Church of Lukumi, 508 U.S. at 533). Under the Supreme Court’s reasoning, the New York order was not neutral because it “single[d] out houses of worship for especially harsh treatment.” Id. The Court held that this “disparate treatment” of religion rendered the COVID-19 restrictions in the order not neutral or generally applicable. 208 L. Ed. 2d 206, Id. at *2. Applying strict scrutiny review to the New York order, the Supreme Court held that “[s]temming the spread of COVID-19 is unquestionably a compelling interest,” but concluded the challenged order was not narrowly tailored.

Here, the Ninth Circuit concluded that the Supreme Court’s decision in Roman Catholic Diocese compelled a reversal of the District Court’s denial of Calvary’s request for a preliminary injunction. The Court explained that the Directive, like the New York order, treats many secular activities and entities significantly better than religious worship services. Nevada casinos, bowling alleys, retail businesses, restaurants, arcades, and other such secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. Thus, the Ninth Circuit found that the Directive’s restrictions engendered the same “disparate treatment” of religion as did the New York order. The Court stated that, as in Roman Catholic Diocese, “disparate treatment” of religion triggered strict scrutiny review.

The Ninth Circuit found that the Directive was not narrowly tailored because, for example, maximum attendance at a religious service could be tied to the size of the house of worship. In other words, instead of a fifty-person cap, the Directive could have, for example, imposed a limitation of 50% of fire-code capacity on houses of worship, like the limitation it imposed on retail stores and restaurants, and like the limitation that the Nevada Gaming Control Board imposed on casinos. The Court concluded therefore that, though slowing the spread of COVID-19 was a compelling interest, the Directive was not narrowly tailored to serve that interest. Accordingly, the Court reversed and remanded.


News outlet’s intervention led to release of only insignificant, insubstantial records, which did not warrant an award of attorney’s fees.

Burgess v. Coronado Unified Sch. Dist., 2020 Cal. App. LEXIS 1225 (4th Dist. Dec. 24, 2020)

Facts: In November 2017, news outlet Voice of San Diego (“Voice”) requested records from the Coronado Unified School District (“District”) under the California Public Records Act (“PRA”; Government Code section 6250 et seq.) seeking “[a]ll public records relating to any substantiated claims of sexual misbehavior and related misconduct for any employee, official, contractor, agent or volunteer of the District arising within the last 10 years.” Voice later clarified that “substantiated claims” included yet-unproven complaints that appeared well founded. The District informed its employee Randall Burgess, who had been the subject of unsubstantiated molestation allegations, that it intended to produce certain responsive documents.

Burgess filed a “reverse-PRA” petition for writ of mandate and request for injunctive relief to prevent their disclosure. In a reverse-PRA action, an interested party seeks a judicial ruling precluding a public agency from disclosing allegedly confidential documents pursuant to the PRA. Voice subsequently filed a second records request in August 2018, seeking “[a]ll letters, emails, and other correspondence” submitted to the District since the beginning of 2017 with regard to Burgess, including “comments delivered to the school board by members of the public at one or more public hearings.”

After Voice intervened in Burgess’s lawsuit, the trial court ordered the District to disclose publicly available court filings and materials submitted to the District at a public hearing. These included a student complaint describing alleged molestation by Burgess. The trial court noted that the allegations were known to the public and were what prompted the District to put Burgess on leave and for the public to submit comments in support of or against him. Before the District could send these documents to Voice, Burgess released them to another media outlet. He then voluntarily dismissed the case.

Voice filed a motion seeking $78,720 in attorney’s fees pursuant to Code of Civil Procedure section 1021.5. The trial court denied Voice’s motion, explaining that Voice “did not cause the District or [Burgess] to disclose any public records of any significance that was not already available to the public in some manner.” The trial court therefore concluded that attorney’s fees were not warranted. Voice appealed, contending that the trial court erred in finding that Voice’s participation did not confer a significant public benefit.

Held: The Fourth District Court of Appeal observed that Section 1021.5 permits a trial court to award attorney’s fees to a successful party in any action that “(1) enforced an important public right, (2) conferred a significant public benefit, and (3) is of a type that private enforcement was necessary, and the financial burden justifies subsidizing the successful party’s attorneys.” (Carlsbad Police Officers Assn. v. City of Carlsbad (4th Dist. 2020) 49 Cal.App.5th 135, 145 (citing Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214, 1216–1217).)

The Court explained that under the PRA, attorney’s fees are unavailable to an intervener in a reverse-PRA suit. (Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1268.) An intervener in a reverse­-PRA lawsuit is limited to seeking fees under Code of Civil Procedure section 1021.5 where it meets all eligibility criteria. (See Carlsbad, supra, at pp. 145–146.)

Considering the requirements of Section 1021.5, the Fourth District allowed that Voice vindicated an important public right in securing access to government records about potential teacher misconduct that Burgess sought to withhold. The Court stated, however, “that does not answer the separate question whether the records thereby produced resulted in a significant public benefit.” The Court explained that the significant benefit requirement “requires more than a mere statutory violation. It would therefore go too far to construe this requirement to authorize attorney’s fees in every or nearly every reverse-PRA suit where the court ordered some disclosure. Instead, a trial court must make a realistic assessment of the gains achieved in a reverse-PRA case, just as it would in any other matter.” ( (Woodland Hills Residents Assn. v. City Council (1979) 23 Cal.3d 917, 939–940.)

Voice argued that the trial court abused its discretion in awarding attorney’s fees. Voice contended that records pertaining to alleged sexual misconduct “are inherently of significant benefit to the public” because they “reflect matters of substantial concern.” The Court acknowledged that sexual misconduct allegations concerning a school employee and Voice’s vindication of rights under the PRA implicated matters of substantial public concern, but that did not resolve whether Voice’s intervention in this case produced a substantial public benefit. The Court explained that “[t]he mere possibility that intervention might result in a substantial public benefit does not mean a significant benefit was ultimately conferred.”

The Fourth District concluded that the trial court reasonably found that Voice failed to secure a significant public benefit. The Court of Appeal noted that in denying injunctive relief to Burgess, the trial court ordered the District to produce letters and comments submitted by parents at a public hearing in October 2017. Although the original molestation claim was among these records, the Fourth District observed that “the trial court ordered its disclosure precisely because the allegations were already publicly known. Carefully assessing the gains from the documents that were ordered produced, the trial court reasonably concluded that Voice’s intervention conferred only an insubstantial benefit.” Moreover, the Fourth District found that Voice’s own pleadings revealed that Voice sued the District precisely because the produced “records revealed almost nothing regarding the underlying allegations or the District’s actions in response. In other words, there was no substantive benefit” from Voice’s intervention in the case.

The Fourth District Court of Appeal thus concluded that the trial court reasonably found that Voice’s intervention in this case led to the release of only insignificant, insubstantial records, which did not warrant an award of attorney’s fees. Accordingly, the Fourth District affirmed.


  1. Plaintiff’s pension rights may properly be modified due to condition subsequent of commission of job-related felony.

Hipsher v. L.A. Cnty. Emps. Ret. Ass’n, 58 Cal. App. 5th 671 (2nd Dist. 2020)

Facts: Tod Hipsher was employed by the LAFD from 1983 to early 2013. Soon after he retired from the Los Angeles County Fire Department (“LAFD”), he was convicted of a federal felony for directing an offshore gambling operation beginning in 2001 and continuing for at least 12 years. Los Angeles County Employees Retirement Association (“LACERA”), subsequently reduced Hipsher’s vested retirement benefits under the Public Employees’ Pension Reform Act of 2013 (Government Code section 7522 et seq.; “PEPRA”), based on a determination by the County of Los Angeles (“County”) that Hipsher’s felonious conduct was committed in the scope of his official duties. Section 7522.72 provides a mechanism requiring that a public pensioner employed prior to PEPRA’s effective date[12] (referred to as a “legacy employee”) forfeit a portion of his or her retirement benefits after a conviction of a felony offense occurring in the performance of the pensioner’s official public duties.

Hipsher challenged LACERA’s forfeiture determination by a petition for writ of mandate and a complaint seeking declaratory relief. The trial court issued a peremptory writ of mandate directing the County to afford adequate due process protections before reducing Hipsher’s retirement benefits, but found in favor of LACERA and the State of California on Hipsher’s claim for declaratory relief. On appeal, the Second District Court of Appeal determined that Section 7522.72 was constitutionally sound, but that LACERA, not the County, bore the burden to provide Hipsher the requisite due process protections to determine whether his conviction fell within the scope of that statute.[13]

The California Supreme Court granted Hipsher’s petition for review, deferred briefing and transferred the matter back to the Second District directing the Court of Appeal to vacate the prior decision and reconsider the cause in light of the Supreme Court’s decision in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (2020) 9 Cal.5th 1032. In Alameda County, the Supreme Court articulated a multistep test for analyzing contract clause claims in the public employee pension context.

Held: On remand from the Supreme Court, the Second District Court of Appeal explained initially that Alameda County altered the “California Rule,”[14] instructing courts to use a three-part analysis to evaluate the constitutionality of statutory modifications of public employee pension plans regarding whether such modifications impair vested pension rights of public employees:

(1) Determining the effect of the modification: A court first must consider whether the statutory modification of public employee pension rights “impose[s] an economic disadvantage on affected employees,” relative to the preexisting pension plan and, if so, whether the disadvantages are offset by comparable new advantages. (Alameda County, supra, 9 Cal.5th at p. 1082.)

(2) Determining whether the government’s articulated purpose for the modification justifies any resulting impairment of pension rights: Assuming the disadvantages are not offset, the court must determine whether the government’s articulated purpose for making the change is “sufficient, for constitutional purposes, to justify any impairment of pension rights.” (Alameda County, supra, 9 Cal.5th at p. 1082.) Public employee pension plans may be modified “‘for the purpose of keeping [the] pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system.’” (Alameda County, supra, 9 Cal.5th at p. 1082, quoting Allen I, supra, 45 Cal.2d at p. 131.) Such changes can survive contract clause scrutiny so long as the changes “‘bear some material relation to the theory of a pension system and its successful operation.’” (Alameda County, supra, 9 Cal.5th at p. 1082, quoting Allen I, supra, 45 Cal.2d at p. 131.) Alameda County also explained that for a modification to have a material relation to the theory of pension system, such a modification “‘must relate to considerations internal to the pension system.’” (Alameda County, supra, at p. 1098.)

(3) Determining whether a comparable advantage would undermine or be inconsistent with the purpose of the modification: Assuming the change was made for a constitutionally permissible purpose, it “will be upheld under the contract clause only if providing comparable advantages would undermine, or would otherwise be inconsistent with, the modification’s constitutionally permissible purpose.” (Alameda County, supra, 9 Cal.5th at p. 1093.)

The Second District had previously observed in Hipsher I that “[a] public employee’s vested retirement benefits can be defeated upon the occurrence of a ‘condition subsequent.’”[15] The Court had concluded that Hipsher’s conviction for running the illegal gambling operation for over 12 years using public resources and in the course of his official duties constituted a condition subsequent permitting forfeiture of vested pension rights for the corresponding time period. (See also Allen v. Board of Administration (1983) 34 Cal.3d 114, 124 (Allen II) [“‘Laws which restrict a party to those gains reasonably to be expected from the contract are not subject to attack under the Contract Clause, notwithstanding that they technically alter an obligation of a contract’”].)

Moreover, the Second District explained that Alameda County acknowledged the long-held rule that even where an employee’s vested pension rights are at stake, the “‘employee does not have a right to any fixed or definite benefits,’” and “‘the amount, terms, and conditions of the benefits may be altered.’”[16] The Court explained that its prior decision was premised on settled precedent that pension rights are subject to conditions designed to assure that public employees faithfully and honestly discharge their duties, and that “the employee’s eligibility for benefits can, of course, be defeated ‘upon the occurrence of a condition subsequent’” (Betts v. Board of Administration (1978) 21 Cal.3d 859, 863.) The Second District concluded that the decision in Alameda County did not disturb the Court’s earlier conclusion that Hipsher’s pension rights could properly be modified as a result of the condition subsequent of the commission of a job-related felony.

Applying the Alameda County test, the Second District concluded that Alameda County confirmed the Court of Appeal’s prior holding that Section 7522.72’s public purpose—to protect the pension system from abusive practices of faithless public employees and preserve public trust in government—justified any concomitant diminution in Hipsher’s pension rights. The Second District also concluded that Section 7522.72 need not provide a comparable advantage to offset disadvantages Hipsher may suffer as a result of Legislative changes to the public employee retirement system enacted decades after he began his employment. The Court explained that such a requirement would be antithetical to the statute’s purpose by “unfairly enriching a malfeasant legacy employee for engaging in the very sort of abusive practices [S]ection 7522.72 is intended to curb.” The Court also concluded that Section 7522.72 is temperate and narrowly tailored, and bears a material relationship to the theory of the pension system to reward faithful public service.

The Court found that Section 7522.72 was not an unconstitutional ex post facto law, and that Hipsher was entitled to appropriate administrative due process. Accordingly, the Court modified the trial court’s judgment and remanded the matter with instructions for LACERA to provide Hipsher appropriate notice of its intent and the reasons for its initiation of forfeiture proceedings, and an opportunity to present his objection to LACERA’s impartial decision maker, pertaining to whether Hipsher would fall within the scope of Section 7522.72. The Court otherwise affirmed the judgment, as modified.

  1. Brady/Johnson motion to review officer’s personnel file was denied because appellant failed to state how officer’s file had relevant Brady material and defense theory did not concern potential officer misconduct.

In re M.C., 2020 Cal. App. LEXIS 1221 (2nd Dist. Dec. 23, 2020)

Facts: In March 2019, Eldwin Lum watched his home video surveillance feed as two men, wearing dark hoodies and pants, exited from a black Kia vehicle and ran towards Lum’s house. One man wore red shoes and the other man wore blue shoes. When he heard the downstairs sliding glass door break, Lum called 911. After he heard sounds of male voices, rummaging through the house, people walking on broken glass, and then his stairs creaking, Lum yelled that he had a gun. Running halfway down the stairs, Lum fired his pistol and saw two men, one wearing blue shoes and the other with red shoes flee. They ran out the broken glass door. Sheriff’s units responded to the 911 call and searched the area.

Officers found two men in a backyard, hiding in a boat. One of these suspects had a glass breaking device in his pocket. Deputy Sheriff Navarro assisted officers in a backyard search a few houses away. Minor M.C. was in a neighbor’s shed, hiding inside a cardboard box. M.C. and the two men were brought to the street one at a time and Lum made an identification based on “attire and the color of their shoes.” At trial, still photos from a neighbor’s surveillance video were received into evidence. Lum identified the black Kia and the “two individuals with the shoes.” Lum said M.C. was one of the burglars on the stairs.

M.C. filed a Brady/Johnson motion (Brady v. Maryland (1963) 373 U.S. 83; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696) for the in camera inspection and discovery of Deputy Sheriff Navarro’s confidential personnel records. M.C.’s supporting declaration stated that the prosecutor told defense counsel that Deputy Sheriff Navarro’s personnel file had “discoverable information” and that he was an essential witness. The declaration did not explain the Deputy Sheriff’s role in the case, the nature of his expected testimony, or how his credibility was at issue. Opposing the motion, the Los Angeles County Sheriff’s Department argued that M.C. had not made a good cause showing for the in camera inspection and disclosure of the confidential personnel file.

The trial court denied the motion without prejudice. M.C. was declared a ward of the court and returned to his home on probation after the trial court sustained a petition for first degree burglary with a person present and felony vandalism. M.C. appealed.

Held: M.C. contended on appeal that the trial court erred in denying his Brady/Johnson motion. The California Second District Court of Appeal explained that Brady requires that the prosecution disclose “‘evidence favorable to an accused’” (U.S. v. Bagley (1985) 473 U.S. 667, 676) that is material either to guilt or to punishment (Brady, supra, 373 U.S. at p. 87).

In Johnson, the Supreme Court of the United States held that a defendant may file a Pitchess motion for the disclosure of Brady material in an officer’s personnel file. In that case, the San Francisco Police Department informed the District Attorney that the personnel records of two officers in a pending case might contain exculpatory information. The prosecution filed a Pitchess motion for the in camera inspection of the officers’ personnel files and the Brady disclosure of records material to the prosecution and the defense. The supporting declaration stated the officers’ personnel files may contain “‘sustained allegations of specific Brady misconduct, reflective of dishonesty, bias, or evidence of moral turpitude. …’” It stated the records “‘are material to the pending litigation in that they pertain to the credibility of a necessary and material prosecution witness, and could either impeach said witness or lead to evidence exonerating the defendant.’” (Id. at p. 706.) The Johnson Court held that “[t]he information the police department has provided, together with some explanation of how the officers’ credibility might be relevant to the case, would satisfy the threshold showing a defendant must make in order to trigger judicial review of the records under the Pitchess procedures.” (Johnson, supra, 61 Cal.4th 696, 705–706.)

Here, the Second District found that, unlike Johnson, M.C.’s supporting declaration failed to state how Deputy Sheriff Navarro’s personnel file had Brady material relevant to the case, nor presented any scenario of officer misconduct. M.C.’s declaration did not say the sought personnel files contained “‘sustained allegations of specific Brady misconduct, reflective of dishonesty, bias, or evidence of moral turpitude. …’” (Johnson, supra, 61 Cal.4th at p. 706.) Nor did the supporting declaration explain why the Brady material was relevant to Deputy Sheriff Navarro’s credibility. There was no description of Deputy Sheriff Navarro’s role in the case, the nature of his expected testimony, or how his credibility was linked to some defense or disputed issue. Deputy Sheriff Navarro did not write the arrest report, nor interview M.C. or Lum. There was no defense claim that the deputy sheriff used excessive force, conducted a search without reasonable cause, mishandled evidence, tried to get M.C. to confess, or conducted an unfair field identification.

Moreover, M.C. defended on the theory that Lum’s identification was unreliable because it was based solely on the clothing and the red and blue shoes worn by the intruders. It had nothing to do with Deputy Sheriff Navarro or possible Brady material in his personnel records. The defense theory was that M.C. never entered the house and Lum made a wild pistol shot that shattered the sliding glass door. Deputy Sheriff Navarro responded to the 911 call after all of these events.

The Second District stated that it found no authority stating “that a Brady/Johnson motion may be used as a fishing expedition to disclose confidential personnel files that have no logical link to the 911 call, the arrest, the charges, a defense, or the impeachment of a witness.” The Court accordingly affirmed.

  1. In a Fair Employment and Housing Act interactive process claim, plaintiff must prove an available reasonable accommodation at the time an interactive process should have taken place under Government Code section 12940(n).

Shirvanyan v. L.A. Cmty. Coll. Dist., 2020 Cal. App. LEXIS 1237 (2nd Dist. Nov. 30, 2020)

Facts: The Fair Employment and Housing Act (“FEHA”; Government Code section 12900 et seq.) provides in part that “those employees with a disability who can perform the essential duties of the employment position with reasonable accommodation” have the opportunity to do so and are not discriminated against based on their disability. (Green v. State of California (2007) 42 Cal.4th 254, 264.) A “reasonable accommodation” is “‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’” (Furtado v. State Personnel Bd. (4th Dist. 2013) 212 Cal.App.4th 729, 745 (italics omitted), quoting Nadaf-Rahrov v. Neiman Marcus Group, Inc. (1st Dist. 2008) 166 Cal.App.4th 952, 974.) A reasonable accommodation may include “[j]ob restructuring, part-time or modified work schedules,[]reassignment to a vacant position” (Section 12926(p)(2)), or a “finite leave of absence […] to allow an employee time to recover.” (Nealy v. City of Santa Monica (2nd Dist. 2015) 234 Cal.App.4th 359, 377–378.)

FEHA imposes an affirmative duty on employers “to make [a] reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer’s operation.” (Id., at p. 373, citing Section 12940(m).) Because an employee may not become aware of all available and effective reasonable accommodations, FEHA also requires that “in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition,” an employer “engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any.” (Section 12940(n).) An employer’s failure to make a reasonable accommodation for an employee with a known disability—regardless of whether an employer has engaged in the interactive process or not[17]—is unlawful (Section 12940(m)(1)), and the disabled employee may sue to recover harm suffered as a result. An employer’s failure to engage in the interactive process that causes harm to a disabled employee or former employee is also independently actionable.[18] For the purposes of a FEHA claim, the cause of an employee’s disability is irrelevant; the focus is on the employer’s efforts to reasonably accommodate the disability, regardless of its cause.

Anahit Shirvanyan was employed as a Kitchen Coordinator at the Child Development Center (the “Center”) at Los Angeles Valley College, a part of the Los Angeles Community College District (the “District”), for approximately eight years, beginning in 2007. Her “essential job functions” included “repetitive use of her hands” to do a variety of tasks, including “hand wash[ing] large and heavy pots and pans” and required among other things “repetitive lifting, repetitive pulling, repetitive pushing, repetitive use of her hands” and the ability “to lift up to about 50 pounds.”

Shirvanyan was diagnosed with nerve damage and in May 2015 with “moderate to severe right carpal tunnel syndrome” of the “right upper extremity” with “pain, numbness and weakness in her right hand.” Carpal tunnel syndrome is a recognized disability under FEHA. Shirvanyan began wearing a brace daily, needed help in the kitchen because of her injuries, and reduced her hours due to pain. She was prescribed wrist support and physical therapy, neither of which resolved her pain. Shirvanyan told her supervisors about her carpal tunnel syndrome and wrist pain. She often asked for coworker assistance for strenuous tasks, complained of pain daily, and sometimes cried at the end of her shift due to the pain.

Shirvanyan’s supervisors were aware of her difficulties performing her job. However, they denied her repeated various requests for accommodations, nor change her duties, transfer her to another function, nor give her time off to address her wrist injury.

In December 2015, Shirvanyan injured her shoulder at work when opening the door of a heavy industrial dishwasher. Her doctor’s medical release form stating that Shirvanyan could not return to work until March 2016 was delivered to the Center. Shirvanyan never returned to work after her shoulder injury, nor did she provide any additional medical leave forms or requests to the center extending the length of her desired leave beyond the March 2016 date in the doctor’s form. The center did not contact Shirvanyan about a potential return to work after her shoulder injury.

Shirvanyan sued the District, alleging three causes of action under FEHA: (1) disability discrimination; (2) failure to engage in the interactive process; and (3) failure to provide a reasonable accommodation. A jury rejected Shirvanyan’s disability discrimination claim but found in her favor on her reasonable accommodation and interactive process claims, awarding damages totaling nearly 2.9 million dollars. The trial court denied the District’s motion for judgment notwithstanding the verdict, and entered judgment in Shirvanyan’s favor. The District appealed.

Held: On appeal, the District argued that a necessary element of a FEHA interactive process claim under Government Code section 12940(n) is the availability of a reasonable accommodation at the time an interactive process should have taken place, such that engaging in the process would not have been futile. The District argued that the evidence did not support a finding that a reasonable accommodation was available.

The California Second District Court of Appeal explained that well-reasoned precedent supported the District’s argument that, in order to succeed on a cause of action for failure to engage in an interactive process, “an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California (4th Dist. 2009) 173 Cal.App.4th 986, 1018; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 981 [“[S]ection 12940[, subdivision] (n) imposes liability only if a reasonable accommodation was possible”].) The Court explained that while an employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself, once the parties had engaged in the litigation process, the employee must be able to identify an available accommodation the interactive process should have produced in order to prevail. (See Scotch, supra, 173 Cal.App.4th at pp. 1018–1019.)

The Court of Appeal explained that “Section 12940[, subdivision ](n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.) Shirvanyan argued otherwise, in effect making a statutory interpretation argument that interpreting Section 12940, subdivision (n) (deeming a failure to engage in the interactive process unlawful) as requiring an available reasonable accommodation rendered subdivision (m) (deeming a failure to provide a reasonable accommodation unlawful) superfluous. The Court rejected Shirvanyan’s argument, explaining that an employer might engage in the interactive process and still refuse to offer a reasonable accommodation.

Moreover, even assuming that this language in Section 12940 defined as an unlawful employment practice an employer’s failure to engage in an interactive process with an employee for whom no reasonable accommodation existed, the Court stated that this would still not mean that the employee had a cognizable FEHA cause of action. Under such circumstances, had the employer engaged in an interactive process, that process could not have benefited the employee.[19] That is, the failure to engage in such process in this context could not have negatively impacted the employee’s ability to work. The Second District added that “[p]ermitting a FEHA cause of action on such facts thus would allow recovery for harm resulting solely from an employee’s perception that she was not permitted a fair chance to perform her job—as opposed to her actually having been denied such a fair chance.”

The Second District concluded that, viewing the record in the light most favorable to Shirvanyan, substantial evidence supported a determination that finite medical leave was an available reasonable accommodation for her wrist injury at the time she requested such accommodation. The Court found that a finite leave of absence could have permitted Shirvanyan’s wrist to recover to such an extent that she could go back to her customary work.

The Court of Appeal also determined that there was insufficient evidence to support the jury’s verdict for Shirvanyan on her reasonable accommodation and interactive process claims, to the extent that these claims relied on a failure to accommodate or engage in the interactive process regarding her shoulder injury. The Court explained that the doctor who wrote the medical leave note was unaware at that point of the extent of Shirvanyan’s shoulder injury, and another doctor two years later at the time of trial – who determined that the shoulder injury prevented Shirvanyan from returning to work – did not provide a time by when the shoulder injury would no longer prevent her from resuming work at the center. Thus, the Court found that no evidence suggested that a finite leave would have been a reasonable accommodation for Shirvanyan’s shoulder injury.

Because the Court also decided that the jury’s verdict was ambiguous as to whether the jury found for Shirvanyan based in any part on the District’s response to her wrist injury, the Second District reversed the judgment and remanded for a retrial only on Shirvanyan’s reasonable accommodation and interactive process claims, and only to the extent those claims sought recovery for the District’s response to Shirvanyan’s wrist injury.

  1. Summary judgment reversed after finding potential liability for employer’s failure to take corrective action against harassing customer.

Christian v. Umpqua Bank, 2020 U.S. App. LEXIS 40829 (9th Cir. Dec. 31, 2020)

Facts: Jennifer Christian began working for Umpqua Bank (“Umpqua”) in 2009 as a Universal Associate. A customer who opened an account in late 2013 subsequently visiting the bank to drop off notes for Christian expressing that Christian was “the most beautiful girl” the customer had seen, and that he wanted to go on a date with her. Christian expressed concern to her colleagues and her supervisor. Despite Christian telling the customer on his next visit that she was not going to go out on a date with him, the customer’s behavior continued. In early 2014, he sent Christian a long letter saying that Christian was his dream girl, that they were meant to be together, and that he wanted to be with Christian. Disturbed by the letter, Christian showed it to her manager, and to a corporate trainer and other colleagues who warned her to be careful. Christian learned that the customer had been to another location, Umpqua’s Esther Short branch, several times asking employees there how he was going to get a date with Christian. Christian was warned by these employees and her own branch’s colleagues of potential danger. Christian became increasingly concerned for her safety.

On Valentine’s Day 2014, the customer sent Christian flowers and a card. Christian, the corporate trainer, and Christian’s lead supervisor told Christian’s manager that “this was a dangerous situation for [Christian].” Christian told her manager that she did not want the customer to be allowed to return to the bank. According to Christian, her manager did not seem interested in dealing with the situation and asked Christian to call the customer instead to tell him of the inappropriateness of the flowers. Because of her manager’s reluctance to act, Christian called the customer and informed him and that she would not go on a date with him. Yet the customer did not stop, dropping a letter stating that he and Christian were “soulmates.” Christian shared the letter with her manager, lead supervisor and other colleagues.

Christian did not have any direct contact with the customer again until September 2014, but the customer continued to go to the Esther Short branch asking its employees about Christian and how the customer was going to get a date with Christian. Christian’s colleagues informed her that the customer continued to ask about her.

When she was volunteering on behalf of Umpqua at a September 2014 charity event, Christian felt threatened when she noticed the same customer staring for 20 to 30 minutes. A few days after the charity event, the customer returned to Christian’s branch to open a new account. Christian’s manager did not ask the customer to leave but instead told Christian to open a new account for the customer. Christian felt uncomfortable. When she reminded her manager that he had promised that the customer would not be allowed to return, the manager said he did not remember. As another associate assisted the customer, the customer stared at Christian.

When he returned a few days later, the customer sat in the bank lobby staring at Christian for at least 45 minutes. Christian said she “became filled with fear and sick to [her] stomach.” Christian subsequently informed spoke with a regional manager, and left voicemail messages with the regional manager for her region, and a Human Resources representative, seeking help.

Christian thereafter called out sick due to stress and anxiety, and refused to return to work at the Downtown branch until a no-trespassing order was implemented to bar the customer from visiting the bank. Her manager instructed Christian to return to work and directed her to “just hide in the break room” if the customer visited the bank.

Shortly thereafter, Christian requested in writing that the bank close the customer’s bank account and obtain a no-trespassing order against him. Christian also asked to be transferred to another particular Umpqua branch, although she would have fewer hours per week at the other location. Christian stated that she was willing to accept the financial burden of fewer hours because she needed to work in a safe environment and that she had been given no other options. Umpqua closed the customer’s account there and told him not to return and ultimately transferred Christian to the branch she had requested. She resigned shortly thereafter.

Christian sued, alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Washington Law Against Discrimination. A federal District Court granted Umpqua’s motion for summary judgment. Christian appealed.

Held: The Ninth Circuit Court of Appeals explained that to establish sex discrimination under a hostile work environment theory, a plaintiff must show she was subjected to sex-based harassment that was sufficiently severe or pervasive to alter the conditions of employment, and that her employer is liable for this hostile work environment. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2001), as amended (Jan. 23, 2002).

Regarding the first question, the Court explained that to determine whether the conduct was sufficiently severe or pervasive, “[w]e must consider all the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008). (quoting Harris, 510 U.S. at 23).

The Court found that that the District Court erred in its reasoning first by evaluating the harassing incidents of September 2014 as isolated from those of February 2014, rather than evaluating them together. The Court noted that Christian understandably experienced the harassment not as isolated and sporadic incidents, but rather as an escalating pattern of behavior that caused her to feel afraid in her own workplace. Second, the District Court erred in declining to consider incidents in which Christian did not have any direct, personal interactions with the customer, such as when he wrote her a letter describing her as his “soulmate,” sent her flowers, and watched her in the bank lobby. The Court explained that its obligation was to “consider all the circumstances,” Davis, 520 F.3d at 1095, including those incidents that did not involve verbal communication between the plaintiff and harasser, physical proximity, or physical or sexual touching.

The District Court also erred in neglecting to consider record evidence of interactions between the customer and third persons, such as the customer’s repeated visits to the Esther Short branch to question its employees about how he would get a date with Christian. The Ninth Circuit explained that “[o]ffensive comments do not all need to be made directly to an employee for a work environment to be considered hostile.”[20] Christian learned from her colleagues that the customer was persistently contacting them to obtain information about her. The Ninth Circuit explained that such conduct could form part of a hostile environment claim and must be considered.

The Court concluded that genuine disputes of material fact existed as to the severity or pervasiveness of the harassment such that a jury could find in Christian’s favor. The Court observed that the customer repeatedly pestered Christian, asked her on dates, and sent her notes and letters declaring that they were “soulmates” and “were meant to be together.” The customer persisted for many months in his unwelcome conduct after Christian asked him to stop. Christian was terrorized not only by the customer’s bizarre and erratic behavior in and of itself but also by its unknown potential to escalate. Christian’s colleagues also feared for her safety and repeatedly warned her to be careful—further bolstering the reasonableness of her reaction to the stalking.[21] The Court thus concluded that the evidence was more than sufficient to create a triable issue as to whether the harassment was sufficiently severe or pervasive to alter the conditions of Christian’s employment.

Turning to Umpqua’s liability, the Ninth Circuit explained: “[A]n employer may be held liable for sexual harassment on the part of a private individual, such as [a customer], where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.” Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997). “[T]he employer’s corrective measures must be reasonably calculated to end the harassment; the reasonableness of the corrective action will depend on, inter alia, the employer’s ability to stop the harassment and the promptness of the response.” Freitag v. Ayers, 468 F.3d 528, 539-40 (9th Cir. 2006), as amended (Nov. 3, 2006) (internal quotation marks omitted). Effectiveness is measured not only by ending the current harassment but also by “deterring future harassment—by the same offender or others. If 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach.” Fuller v. City of Oakland., 47 F.3d 1522, 1528-29 (9th Cir. 1995), as amended (Apr. 24, 1995) (internal citation omitted).

Considering whether Umpqua took prompt, appropriate, and effective action in February 2014, the Court found that Umpqua did not take steps to inform the customer not to return to the bank or closing his account. Nor did Umpqua take any other action to end the harassment, such as creating a safety plan for Christian, securing a no-trespassing order, or discussing the situation with bank security or Human Resources. Moreover, Umpqua’s “action” easily could be deemed ineffective, since the customer did not “elect[] to cease his activities[.]” Fuller, 47 F.3d at 1529. The Court also determined that a jury could find Umpqua’s response unreasonable because it placed the bulk of the burden on Christian herself to hide in the break room, or to transfer to a less desirable location as a result of an employer’s remedy for sexual harassment. The Court therefore concluded that there were genuine issues of material fact whether Umpqua either ratified or acquiesced in the harassment by failing to take prompt, appropriate, and effective action.

The Ninth Circuit Court of Appeals concluded that there was more than enough evidence to create a genuine issue of material fact as to the sufficiency of Umpqua’s response, and that a jury reasonably could conclude that Umpqua ratified or acquiesced in the customer’s harassment. The Ninth Circuit thus held that the District Court erred in granting summary judgment in favor of Umpqua, and accordingly reversed the District Court’s grant of summary judgment in Umpqua’s favor.


  1. Resisting arrest under Penal Code section 148(a)(1) does not require actual knowledge that the person defendant resists was a police officer.

People v. Mackreth, 58 Cal. App. 5th 317 (6th Dist. 2020)

Facts: In August 2017, a 911 caller reported that her vehicle had just been intentionally hit by the driver of another vehicle and run off the road. Responding to the call, Sunnyvale Public Safety Officer Matthew Meyer arrived at the scene outside of a convenience store.[22] He was unable to elicit much information from the confused and upset caller, but a bystander told the officer that the driver of the other vehicle “ran into 7-11” and was “stuffing all kinds” of things into his pants. Then the bystander noticed the driver, defendant Tristan Mackreth, behind the counter inside the convenience store. As the officer approached the store, he could see clearly inside, and made eye contact with Mackreth before Officer Meyer entered the store. The officer also saw a store clerk attending to a customer. Mackreth immediately turned and ran into the back store room behind the register.

Officer Meyer was concerned that a robbery was in progress and called for backup. When Mackreth reappeared with something in his hands,[23] Officer Meyer drew and his taser, pointed it at Mackreth, and ordered him to get on the ground. Mackreth looked puzzled and showed clear signs of being under the influence of a stimulant. Rather than complying with the officer’s order, Mackreth asked the Meyer to show his badge. Officer Meyer found the request odd under the circumstances, and thought that Mackreth did not believe that the officer – who was wearing a standard police uniform with a readily apparent badge – was a real police officer. Mackreth did go to the ground, but, despite the officer’s warning not to move or else be tased, jumped back up whereupon Officer Meyer tased Mackreth for a second. The effect was short-lived. As Mackreth ran past, the officer struck Mackreth twice with his baton but was unable to impede Mackreth from jumping over the counter and towards front door.

Backup officers encountered Mackreth outside as he was fleeing, and one officer tased Mackreth again. As the other officer approached Mackreth on the ground, Mackreth kicked up at him, and a physical scuffle ensued between Mackreth and the three officers with Officer Meyer also engaged in the struggle. Mackreth seemed “very high” to the officers. The officers struck Mackreth with batons and punched him while ordering him to stop resisting, but without discernible effect. Mackreth continued to tense and pull away. Finally, he was tased again, after which the officers were able to handcuff Mackreth. He still tried to pull away thereafter.

After Mackreth was taken to a hospital and had his blood drawn, methamphetamine was found in his blood at an “abuse level” at the time of the incident. A baggie of methamphetamine was also found in his car. Methamphetamine can induce hallucination and make a person agitated, violent, paranoid, and even psychotic. Mackreth stated that he thought the police officers were “fake cops,” not real ones. He stated that he was “obviously hallucinating.” Mackreth testified that at the time of the incident, he questioned whether any of the three were real police officers, and felt that the officers were trying to hurt him, possibly fatally.

A jury convicted Mackreth of, among other things, misdemeanor resisting arrest (Penal Code section 148(a)(1)). The trial court suspended imposition of sentence and placed him on court probation with 440 days in jail, which was deemed served.

Mackreth appealed, challenging the resisting arrest conviction. He contended that the trial court prejudicially erred in instructing the jury that he could be convicted of resisting arrest if he knew or “reasonably should have known” that the person he resisted was a police officer. He asserted, based on In re A.L. (6th Dist. 2019) 38 Cal.App.5th 15, that the crime of resisting arrest requires proof of actual knowledge.

Held: The Sixth District Court of Appeal observed that a person commits resisting arrest under Section 148(a)(1) when he or she “willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician … in the discharge or attempt to discharge any duty of his or her office or employment … .” (Italics added.) Mackreth claimed that the statute’s use of the word “willfully” meant that “actual knowledge” is required, and that “reasonably should have known” was not the proper standard.

The Court concluded that application of the rules of statutory construction to Section 148(a)(1) inescapably led to a conclusion that the Legislature did not intend for its use of the word “willfully” here to create a requirement of “actual knowledge.” The Court explained first that the word “willfully” is defined in the Penal Code, and its definition does not encompass a requirement of actual knowledge. “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (Penal Code section 7(1), italics added.) The Sixth District explained that a “willingness … to commit the act”—resisting, delaying, or obstructing—does not by itself incorporate a requirement of “actual knowledge.” Moreover, a “willingness to commit the act” does not require actual knowledge of every attendant circumstance.

Second, the Court determined that the origins of California’s resisting arrest laws in the 1800s demonstrated that the Legislature did not intend for the word “willfully” in Section 148(a)(1) to require actual knowledge. The Court stated that by simultaneously enacting Section 148 and Section 69 in 1872 and using “willfully” to describe the required mental state for a Section 148 offense but “knowingly” to describe the required mental state for a Section 69 resisting offense, the Legislature clearly expressed its decision to require different mental states for the two offenses.

The Sixth District expressed that it respectfully disagreed with the Sixth District’s prior decision in A.L. and declined to follow it to the extent that it stated that actual knowledge was required for a resisting arrest conviction under Section 148(a)(1). After reviewing the cases upon which the A.L. opinion relied, the Sixth District here declared that those cases did not support A.L.’s conclusion that actual knowledge was required under Section 148(a)(1).

The Court explained that because a violation of Section 148(a)(1) is not a specific intent crime, evidence of Mackreth’s mental disorder was irrelevant and inadmissible to show that he lacked the ability to or did not actually perceive that the officers were peace officers. “The common law does not take account of a person’s mental capacity when determining whether he has acted as the reasonable person would have acted. The law holds ‘the mentally deranged or insane defendant accountable for his negligence as if the person were a normal, prudent person.’” (People v. Jefferson (3rd Dist. 2004) 119 Cal.App.4th 508, 519, italics added.) The Court found that because Section 148(a)(1)’s mental state element was an objective one that focused on whether a defendant “reasonably should have known” of his victim’s status, Mackreth’s mental health issues were irrelevant and inadmissible.

The Sixth District also concluded that the trial court did not err in denying Mackreth’s Pitchess[24] motion, finding that the proffered justification for the motion was not “plausible” in light of surveillance videos of the event. The videos did not leave in question the nature of the force used or conduct of Mackreth that preceded the use of that force.

Accordingly, the Sixth District Court of Appeal affirmed the trial court’s probation order.

  1. Department of Corrections and Rehabilitation regulations excluding from nonviolent offender parole consideration inmates previously convicted or currently convicted of any registerable sex offense conflict with Proposition 57.

In re Gadlin, 2020 Cal. LEXIS 8728 (Dec. 28, 2020)

Facts: In 2007, a jury convicted Gregory Gadlin of assault with a deadly weapon. (Penal Code section 245(a)(1).) The jury sustained allegations that he had previously been convicted of two serious felonies (Section 667(a)(1)): a 1984 conviction for forcible rape, and a 1986 conviction for forcible child molestation. Both prior convictions required registration under the Sex Offender Registration Act. (Section 290(c).) After his 2007 conviction, Gadlin was sentenced to a total prison term of 35 years to life, consisting of 25 years to life for assault with a deadly weapon under the “Three Strikes” law, and an additional five years for each of his two prior serious felony convictions. His judgment was affirmed on appeal.

In November 2016, the California electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016. The initiative amended the California Constitution to provide, in relevant part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, section 32(a)(1).) The initiative also directed the Department of Corrections and Rehabilitation (the “Department”) to “adopt regulations in furtherance of these provisions” and instructed the Secretary of the Department to “certify that these regulations protect and enhance public safety.” (Art. I, section 32(b).)

The Department adopted regulations implementing a nonviolent offender parole consideration process. Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.”[25] The Department’s regulations implementing Proposition 57 adopted the definition of “violent felony” established in Penal Code section 667.5(c).[26] Gadlin’s current conviction for assault with a deadly weapon is not deemed a violent felony under that statute.

After the electorate approved Proposition 57, Gadlin filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court challenging the Department’s determination that he did not qualify for nonviolent offender parole consideration. The trial court denied the petition.

Gadlin sought habeas corpus relief in the Court of Appeal. The Department asserted that Gadlin was ineligible for nonviolent offender parole consideration because, inter alia, he had suffered a prior conviction for a sex offense requiring registration under Penal Code section 290. The appellate court held that the amended regulations improperly excluded petitioner from nonviolent offender parole consideration based on his two prior sex offense convictions. Pointing to the plain text of Section 32(a)(1), the Court of Appeal found that “early parole eligibility must be assessed based on the conviction for which an inmate is now serving a state prison sentence (the current offense), rather than prior criminal history.” (In re Gadlin (2019) 31 Cal.App.5th 784, 789.) The Court of Appeal granted Gadlin’s petition and ordered the Department to consider him for parole within 60 days.

Held: The California Supreme Court granted the Attorney General’s petition for review to consider the Department’s regulations as they applied to both prior and current convictions.

The Department asserted that it was authorized by article I, section 32(b) of the California Constitution to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense was defined by its regulations as a nonviolent felony and regardless of whether the inmate was currently incarcerated for that conviction.

As mentioned earlier, the Department’s regulations categorize inmates convicted of a registerable sex offense as “nonviolent offenders” unless, among other criteria, they are currently incarcerated for a violent felony listed in Section 667.5 (c).[27] The Department issued final regulations in May 2018 which did not exclude from the definition of “nonviolent offenders” individuals convicted of a current or prior sex offense requiring registration. Thus, inmates with prior sex offenses requiring registration, like Gadlin, may be deemed “nonviolent offenders” under the final regulations (unless they are excluded on another basis). The regulations state that nonviolent offenders “shall be eligible for parole consideration by the Board of Parole Hearings.” (Cal. Code Regs., section 3491(a).)

However, the regulations entirely excluded from nonviolent offender parole consideration inmates previously convicted or currently convicted of any registerable sex offense. The final regulations provided that, “[n]otwithstanding [section 3491,] subsection (a),” even nonviolent offenders are “not eligible for parole consideration” if, among other things, “[t]he inmate is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., section 3491(b), (b)(3).)

The Supreme Court explained that in evaluating the validity of a state agency’s regulation under the well-settled principles of statutory interpretation, courts first ask whether the regulation is “‘consistent and not in conflict with’” the provision that authorizes it. (Morris v. Williams (1967) 67 Cal.2d 733, 748, italics omitted.) The Court added that to determine whether the regulation here was consistent with the constitutional provisions enacted by Proposition 57, its “primary concern” in construing a constitutional provision enacted through voter initiative was “giving effect to the intended purpose of the provisions at issue.” (California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933.) To assess this, courts consider the constitutional provision’s text, and, if appropriate, extrinsic sources such as ballot materials.

Considering the language of article I, section 32(a)(1), the Supreme Court determined that the use of the terms “convicted” and “sentenced,” viewed in context with the provision that the inmate would be eligible for parole consideration “after completing the full term for his or her primary offense,” made clear that the voters intended that nonviolent offender parole consideration would be premised on the inmate’s current conviction alone. Parole eligibility under the provision was conditioned on an inmate’s current conviction for a nonviolent felony, the inmate’s being sentenced to prison, and the inmate’s completion of the “full term” for the “primary offense.” (Ibid.) The Court stated that none of those terms suggested any intent to consider prior convictions in determining nonviolent offender parole eligibility.

The Court noted that the Department’s regulations categorized otherwise parole-eligible inmates with registerable sex offenses as “nonviolent offender[s]” who were nonetheless excluded from parole consideration. The Court concluded that article I, section 32(a)(1) was clear concerning its scope regarding offenders who were previously convicted of a registerable sex offense or who were currently convicted of a registerable sex offense that the Department had itself defined as nonviolent. The Court explained that under those regulations, these offenders had been convicted of a nonviolent felony offense and article I, section 32(a)(1) directed that they “shall be eligible for parole consideration.” The Court therefore concluded that this categorical exclusion conflicted with the constitutional directive under article I, section 32(a)(1) that inmates “convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.”

Moreover, the Court stated that had the drafters of Proposition 57, and by extension the voters, intended to exclude inmates from nonviolent offender parole consideration based on prior or current sex offense convictions, “it would have been a simple matter to say so explicitly.” However, the initiative’s language provided no indication that the voters intended to allow the Department to create a wholesale exclusion from parole consideration based on an inmate’s sex offense convictions when the inmate was convicted of a nonviolent felony, and the Court declined to create one.

The Supreme Court emphasized that its determination did not require the release on parole of any inmate as the evaluation of an inmate’s suitability for parole and the processes involved in conducting that evaluation remained squarely within the purview of the Department and the Board of Parole Hearings. The Court added that the Department’s exclusion from parole consideration of inmates currently incarcerated for violent felony sex offenses as defined in Section 667.5(c) was not affected by the Court’s decision here. However, the Department was not permitted to entirely exclude from parole consideration an entire class of inmates when those inmates have been convicted of nonviolent felony offenses. The Supreme Court therefore concluded that “[t]his precondition to parole consideration” was inconsistent with the Constitution as amended by Proposition 57. The Supreme Court accordingly affirmed.

  1. Qualified immunity was granted because Gonzalez v. Spencer did not clearly establish constitutional privacy right in juvenile records.

Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC), 2020 U.S. App. LEXIS 40567 (9th Cir. Dec. 29, 2020)

Facts: Angelina Nunes, individually and as Guardian Ad Litem for her minor children D.X. and L.X., and Emanuel Alves (“Plaintiffs”) brought an action under 42 U.S.C. section 1983 against the County of Stanislaus (“County”) and its attorneys for unlawfully viewing the juvenile records of D.X. and L.X. without first obtaining a court order from the juvenile court, as required under California Welfare & Institutions Code section 827. The defendants moved to dismiss, asserting qualified immunity.

The District Court denied qualified immunity for the defendants with respect to a Fourth Amendment privacy claim based on a violation of Section 827. The District Court held that the dissenting opinion in Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), clarified the Fourth Amendment right implicated by a Section 827 violation. It also concluded that Gonzalez found a viable Fourth Amendment claim when the attorney defending Los Angeles County wrongfully accessed a juvenile case file in violation of Section 827. The defendants appealed the denial of qualified immunity.

Held: The Ninth Circuit Court of Appeals observed that qualified immunity is an affirmative defense that shields public officials facing liability under 42 U.S.C. section 1983 unless “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time” of the violation. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks and citation omitted). A right is clearly established when its “contours [are] sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (internal quotation marks and citation omitted).

The Court observed that Plaintiffs relied solely on Gonzalez in arguing that the defendants’ conduct violated a clearly established right. The Ninth Circuit, however, agreed with the District Court that the Gonzalez per curiam majority opinion did not explain why a violation of Section 827 was sufficient to constitute a violation of the Fourth Amendment. The Ninth Circuit observed that the Gonzalez majority did not even specify that Fourth Amendment rights were at issue, but that notion could only be ascertained from the dissenting opinion. Nor did Gonzalez discuss or cite to any Supreme Court or Ninth Circuit precedent regarding constitutional privacy rights in juvenile records specifically or informational privacy rights generally. The Ninth Circuit stated that Gonzalez merely assumed, without deciding, that Section 827 violation constituted a violation of a federal privacy right.

The Ninth Circuit therefore concluded that the “opaque” opinion in Gonzalez did not clearly establish a constitutional privacy right in juvenile records. Therefore, the Court could not conclude that every reasonable official acting as the defendants did would have known they were violating the constitutional rights of plaintiffs based on Gonzalez. The Ninth Circuit Court of Appeals thus decided that the defendants were thus entitled to qualified immunity, and accordingly reversed and remanded.

[1] Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

[2] Wright v. Beck, 723 Fed. App’x 391, 392 (9th Cir. Dec. 20, 2017).

[3] Id.

[4] See also Tulsa Pro. Collection Servs. v. Pope, 485 U.S. 478 (1988); Dusenbery v. United States, 534 U.S. 161, 167 (2002); United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993).

[5] Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 797 (1983) (citing cases).

[6] See Sniadick v. Family Finance Corp., 395 U.S. 337, 342 (1969).

[7] See City of W. Covina v. Perkins, 525 U.S. 234, 240-241 (1999).

[8] Menefee & Son v. Dep’t of Food & Agric., 199 Cal. App. 3d 774, 245 Cal. Rptr. 166, 170 (3rd Dist. 1988) (“[A]t a minimum, due process requires notice and an opportunity for a hearing.”); Conservatorship of Moore, 185 Cal. App. 3d 718, 229 Cal. Rptr. 875, 879 (4th Dist. 1986) (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action . . . .”) (quoting Mullane, 339 U.S. at 314).

[9] According to the trial court, Scarbrough’s search conditions required that she “submit to search of drugs, paraphernalia; [her] person, property, residence, vehicle, or any container under [her] control.”

[10] Although Dixon had reported the Oakdale Apartments as his residence to his probation officer, Officer Ochoa did not know this nor not ask the probation officer what address he had on file. Officer Ochoa’s search of other databases for Dixon’s residence resulted in several different addresses but none that matched the Oakdale Apartments.

[11] The Court noted that the First Amendment has been made applicable to the States by incorporation into the Fourteenth Amendment.

[12] PEPRA became effective January 1, 2013.

[13] See Hipsher v. Los Angeles County Employees Retirement Assn., 24 Cal.App.5th 740, 756, 762–767 (2018) (“Hipsher I”), review granted Sept. 12, 2018, S250244.

[14] The Second District observed that the “California Rule” refers to the scope of constitutional protections afforded public pension rights established by Allen v. City of Long Beach 45 Cal.2d 128 (1955) (“Allen I”) and other Supreme Court decisions.

[15] Hipsher I, supra, 24 Cal.App.5th at p. 752, review granted, citing Kern v. City of Long Beach, 29 Cal.2d 848, 853 (1947).

[16] Alameda County, supra, 9 Cal.5th at p. 1100, quoting Kern, supra, 29 Cal.2d at p. 855.

[17] See Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.

[18] Swanson v. Morongo Unified School Dist., 232 Cal.App.4th 954, 971 (4th Dist. 2014).

[19] See Scotch, supra, 173 Cal.App.4th at p. 1019: “Put another way, if this case were presented to a jury, what remedy could it provide? How was [the plaintiff employee] damaged by any failure by [his employer] to engage in the interactive process in good faith? The FEHA has a remedial rather than punitive purpose.”

[20] See Woods v. Graphic Communications, 925 F.2d 1195, 1198, 1202 (9th Cir. 1991), concluding the harassment was sufficiently severe or pervasive, even though the plaintiff “heard about most of the incidents through other employees,” rather than being directly targeted.

[21] See Ellison v. Brady, 924 F.2d 872, 874, 879, 880 (9th Cir. 1991) for similar circumstances.

[22] Officer Meyer’s body camera recorded subsequent events.

[23] Later determined to be a phone.

[24] Pitchess v. Superior Court, 11 Cal.3d 531 (1974).

[25] Cal. Code Regs., tit. 15, section 3491(b)(3) [governing determinately sentenced offenders]; see also id., section 3496(b) [governing indeterminately sentenced offenders].

[26] Cal. Code Regs., sections 3490(c), 3495(c).

[27] Cal. Code Regs., sections 3490(a), 3491(a), (b), 3495(a), 3496(a), (b).