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A. Killgore decision re massage establishments and closely regulated inspections.

Killgore v. City of S. El Monte, 2021 U.S. App. LEXIS 20244 (9th Cir. July 8, 2021)

Facts: The Ninth Circuit Court of Appeals has recently reaffirmed a decades old California state appellate court decision that held that the massage industry is closely regulated and a warrantless administrative inspection of massage parlors under ordinances that meet certain factors do not violate the Fourth Amendment.

Killgore v. City of S. El Monte (2021) analyzed whether massage parlors were closely regulated and considered the City of South El Monte’s (“City”) ordinance and Conditional Use Permit (“CUP”) conditions. The Killgore court found that both the ordinance and CUP conditions illustrated the City’s heavy regulation of this industry and the diminished expectation of privacy of massage establishment owners.

Held: “[W]arrantless searches ‘are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States (1967) 389 U.S. 347, 357. This general prohibition against warrantless searches extends to commercial businesses. United States v. 4,432 Mastercases of Cigarettes (2006) 448 F.3d 1168, 1176. “The United States Supreme Court, however, has carved out a limited number of contexts within which a warrant is not required,” such as administrative searches of “‘closely regulated’ industries.” Id.

To determine whether an industry is “closely regulated,” a court would look to “the pervasiveness and regularity of the . . . regulation and the effect of such regulation upon an owner’s expectation of privacy.” Id. “We do not require a warrant in such situations because the . . . regulatory presence is sufficiently comprehensive and defined that the owner of the commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Id.

Over 30 years ago, a California state appellate court held that the massage industry is pervasively regulated and that an ordinance permitting warrantless inspections of massage parlors did not violate the Fourth Amendment. Kim v. Dolch (4th Dist. 1985) 173 Cal. App. 3d 736. Concluding “that the expectation of privacy that the owner of commercial property enjoys . . . differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections,” the court upheld the “comprehensive” ordinance as reasonable. Id. at 250-51.

Since Dolch, California has enacted the Massage Therapy Act (the “Act”), a comprehensive certification and regulatory scheme adopted in 2014, which sets forth several requirements and authorizes local governments to establish their own regulations. Cal. Bus. & Prof. Code sections 4600-21. The Act, which builds upon a more than 40-year-old licensing system in California, vests local governments with the power to “manage [massage] establishments in the best interests of the individual community.” Id., Section 4600.5(b).

The Killgore court affirmed that the massage industry is “closely regulated.” The court also found that the massage parlor at issue was regulated by the Act and further regulated by the City’s ordinance and CUP conditions, conditions the court found to be reasonable.

The Killgore court then applied the Burger test to determine whether a warrantless inspection of a commercial business in a “closely regulated” industry is reasonable under the Fourth Amendment. New York v. Burger (1987) 482 U.S. 691. Under Burger, these warrantless searches must meet three conditions: (1) “there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made;” (2) “the warrantless inspections must be necessary to further [the] regulatory scheme;” and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” Id. at 702-03.

The Killgore court found that all three Burger requirements were met. First, there is no question that curtailing prostitution and human trafficking is a substantial governmental interest. Second, the warrant exception is necessary to further the regulatory scheme considering the potential ease of concealing violations. The Act, Ordinance, and CUP conditions contain a variety of internal facility requirements, including a prohibition on unlicensed massage therapists, signage requirements, hygiene standards, a prohibition on sexual activities on the premises, and restrictions on permissible attire. The court noted that these sorts of violations could go easily undetected, and a warrant requirement would only frustrate the government’s ability to discover them. See 4,432 Mastercases of Cigarettes, 448 F.3d at 1179 (noting that “advance notice of inspections could permit those violating [the regulations] ‘to temporarily correct violations and frustrate enforcement efforts’”; Argent Chem. Lab’ys, Inc. 93 F.3d at 576 (“[F]orcing inspectors to obtain a warrant before inspection might frustrate the purpose of the Act by alerting owners to inspections.”).

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 12, available at


B. District Court properly dismissed Section 1983 excessive force claim after criminal jury convicted plaintiff of violating Penal Code section 148.

Lemos v. Cnty. of Sonoma, 2021 U.S. App. LEXIS 21108 (9th Cir. July 16, 2021)

Facts: In June 2015, County of Sonoma Deputy Marcus Holton stopped at the home of Gabbi Lemos to investigate what he believed was a domestic dispute involving Karli Labruzzi and Darien Balestrini. After speaking with Balestrini, Holton walked around to the passenger side of a truck where Labruzzi was sitting. Holton encountered Labruzzi, Gabbi Lemos, Lemos’s mother, and Lemos’s sister as he was at the passenger side door. Holton asked Lemos, her mother, and sister to step away from the vehicle so that Holton could speak with Labruzzi. While speaking with Labruzzi, Holton attempted to open the truck door. Lemos then inserted herself between Holton and the open truck door while pointing her finger at Holton and yelling that Holton was not allowed to go in the truck. Holton then pushed Lemos away from him with his right hand. Holton closed the truck door and requested backup when Lemos, her mother and her sister did not comply with Horton’s repeated requests to calm down. After backup arrived, Holton separated Lemos’s mother from the group to explain the investigation, but Lemos’s mother returned to the group and told Lemos to go into the house. Lemos turned to walk toward the house. As Lemos walked past Holton, Holton told her, “Hey, come here. Hey.” Lemos did not respond and continued to walk away. Holton then ran up behind Lemos, grabbed her, and brought her to the ground.

In November 2015, Lemos filed a complaint in federal District Court asserting an excessive force claim under 42 U.S.C. section 1983, alleging Holton used excessive force in stopping her from fleeing as he attempted to arrest her. In April 2016, the District Court stayed the federal action during pendency of state criminal proceedings, in which Lemos had been charged with resisting, obstructing, or delaying a peace officer in violation of California Penal Code section 148(a)(1).

In August 2016, a jury was instructed that Lemos could be found guilty of violating state law under Section 148(a)(1) and described four elements the jury must find beyond a reasonable doubt to find Lemos guilty under Section 148(a)(1). The jury ultimately convicted Lemos for violating Section 148(a)(1) when she resisted, delayed, or obstructed Deputy Holton while he was conducting his duties as an officer.

In May 2018, the District Court lifted the stay. The District Court granted County of Sonoma, Sheriff Steve Freitas, and Holton’s motion for summary judgment. The District Court held that Lemos’s 42 U.S.C. Section 1983 excessive force claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994). Lemos appealed.

Held: The Ninth Circuit Court of Appeals affirmed. The Court observed that under Heck, “if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which [S]ection 1983 damages are sought, the 1983 action must be dismissed.”[1] However, a plaintiff’s allegation of excessive force by a police officer is not barred by Heck if the officer’s conduct is “distinct temporally or spatially from the factual basis for the [plaintiff’s] conviction.” Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (citing Smith v. City of Hemet, 394 F.3d 689, 699 (9th Cir.2005) (en banc)).

Lemon argued that jurors in the criminal trial did not indicate on the verdict form whether the jury found Lemos guilty of one or all four of the theories of liability given in the jury instructions. Lemos contended that if the jury did not find her guilty of pulling away from Holton when he attempted to restrain her (the fourth theory of liability), then her conviction for Section 148(a)(1) violations and her 42 U.S.C. section 1983 claim were not necessarily based on the same transaction. Lemos argued that the District Court therefore erred in ruling that the Section 1983 claim was barred by Heck.

The Ninth Circuit held that, based on the jury instructions and evidence of record before it, the jury verdict established that appellant resisted, and the deputy’s conduct was lawful throughout the encounter. The Court explained that the jury instructions required that the jury find that Deputy Holton was “lawfully performing or attempting to perform his duties as a peace officer,” and the instructions explained that an officer “is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.” The Court also explained that the lawfulness of an officer’s conduct was an essential element of the offense of resisting, delaying, or obstructing a peace officer under Section 148(a)(1). Moreover, the jury unanimously found that Holton acted lawfully throughout the continuous chain of events, even when he placed Lemos under arrest.

The Ninth Circuit held that the record compelled a finding that the jury determined that Deputy Holton acted within the scope of his duties without the use of excessive force, and that Lemos sought to demonstrate that the same conduct constituted excessive force. The Court of Appeals stated that Lemos’s jury considered all parties’ evidence of relevant conduct, including the officers’ body camera footage which was part of the record. Here, as in Beets, the jury was instructed that “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.” Moreover, the jury was told that it could convict Lemos only if “Deputy Marcus Holton was a peace officer lawfully performing or attempting to perform his duties as a peace officer.”

The Ninth Circuit therefore concluded that the District Court appropriately considered summary disposition of remaining legal issues under Heck and its progeny. In reliance, the Court of Appeals found that Smith and Beets controlled application of the Heck bar as found by the District Court and affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 13, available at

C. Armed police officer’s questioning of a minor inside his home at 6 a.m. after learning he stabbed victim constituted custodial interrogation.

In re Matthew W., 66 Cal. App. 5th 392 (1st Dist. 2021)

Facts: In January 2020, Ralph C. was stabbed by defendant 17-year-old Matthew W. after Ralph had approached and confronted Matthew’s friend, Andrew. Napa Police Department Detective Brendt Keown testified that about 6:00 a.m. on the morning of the incident, he spoke with defendant in his home about the incident with Ralph. Keown did not tell defendant he was a suspect or that he was under arrest. Nor did he give defendant a Miranda advisement. Keown said that defendant was not under arrest and that he was there just to ask defendant some questions. Defendant was not handcuffed and no officer drew a gun during the questioning. During the questioning, defendant admitted that he stabbed Ralph. Defendant was arrested.

The Napa County District Attorney filed a juvenile wardship petition alleging in part that defendant had committed assault with a deadly weapon. The juvenile court found this allegation true and declared defendant a ward of the court and placed him on probation with various terms and conditions. Defendant appealed, arguing in part that the juvenile court improperly admitted his prearrest statements to police, which were made during a custodial interrogation in violation of Miranda v. Arizona.[2]

Held: The California First District Court of Appeal explained that custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? (In re I.F. (3rd Dist. 2018) 20 Cal.App.5th 735, 759.) The Court added that the totality of the circumstances surrounding an incident must be considered as a whole in this determination.

The Court noted that defendant was told at the start of the interrogation that he was not under arrest, and the police officers who were present did not handcuff him or unholster their weapons – which pointed to lack of custody. However, many other circumstances supported a finding that the police interrogation was custodial. The interrogation was initiated by police, who had just heard from Andrew that defendant stabbed Ralph. Thus, the purpose of the interrogation was to question defendant as a suspect in the stabbing.[3] The record evidence regarding Keown’s prearrest questioning of defendant revealed that from the initial patdown through the entire interrogation Keown was attempting to get defendant to admit that he stabbed Ralph and to provide additional incriminating information.[4] Five officers arrived at defendant’s home at 6:00 a.m., on the morning of the incident, while it was still dark outside. Although defendant’s mother consented to police questioning of defendant, defendant—who was in bed when the officers arrived—did not. After being roused from his bed, defendant was patsearched for weapons before being directed to sit at his kitchen table. Moreover, at least two uniformed police officers and Keown—who wore a police vest—remained in the home throughout the interrogation. All of them were armed with guns. During the questioning, one officer stood behind defendant and a second officer stood beside the front door of the home, which was next to the kitchen, while Keown sat across from defendant at the kitchen table.[5] While Keown initially told defendant he was not under arrest, the officer never said that defendant was free to terminate the interrogation or leave at any time.[6] The Court stated that considering that defendant was still a minor and living at home with his mother, it was particularly significant that when his mother asked to be present for the questioning, Keown denied her request.[7] At the end of the interrogation, defendant was arrested.

The Court stated that the circumstances of the interrogation of defendant indicated that, like the defendant in U.S. v. Craighead,[8] defendant’s home was transformed into a “police-dominated atmosphere” during the interrogation, which led defendant to reasonably believe he was not free to leave his kitchen or otherwise end the interrogation.[9] The Court explained that taken together, these circumstances would have suggested to defendant that he was not free to leave the kitchen or the house itself. Considering the interplay and combined effect of all the circumstances surrounding the police interrogation, the First District found, on balance, that the police officers created a coercive atmosphere such that a reasonable 17-year-old would have experienced a restraint tantamount to arrest. The Court thus concluded that Defendant’s pre-arrest statements to police were made during a custodial interrogation without the required Miranda advisements, and that the juvenile court erred in admitting evidence related to the pre-arrest interrogation of defendant.

The Court also determined the juvenile court’s error in admitting defendant’s pre-arrest statements was prejudicial. Because the Court of Appeal was unable to confidently say that the evidence of guilt was so overwhelming that the juvenile court’s true findings were surely unattributable to the admission of the statements, the error was not harmless beyond a reasonable doubt. The First District accordingly reversed the juvenile court’s jurisdictional findings and dispositional order.

D. Miranda advisements were not required for defendant who voluntarily went to police station to take polygraph examination, was told he was free to leave, and was not arrested after confessing.

People v. Potter, 66 Cal. App. 5th 528 (3rd Dist. 2021)

Facts: In March 2017, H., the daughter of defendant Robert William Potter, disclosed to her mother that defendant had sexually abused H. when she was five years old. H. provided additional details regarding that abuse to a police officer who responded to take her statement. In December 2017, defendant had a phone conversation with Detective Jenny Wirtz in which the detective told defendant that he was suspected of having molested his daughter. After repeatedly denying having abused his daughter, defendant agreed to come to the police station to take a polygraph examination.

Two weeks after this phone conversation, defendant came on his own to the police station for the polygraph examination. Once inside the interview room, Detective Konrad VonSchoech told defendant that the interview was completely voluntary, that defendant did not have to talk if he did not want, and defendant could leave at any time through a closed, but unlocked door. Defendant was repeatedly told that he could walk out anytime he wanted. During the interview, the detective made statements indicating belief in the daughter’s allegations and urging defendant to tell the truth. Defendant admitted abusing H. during this interview. During subsequent separate interviews with Detective Wirtz, the detective also informed defendant that the door was unlocked and defendant was free to leave before proceeding. Defendant also admitted abusing H. in these interviews. Defendant was allowed to leave the police station after these interviews were completed. He was arrested three days later.

Defendant moved to exclude his statements made at the police station under Miranda v. Arizona.[10] He argued that he was interrogated by Detectives VonSchoech and Wirtz while in custody at the police station, and therefore, Miranda warnings were required. The trial court denied the motion. At trial, H. testified to the details of the abuse. Defendant was convicted of one count of oral copulation with a child 10 years of age or younger, and sentenced to serve an indeterminate term of 15 years to life in state prison. Defendant appealed, arguing among other things that his confession should have been excluded because it was unlawfully obtained during custodial interrogation without Miranda warnings.

Held: The California Third District of Appeal explained that “[a]n interrogation is custodial, for purposes of requiring advisements under Miranda, when ‘a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.’ [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood his [or her] situation. [Citation.] All the circumstances of the interrogation are relevant to this inquiry…. [Citation.]” (People v. Moore (2011) 51 Cal.4th 386, 394–395.) The Court explained that “Miranda warnings are not required ‘simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.’ [Citation.] While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person’s freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody. [Citation.] (Id. at pp. 402–403.) 

The Third District found that Moore, in which the California Supreme Court held that an interrogation with similar circumstances was not custodial within the meaning of Miranda, controlled the outcome in the case here. The Court of Appeal explained that as in Moore, defendant went to the police station voluntarily. He did so to take a polygraph examination, apparently in the hope of passing the examination and thereby convincing law enforcement that he did not molest his daughter.[11] Moreover, unlike Moore, where the defendant was driven to the station in a patrol car after undergoing an initial interview at the scene, here, defendant came to the station on his own, having had two weeks after speaking with Detective Wirtz on the phone to contemplate the decision to come to the police station to speak to police and undergo a polygraph examination. He then voluntarily chose to do so.

Moreover, the Court noted that defendant was repeatedly told that he was free to leave at any time; defendant was informed that the door was unlocked; defendant was not handcuffed nor otherwise restrained; the tone and tenor of the questioning would not have caused a reasonable person in defendant’s position to have believed he was not free to terminate the interviews and leave the police station; and defendant was not arrested at the end and allowed to leave the station.[12]

The Third District Court of Appeal concluded that because defendant was not in custody when he was interrogated at the police station, Miranda advisements were not required, and accordingly affirmed the trial court’s denial of defendant’s motion to exclude his statements under Miranda.

E. Qualified immunity was reversed because plaintiff had clearly established constitutional right to proper medical screening to ensure medically appropriate protocol was initiated.

Gordon v. Cnty. of Orange, 2021 U.S. App. LEXIS 22055 (9th Cir. July 26, 2021)

Facts: In September 2013, Matthew Gordon was arrested on heroin-related charges and booked as a pretrial detainee into the Orange County Central Men’s Jail. During his intake at approximately 6:47 p.m. that day, Gordon informed defendant Debbie Finley, a registered nurse, of his 3-grams-a-day heroin habit. Two detoxification protocols existed for purposes of assessing inmates suffering from substance withdrawal: (1) the Clinical Institute Withdrawal Assessment for Alcohol (“CIWA”), and (2) the Clinical Opiate Withdrawal Scale (“COWS”). Despite Gordon reporting his heroin use, Nurse Finley, in accordance with a consulting physician’s orders, used a CIWA form to assess his symptoms rather than engage in the COWS protocol. Gordon ultimately died, within 30 hours after he was admitted.

Matthew’s mother, plaintiff Mary Gordon, alleged 42 U.S.C. section 1983 claims of inadequate medical care under the due process clause of the Fourteenth Amendment. In a previous appeal based on Matthew’s death, the Ninth Circuit Court of Appeals had held that inadequate medical care claims brought by pretrial detainees require a showing of objective, not subjective, deliberate indifference. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (“Gordon I”). After Gordon I, the case was remanded, and the District Court allowed additional expert discovery. The District Court ultimately granted summary judgment for the individual defendants, including Nurse Finley, based on qualified immunity, and for the County of Orange on the ground that the plaintiff could not establish a custom or practice sufficient under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Plaintiff appealed.

Held: The Ninth Circuit explained that in evaluating a grant of qualified immunity, a court considers whether (1) the state actor’s conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged misconduct.[13] The Court added that whether a constitutional right is clearly established is purely a question of law for the court to decide. See Elder v. Holloway, 510 U.S. 510, 511 (1994).

Plaintiff alleged that Matthew Gordon “had a clearly established right under the Due Process Clause to adequate medical care for his heroin withdrawal.” The Ninth Circuit[14] observed that in Gibson v. County of Washoe, 290 F.3d 1175, 1194-96 (9th Cir. 2002), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016), the Ninth Circuit had determined that a jury could find a constitutional violation by an intake nurse who “knew that [the plaintiff] was in the throes of a manic state” but “fail[ed] to provide for the identification of [his urgent mental health] needs.” Id. at 1193-96. The Ninth Circuit here explained that Gibson has been recognized for the proposition that the “failure to medically screen new inmates may constitute deliberate indifference to medical needs.” M.H. v. County of Alameda, 62 F. Supp. 3d 1049, 1077 (N.D. Cal. 2014). The Court added that principles drawn from Snow v. McDaniel[15] and Gibson, and by extension Liscio v. Warren,[16] demonstrated that, at a minimum, medical personnel at jail facilities are required to screen pretrial detainees for critical medical needs. Thus, at the time of the incident, Gordon had a clearly established constitutional right to have a proper medical screen conducted to ensure the medically appropriate protocol was initiated.

The Ninth Circuit concluded that summary judgment was not proper as to Nurse Finley, because the available law at the time of the incident clearly established Matthew Gordon’s constitutional rights to proper medical screening to ensure medically appropriate protocol was initiated. Given that the County instituted two screening forms to ensure the initiation of a medically appropriate protocol, the Court reversed as to Nurse Finley, and remanded the case for a factual analysis of the remaining prong of the qualified immunity test.


A. Collective bargaining agreement must explicitly provide for survival of expired contract rights.

NLRB v. Nexstar Broad., Inc., 2021 U.S. App. LEXIS 20526 (9th Cir. July 12, 2021)

Facts: The management of a television station and the union representing the station’s employees entered into a collective bargaining agreement (“CBA”). The union and management unsuccessfully attempted to negotiate a new agreement, and the CBA expired. Management then made two unilateral changes to the existing terms and conditions of employment: management began requiring employees to complete an annual motor vehicle and driving history background check; and management began posting employee work schedules two weeks in advance after it had previously posted schedules four months in advance.

The union filed charges with the National Labor Relations Board (“NLRB”) alleging that these two unilateral changes to existing terms and conditions of employment constituted unfair labor practices. An administrative law judge held that the unilateral changes violated Subsections 8(a)(1) and (5) of the National Labor Relations Act (“NLRA”), 29 U.S.C. section 158(a)(1), (5). Subsections 8(a)(1) and (5) of the NLRA provide that unilateral changes made before bargaining over a new CBA reaches an impasse are unfair labor practices.

The NLRB determined that “provisions in an expired collective-bargaining agreement do not cover postexpiration unilateral changes unless the agreement contained language explicitly providing that the relevant provision would survive contract expiration.” Finding no express language in the CBA permitting the changes, the NLRB found that management was required to “maintain the status quo” during negotiations. The NLRB ordered management to rescind the changes, bargain with the union before imposing further changes, and post remedial notices. The NLRB then petitioned the Ninth Circuit Court of Appeals for enforcement of those orders.

Held: The Ninth Circuit observed that the NLRB’s interpretation of the NLRA “is accorded considerable deference as long as it is ‘rational and consistent’ with the statute.” Local Joint Exec. Bd. of Las Vegas, 515 F.3d 942, 945 (9th Cir. 2008) (quoting NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir. 1999)). NLRB interpretation of a CBA is similarly “entitled to deference” if it is “reasonable and not inconsistent with the [NLRA’s] policies.” NLRB v. Int’l Brotherhood of Elec. Workers, Local 11, 772 F.2d 571, 575 (9th Cir. 1985).

Agreeing with the NLRB, the Court rejected management’s argument that it was entitled to make changes to the terms and conditions of employment under the “contract coverage” doctrine. The Court of Appeals held that the NLRB’s decision was rational and consistent with the NLRA where the Board applied its longstanding rule that after a CBA has expired, unilateral changes by management are permissible during bargaining only if the CBA contained language explicitly providing that the relevant provision permitting such a change would survive contract expiration.[17] The Ninth Circuit concluded that there was no explicit language in the CBA to allow management to make unilateral changes to terms and conditions of employment in the post-expiration period.

The Court also determined that the union had not waived its right to bargain over these terms and conditions of employment, and the contract coverage standard did not apply to permit such changes after expiration of the contract because the CBA did not expressly permit these changes. Thus, the employer was required to maintain the status quo during contract negotiations.

Accordingly, the Ninth Circuit Court of Appeals granted the NLRB’s petition for enforcement of its decision holding that management committed unfair labor practices under subsections 8(a)(1) and (5) of the NLRA.

B. Former employee need not exhaust administrative remedies when person who may be final administrative decisionmaker is personally and antagonistically involved; excessive damages overturned.

Briley v. City of W. Covina, 66 Cal. App. 5th 119 (2nd Dist. 2021)

Facts: Jason Briley worked for the City of West Covina (the “City”), as a deputy fire marshal. During his employment, Briley complained that various City officials, including his then-direct superior Larry Whithorn, had ignored his reports of safety issues and engaged in misconduct. He later complained that Whithorn and others had retaliated against him in various ways. The City commissioned an investigation of Briley’s claims but ultimately concluded they were unfounded. While this investigation was still pending, the City commissioned an investigation of allegations that Briley had repeatedly engaged in misconduct and unprofessional behavior. At the conclusion of this second investigation, which confirmed the allegations, Whithorn initiated Briley’s termination, and another City official upheld the decision.

Briley contended his termination was the result of retaliation for his prior complaints and initiated an appeal to the City’s human resources commission (“HR Commission”). The commission was to hold an evidentiary hearing and deliver its findings and recommendations to Whithorn and City Manager Chris Freeland, who were the ultimate decision makers in the appeal. However, Briley later abandoned the appeal, asserting, among other things, that the commission had no jurisdiction to consider his retaliation claims, and that the appeal procedure was futile and violated due process because Whithorn and Freeland were biased against him and had prejudged his claims. He then filed an action against the City, alleging retaliation under Labor Code section 1102.5.

The City asked the trial court to dismiss Briley’s action for failure to exhaust available administrative remedies, but the trial court concluded that an appeal to the HR Commission was unnecessary. The trial court found that the commission had no authority to consider Briley’s retaliation claim, and that an appeal would have been futile because Whithorn and Freeland had been personally embroiled in appellant Briley’s matter. The case proceeded to trial, and the jury found for Briley and awarded him about $4 million in damages (including $2 million in past noneconomic damages and $1.5 million in future noneconomic damages). The trial court later denied the City’s motion for a new trial. The City appealed, arguing in part that the trial court erred in concluding Briley was not required to exhaust his administrative remedies, specifically his administrative appeal to the HR Commission.

Held: The California Second District Court of Appeal explained that under the exhaustion doctrine, a party must generally exhaust all available, nonduplicative administrative review procedures before resorting to the courts. (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) However, under one of several recognized exceptions to the doctrine, the exhaustion requirement is excused if the relevant administrative remedy fails to satisfy the standards of due process. Significant here, due process entitles a person seeking administrative review to “‘a reasonably impartial, noninvolved reviewer.’” (Burrell v. City of Los Angeles (2nd Dist. 1989) 209 Cal.App.3d 568, 581, quoting Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736–737.) Moreover, “‘the probability of actual bias on the part of the … decisionmaker is too high to be constitutionally tolerable’” (Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 834) when the decision maker “has been the target of personal abuse … from the party before him [or her]” (ibid.), or “has become personally ‘embroiled’ in the controversy to be decided” (Mennig v. City Council (2nd Dist. 1978) 86 Cal.App.3d 341, 351, quoting Taylor v. Hayes (1974) 418 U.S. 488, 501–503).

The Second District observed that Whithorn was personally embroiled in the controversy and that there was significant animosity between Whithorn and Briley stemming from the same controversy. The Court concluded that Whithorn’s involvement in the underlying dispute, on one hand, and his expected role in deciding Briley’s appeal, on the other, violated the requirements of due process. The Court held that as a matter of due process, an official whose prior dealings with the employee have created substantial animosity and whose own conduct and character are central to the proceeding may not serve as a decision maker. Under the totality of the circumstances here, the Second District Court of Appeal concluded that Briley was excused from exhausting the City’s administrative appeal procedure, and affirmed with regards to this issue. The City is still considering whether to further appeal on this issue.

The City also argued that the trial court had abused its discretion in failing to reduce the jury’s excessive awards for noneconomic damages. The City was successful on its appeal as to this portion of the judgment. The Court of Appeal found that the amount of damages awarded to Briley by the jury for emotional distress — $3.5 million, was grossly excessive and vacated this portion of the verdict.



Public interest in not disclosing exact location of COVID-19 outbreaks outweighed public interest in disclosure.

Voice of San Diego v. Superior Court of San Diego, 2021 Cal. App. LEXIS 581 (4th Dist. July 16, 2021)

Facts: Voice of San Diego, KPBS Public Broadcasting, and San Diego Union Tribune are news media organizations. The news organizations submitted requests under the California Public Records Act (Government Code section 6250 et seq.; “PRA”) seeking to obtain records from the County of San Diego (“County”) pertaining to COVID-19 outbreaks. Unsatisfied with certain redactions made in the County’s responses, the three news organizations (collectively, “petitioners”) filed a second amended petition for writ of mandate seeking to obtain unredacted records from the County that revealed the exact location of disease outbreaks during the pandemic. Specifically, the County maintains a spreadsheet showing each outbreak of COVID-19 in the County, which includes the applicable dates of the outbreak, the city where it occurred, the number of people involved, and whether the outbreak occurred in a community setting, a skilled nursing facility or a non-skilled congregate living facility. When releasing the spreadsheet to the public, the County redacts the columns that would show the specific name and address of each outbreak location (though the spreadsheet shows the type of location where the outbreak occurred – restaurant, gym residence, etc.). Petitioners requested injunctive relief that the trial court order the County to produce the spreadsheet with the two columns under the headings ‘Location’ and ‘Location Address’ unredacted, and declaratory relief with respect to the public’s right to such information from the County under the PRA.

The trial court denied the petition. Petitioners filed a petition for extraordinary writ to obtain review of the trial court’s denial, arguing that the trial court improperly concluded that the County was entitled to redact information about the exact location of the outbreaks. The Fourth District Court of Appeal issued an order summarily denying the petition. The California Supreme Court transferred the matter back to Fourth District with directions to issue an order to show cause why the relief sought in the writ petition should not be granted. The Fourth District issued the order, received briefing, and held oral argument.

Held: The Fourth District Court of Appeal concluded that the County properly withheld the specific location of COVID-19 outbreaks under the PRA’s catchall exemption in Section 6255(a), which allows a public agency to withhold a public record when it meets its burden to prove “on the facts of the particular case [that] the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Section 6255(a).) The Court found that under the catchall exemption, the County had met its burden to prove that the public interest in nondisclosure clearly outweighed the public interest in disclosure. Among other things, the trial court noted the declaration of the County’s public health officer, Dr. Wilma Wooten, that disclosing the exact name and address of an outbreak location would have a chilling effect on the public’s willingness to cooperate with contact tracing efforts. Dr. Wooten’s declaration was uncontradicted in establishing that “revealing outbreak location information is likely to inhibit business owners and other individuals from being forthcoming when reporting outbreaks and responding to contact tracing information requests.” Further, the trial court noted that “it is undisputed that Dr. Wooten is an expert in the field of public health, and more specifically combating a communitywide outbreak of a contagious disease.”

The Fourth District stated that the United States Supreme Court recently observed, as members of the judiciary, judges “are not public health experts, and…should respect the judgment of those with special expertise and responsibility in this area.” (Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 141 S.Ct. 63, 68) Applying that approach, the Fourth District credited Dr. Wooten’s opinion and therefore rejected petitioners’ contention that the County’s concerns with releasing the “Location” and “Location Address” information on the Confirmed Outbreaks Spreadsheet were too vague and speculative under the PRA’s catchall exemption to clearly outweigh the public interest in disclosure. Accordingly, the Fourth District denied the petition for an extraordinary writ.



A. CDCR’s regulations excluding mixed-offense inmates who are currently serving a term for a violent felony offense from nonviolent parole consideration are “a reasonable interpretation” of constitutional provision mandating nonviolent parole consideration.

In re Guice, 2021 Cal. App. LEXIS 595 (6th Dist. July 21, 2021)

Facts: Proposition 57, the Public Safety and Rehabilitation Act of 2016, was approved by voters in November 2016. The proposition amended the California Constitution to provide 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).) Section 32 does not define the phrase “convicted of a nonviolent felony offense.” Section 32 directs the California Department of Corrections and Rehabilitation (“CDCR”) to “adopt regulations in furtherance of these provisions” and to “certify that these regulations protect and enhance public safety.”[18] CDCR regulations adopted in furtherance of Section 32 exclude from nonviolent parole consideration any inmate who is “currently serving a term of incarceration for a ‘violent felony.’” (Cal. Code Regs., tit. 15, Section 3490(a)(5).)

In 2018, CDCR denied Stephen Guice’s request for nonviolent parole consideration because he did not qualify as a nonviolent offender under California Code of Regulations, title 15, section 3490 based on his consecutive sentence for robbery, a violent felony offense. Guice had been sentenced to an aggregate term of 19 years 4 months, comprised of 10 years for transportation of a controlled substance, 1 year 4 months for evading an officer, 1 year for robbery, and 7 years for sentence enhancements. Thus, Guice was a “mixed-offense” inmate, i.e., an inmate currently convicted of both nonviolent and violent felony offenses and currently serving a term for a violent felony offense.

Guice filed a petition for writ of habeas corpus, but the trial court denied the petition. Guice subsequently petitioned the California Sixth District Court of Appeal for a writ of habeas corpus, again contending that he was eligible for parole consideration under Proposition 57 because his primary offense of transportation of a controlled substance was nonviolent.

Held: The Sixth District Court of Appeal acknowledged that Courts of Appeal have reached different conclusions on the meaning of Section 32 as applied to mixed-offense inmates.[19] The Sixth District explained that although Section 32 clearly mandates nonviolent parole consideration for individuals convicted solely of nonviolent offenses, the fact that the provision does not define the phrase, “convicted of a nonviolent felony offense,” renders it “reasonably susceptible of more than one meaning” when applied to mixed-offense inmates. (Arias v. Superior Court (2009) 46 Cal.4th 969, 979.) Observing that its “primary task here is to ascertain the intent of the electorate” (Id. at pp. 978–979), the Court therefore examined Proposition 57’s ballot materials to ascertain the voters’ intent and whether CDCR’s regulations “constitute a reasonable interpretation of the requirement … 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’” (In re Gadlin (2020) 10 Cal.5th 915, 934).

The Court determined that here, as in the Supreme Court’s decisions in Gadlin and People v. Valencia (2017) 3 Cal.5th 347, neither the measure’s text, the Attorney General’s official summary, nor the Legislative Analyst’s analysis “describe[s] any intention” to amend the Constitution to make individuals currently convicted of nonviolent and violent felony offenses who are currently serving a term for a violent felony offense eligible for nonviolent parole consideration. (Valencia, supra, 3 Cal.5th at p. 357; see also Gadlin, supra, 10 Cal.5th at p. 939.) The Court found that, based on Proposition 57’s text and the ballot materials as a whole, voters clearly did not contemplate that inmates currently serving a term for a violent felony offense would be eligible for nonviolent parole consideration, and Section 32 should not be interpreted to the contrary.[20]

Under the Supreme Court’s guidance in Gadlin and Valencia, based on Proposition 57’s text and the ballot materials as a whole, the Sixth District concluded that CDCR’s regulations excluding mixed-offense inmates who are currently serving a term for a violent felony offense from nonviolent parole consideration were “a reasonable interpretation” of Section 32(a) (Gadlin, supra, at p. 934). Accordingly, the Court of Appeal denied Guice’s petition for writ of habeas corpus.

A dissenting judge disagreed with the majority’s conclusion that Section 32(a)(1)’s text was ambiguous. The dissent would have held that the section’s plain meaning controlled, mandating parole consideration to any person convicted of a nonviolent felony offense who has completed the full term for his or her primary offense. The dissent therefore would grant the petition.

B. When defendant commits crime to benefit umbrella gang, and umbrella gang satisfies primary activities and predicate offense requirements, it is not necessary to establish any connection between subsets of umbrella gang.

People v. Vasquez, 2021 Cal. App. LEXIS 606 (5th Dist. July 27, 2021)

Facts: In February 2017, Francisco Amavisca was shot at a Bakersfield motel and bled to death. An information filed by the Kern County District Attorney charged Guillermo Vasquez and Nicky Diaz Carrillo with, among other things, first degree murder. The information further alleged both defendants were active gang participants who carried out the murder to further the activities of the criminal street gang. (Penal Code section 190.2(a)(22).) The information also alleged that both defendants committed both offenses “for the benefit of, at the direction of, or in association with Sure[ñ]os, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members.” (Section 186.22(b)(1).)

At trial, Officer Barajas testified as the prosecution’s gang expert. He testified that the Mexican Mafia – originally a prison gang – had created a gang structure, using Sureños as their “foot soldiers” “out into the streets.” In Bakersfield, Officer Barajas testified, the Sureño gang has several “subsets.” A subset is a “smaller kind of clique” under the “umbrella” of the Sureños. Officer Barajas testified that, in his opinion, Carrillo was a member of the Sureño gang on the day Amavisca was killed. Officer Barajas’s opinion was based on prior police contacts, gang apparel, self-admissions, and tattoos. Officer Barajas also opined that Vasquez was an active member of the Sureños on the day of Amavisca’s killing. That opinion was based on the surveillance video, tattoos, prior contacts, and prior weapons possession. Considering the prosecution’s theory that defendants shot Amavisca on the motel grounds, Barajas opined that such a crime would have been committed for the benefit of, at the direction of, and in association with a street gang.

A jury convicted both defendants of first-degree murder, and found true the gang enhancement. The trial court sentenced Carrillo to 25 years to life in prison, plus 25 years to life. Carrillo appealed.

Held: The California Fifth District Court of Appeal explained that after establishing the existence of a gang under the Street Terrorism Enforcement and Protection Act (Penal Code section 186.20 et seq.),[21] the prosecution, in order to establish the gang enhancement, must then show that the relevant crimes were “committed ‘for the benefit of, at the direction of, or in association with’” the criminal street gang.[22] Carrillo argued that the gang enhancement was not supported by substantial evidence. Specifically, he argued that because the prosecution’s theory was that the gang the defendants benefitted for purposes of the enhancement was the broader Sureños gang; under People v. Prunty (2015) 62 Cal.4th 59, the prosecution had to show a connection between the local subsets and the Sureños. Carrillo contended the prosecution failed to show this requisite connection.

The Court of Appeal rejected Carrillo’s legal premise. The Court explained that the prosecution did not have to show a connection between the subsets and the broader Sureño gang, so long as it otherwise showed that the group defendant acted in association with, “the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same.” (Id., at p. 81.)

Here, the Court found there was no violation of the sameness requirement because there was substantial evidence that the gang whose members Carrillo acted in association with, the gang whose members committed the predicate offenses, and the gang whose primary activities were established by expert testimony was one and the same: the broader Sureño gang. Because the prosecution had demonstrated that the broader Sureño gang satisfied all three, it was not required to show a connection between subsets.

While Carrillo asserted that there was evidence that he and Vasquez were members of different Sureño subsets, the Court found that the evidence also showed that, in addition to his membership in a subset, Carrillo was also a member of the umbrella Sureño gang. Moreover, there was clear evidence Carrillo was a Sureño: Officer Barajas’s expert opinion that Carrillo was a Sureño. Carrillo had several gang-related tattoos. While some were associated with a subset, others were associated with the broader Sureño gang. Carrillo had certain specific tattoos associated with the Sureño gang. Carrillo also had a tattoo of the letter “S,” which stood for “South” or “Sur.” The Fifth District accordingly affirmed the lower court’s judgment as to Carrillo.

[1] Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996) (per curiam).

[2] 384 U.S. 436 (1966).

[3] See I.F., at p. 759; see also People v. Aguilera, 51 Cal.App.4th 1151, 1164 (6th Dist. 1996), citing People v. Stansbury, 9 Cal.4th 824, 832 (1995) [fact that police did not view defendant as a suspect and officer told him “he desired to question him as a possible witness” were factors indicating noncustodial interrogation].

[4] See I.F., at p. 775 [during questioning, officers “repeatedly challenged [minor’s] account of the morning of the murder”] and Aguilera, at p. 1164 [“‘[a]ccusatory questioning is more likely to communicate to a reasonable person in the position of the suspect … that he is not free to leave’ than would general and neutral investigative questions”].

[5] See In re Anthony L., 43 Cal.App.5th 438, 447 (1st Dist. 2019) [fact that officers stood near bedroom door during questioning in minor’s bedroom was one factor suggesting minor was in custody during interrogation].

[6] See I.F., supra, 20 Cal.App.5th at p. 772 [officers’ failure to inform 12-year-old child “that he was free to terminate the interview and leave strongly supports the conclusion that the … interview was custodial”].

[7] See U.S. v. Craighead, 539 F.3d 1073, 1087 (2008) [“‘A frequently recurring example of police domination concerns the removal of the suspect from the presence of family, friends, or colleagues who might lend moral support during the questioning and deter a suspect from making inculpatory statements’”].

[8] 539 F.3d 1073 (9th Cir. 2008).

[9] Id., at p. 1084.

[10] 384 U.S. 436 (1966).

[11] For purposes of the Miranda analysis, the Court found no material difference between arriving at the station voluntarily to give a statement (as the Moore defendant had) and doing so to take a polygraph examination, which also involves answering a series of background and potentially incriminating questions.

[12] The Court also noted that the total time of defendant’s interviews (under two hours) was similar to the duration of the interview in Moore.

[13] See Saucier v. Katz, 533 U.S. 194, 200-01 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009).

[14] The Circuit Court initially found that the District Court erred in analyzing the clearly established prong by incorporating a subjective standard, explaining that “[t]he [individual defendant’s] actual subjective appreciation of the risk is not an element of the established-law inquiry.” Sandoval v. County of San Diego, 985 F.3d 657, 678 (9th Cir. 2021).

[15] 681 F.3d 978, 988 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc).

[16] 901 F.2d 274, 276-77 (2nd Cir. 1990), overruled in part on other grounds by Caiozzo v. Koreman, 581 F.3d 63, 66 n.1 (2nd Cir. 2009).

[17] See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 206-07 (1991), determining that CBA terms and conditions continue in effect by operation of the NLRA upon expiration, absent explicit agreement that contract rights and obligations will survive.

[18] Section 32(b).

[19] See In re Mohammad, 42 Cal.App.5th 719 (2nd Dist. 2019) [holding that CDCR’s regulations improperly exclude mixed-offense inmates from nonviolent parole consideration]. See also, however, appellate courts disagreeing with Mohammad’s conclusion in In re Douglas, 62 Cal.App.5th 726 (3rd Dist. 2021), In re Viehmeyer, 62 Cal.App.5th 973 (4th Dist. 2021), and In re Ontiveros, 65 Cal.App.5th 899 (4th Dist. 2021).

[20] See Arias, supra, 46 Cal.4th at p. 979: “‘The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’”

[21] Establishing the existence of a gang requires the prosecution to “prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.).

[22] People v. Gardeley (1996) 14 Cal.4th 605, 609–610, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.