Courtesy of James R. Touchstone, Esq.


A. District Court declines to recognize a per se rule that automatically permits a patsearch for every lawfully detained robbery suspect; specific and articulable facts must support a reasonable suspicion.

In re Jeremiah S., 2019 Cal. App. LEXIS 1033 (1st Dist. Oct. 18, 2019)

Facts: At approximately 11:29 p.m. on July 2, 2018, Officers Bryan Neuerburg and Anthony Halligan were on patrol in San Francisco when they received “a dispatch call for service for a robbery in the area of 51 Market Street.” The officers were dispatched to the area around Pier 19 to look for the two “robbery suspects.” They had been told that a purse and phone had been stolen and that the phone had been tracked to the area near Pier 19. There was no report that any weapon had been used in the incident. The suspects were initially described as “two black male juveniles,” but the description was updated to “young black males approximately in their 20s,” with one suspect wearing a light blue or gray hoodie. The officers noticed juveniles Jeremiah and J.A. walking, and one was wearing what appeared to be a light gray hoodie. The officers followed them for several blocks, driving slowly while they confirmed the description of the suspects. Meanwhile, two other officers who also had been dispatched to the area detained Jeremiah and J.A. Neuerburg and Halligan then arrived on the scene.

Jeremiah complied with an officer’s instructions to face a wall with his legs spread and his arms above his head. Jeremiah made no sudden movements or attempts to run away. Officer Neuerburg did not notice any weapon-like bulges in Jeremiah’s clothing, and there was nothing about Jeremiah’s appearance, behavior, or actions to make him believe that Jeremiah was armed and dangerous. Nevertheless, Neuerburg believed Jeremiah was armed and dangerous because “a robbery occurred” and he knew that “most robberies involve a weapon or most robbers tend to have weapons on their persons.” Neuerburg decided to conduct a pat-down search (“patsearch”). As Officer Neuerburg began his patsearch, he immediately felt two phones in Jeremiah’s pocket. Believing the phones were evidence of the reported robbery, Neuerburg asked if he could take them out of the pocket, and Jeremiah consented. One phone’s background picture and password matched those of the robbery victim’s phone.

An amended wardship petition charged Jeremiah, age 14, with second-degree robbery. Jeremiah moved to suppress the evidence obtained from the patsearch. The juvenile court denied the motion, and found true the allegation that Jeremiah had committed second-degree robbery. The matter was transferred to Alameda County, where a wardship proceeding was already pending, and the juvenile court declared wardship and placed Jeremiah on probation on various terms. Jeremiah appealed from the disposition and jurisdiction orders.

Held: The California First District Court of Appeal explained that the Fourth Amendment of the United States Constitution guarantees the right to be free of unreasonable searches and seizures. Under Terry v. Ohio (392 U.S. 1 (1968)), if an officer has a reasonable suspicion that criminal activity is afoot, the officer may conduct a brief, investigative stop. If the officer conducting the so-called Terry stop believes the suspect is armed and dangerous, the officer may perform a limited search of a person’s outer clothing for weapons, i.e., a patsearch, whether or not the officer has probable cause to arrest.

The “sole justification” of the patsearch “is the protection of the police officer and others nearby.” (Id. at p. 29.) Its purpose “is not to discover evidence of crime, but to allow the officer to pursue his [or her] investigation without fear of violence.” (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.) The validity of a patsearch turns on whether “a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” (Terry, supra, 392 U.S. at p. 27.) The officer conducting the patsearch must provide “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” (Terry, at p. 21.) Although the officer need not be “absolutely certain” the individual is armed, an “inchoate and unparticularized suspicion or ‘hunch’” is insufficient. (Terry, at p. 27.)

The Court observed that four officers were on the scene during the detention of Jeremiah and the other juvenile. No information of any weapon was conveyed to Neuerburg by dispatch. Neither juvenile made any sudden or furtive movements suggestive of weapons. Neuerburg testified that Jeremiah was compliant, had no bulges indicating weapons in his clothing, and that there was nothing indicating that he was armed and dangerous.

The People argued that the patsearch should be upheld due to Officer Neuerburg’s testimony that (1) reasonable suspicion justified Jeremiah’s detention as a suspect in the robbery of a purse and a phone that had just occurred and (2) it was his experience that robbers tend to have weapons. However, the Court observed that Neuerburg articulated no other aspect of the stop that, together with Jeremiah’s status as a robbery suspect, would give rise to a reasonable belief that the officers were dealing with an individual who may be armed and dangerous as required. Indeed, Neuerburg’s testimony supported an opposite view.

Thus, the Court concluded that the record here lacked in specific and articulable facts indicating that Jeremiah might be armed and dangerous, and consequently a patsearch for weapons was an impermissible intrusion under Terry. In reaching its conclusion, the First District specifically declined to recognize a rule that would essentially validate any patsearch of a suspected robber who is lawfully detained following a report of a fresh robbery, regardless of the particular circumstances. Accordingly, the Court reversed the jurisdiction and disposition orders and remanded the matter to the juvenile court for further proceedings.

B. Probable cause existed under the Fourth Amendment for a warrant to search defendant’s home because the supporting affidavit showed that the residence of defendant’s former supervisor had been the object of arson using an accelerant.

People v. Khan, 2019 Cal. App. LEXIS 1053 (6th Dist. Oct. 28, 2019)

Facts: S.S. worked at SAP in 2013 when he met Muhammad Khan, an SAP intern. S.S. later became vice-president of innovations and thereby responsible for getting “HanaHaus” up and running. HanaHaus was a workspace/coffee house geared towards entrepreneurs in the area and a particular vision of an SAP founder. In 2014, S.S. hired Khan as manager of HanaHaus due to Khan’s success as an intern. Khan began working as manager in April 2014, reporting to S.S. Khan worked extremely well in 2014, helped S.S. interact with other parties during the planning and construction phases. Khan went to S.S.’s house on at least one occasion, when S.S. loaned Khan bicycles for use by Khan’s visiting sisters. On Khan’s 2014 performance review, S.S. rated Khan “outstanding” in five of fourteen categories and “successful” on the remaining categories. Sometime in January 2015 or before, S.S. wrote a recommendation in support of Khan’s graduate school application. However, Khan’s performance dropped “quite a bit” by HanaHaus’s opening in March 2015, and “really started to go down” thereafter, according to S.S.

In May 2015, S.S. gave Khan a memo documenting Khan’s poor performance, but Khan did not improve. He continued taking unapproved leaves and vacation time, yet sometimes showed up at HanaHaus while on sick leave. In September or October of 2015, S.S. personally informed Khan that he could not be at HanaHaus while on sick leave. S.S. thought Khan’s attitude in response was “[v]ery aggressive” and “[v]ery arrogant.” The staff reported to S.S. that Khan was at HanaHaus three or four times. S.S. met Khan there and asked him to leave a couple of times. Khan did not appear to be sick on those occasions. Khan did not work most of the time between the end of October 2015 and Thanksgiving. Khan was terminated in December 2015 after S.S. identified Khan as the masked person in security video footage entering HanaHaus and throwing cockroaches inside.

On January 9, 2016, S.S. and his wife awoke to a fire alarm and smoke detector signaling, and they realized their house garage was on fire. They eventually put out the fires, but S.S.’s wife burned her hand. They observed and smelled rags soaked in gasoline had been placed under the garage door and had kept burning during the fire, and gasoline puddled along the length of the garage door that had also kept burning.

S.S. identified Khan as a person of interest. Neighbor security video showed a Cadillac ATS driving to and from the crime scene. Investigators observed that a Cadillac ATS was parked adjacent to Khan’s address, and determined from Zipcar rental records obtained by search warrant that Khan had rented the vehicle from Zipcar. Phone records showed Khan’s last phone call was made to Zipcar. A search warrant was executed at Khan’s residence which led to the discovery of a heat-resistant glove, a package for the glove, and an open cardboard box with a gas can with liquid inside in Khan’s storage shed. A police service dog certified in detecting accelerants, including gasoline, had earlier alerted to three burnt areas along S.S.’s garage. At Khan’s residence, the service dog alerted to a sock and shoe found inside the front doorway, to the box containing the gas can, and separately to the heat-resistant glove. Investigators also found that Khan had purchased a ski mask from Amazon that matched one found on the driveway of S.S.’s home. Khan’s driver’s license was found in the Zipcar Cadillac ATS.

A trial court denied Khan’s motion to traverse the search warrant and suppress evidence on the ground that the underlying affidavit did not establish the required probable cause. After the trial, a jury found Khan guilty of arson of an inhabited structure[1] and found true an enhancement allegation that he committed the arson by use of a device designed to accelerate the fire.[2] Khan was sentenced to a total term of nine years. He appealed.

Held: The California Sixth District Court of Appeal affirmed. Khan argued that the search warrant affidavit did not establish probable cause, but the Court disagreed. The Court explained that the affidavit set forth “ample” facts establishing probable cause to believe that the residence where S.S. and his family lived had been the object of arson using an accelerant, and that there were circumstances that implicated Khan. Khan was disgruntled with his former supervisor S.S., had workplace performance problems, and had to be escorted from the premises when he showed up at HanaHaus while on leave. Khan was terminated after the cockroach release incident. The Court found the supporting affidavit showed that the residence of S.S. had been the object of arson using an accelerant and that there had been multiple incidents specifically targeting HanaHaus and S.S. shortly after Khan was terminated, although the affidavit lacked information directly tying Khan to the incidents. Viewing the totality of circumstances “through the lens of common sense,” the Sixth District determined that the magistrate had a substantial basis for concluding that probable cause existed to believe that arson had been committed against S.S.’s home using an accelerant, Khan was implicated, and evidence of the arson would be found in Khan’s home. The Court therefore concluded that the trial court properly denied Khan’s motion to suppress.

Moreover, whether or not the search warrant was valid, the Court determined that the good faith exception to the exclusionary rule would apply. In United States v. Leon (1984) 468 U.S. 897, the United States Supreme Court recognized a good faith exception to the exclusionary rule where police conduct a search in “objectively reasonable reliance” on a warrant later held invalid. (Leon, supra, 468 U.S. at p. 922.) “In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.” (Id. at p. 921.) Nevertheless, the Supreme Court identified certain situations where the good faith exception would not apply. For example, an officer would not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ [Citations.]” (Leon, supra, 468 U.S. at p. 923.)

Here, the Sixth District Court of Appeal observed that the affidavit provided information that had been gathered through investigation of the fire and had led the detective to believe that arson, using an accelerant, of S.S.’s residence had occurred. The affidavit contained information from S.S., Khan’s former supervisor, about Khan’s deficient work performance, his termination, the cockroach incident, and the other pertinent facts discussed above. Thus, the Court determined that the affidavit reflected a serious investigation and was not so deficient that a well-trained officer could not have reasonably believed that probable cause existed and could not have reasonably relied on the issued warrant. Thus, the good faith exception applied.

Lastly, the Court concluded that pretrial diversion for mental health treatment (Penal Code section 1001.36) was not available to Khan, who already had been convicted and sentenced, because retroactive application would be contrary to legislative intent. A dissenting judge did not see any “clear signal of legislative intent” that Section 1001.35 should be limited to prospective application only, and would conditionally reverse to direct the trial court to determine whether Khan was entitled to mental health diversion.


A. Sheriff’s Deputy’s failure to report two incidents of abuse of an inmate constituted inexcusable neglect of duties and his subsequent lies harmed the public service, making discharge the proper remedy.

Cnty. of L.A. v. Civil Serv. Com. of Cnty. of L.A., 40 Cal. App. 5th 871 (2nd Dist. 2019)

Facts: In September 2010, Dequan Ballard, an inmate in the Men’s Central Jail in Los Angeles, stole items from a commissary cart. The theft was reported to Deputy Omar Lopez, who informed Los Angeles County Sheriff’s Deputy Mark Montez. Lopez conducted a strip search of Ballard while Montez monitored the nearby hallway. Lopez struck Ballard multiple times with his fist during the search. Montez was aware that Lopez had struck Ballard, though Montez did not participate nor know ahead of time that Lopez would strike Ballard. Lopez later took Ballard to a control booth area near a dormitory, papered over a window in the dormitory door to prevent other inmates from seeing what was happening, and then shoved Ballard’s face into a wall, resulting in severe bleeding from Ballard’s face and bloodying his clothes, the wall, and the floor. Though Montez was not present at the second assault, he arrived shortly thereafter and talked with Lopez in front of the bloody wall. Montez did not report either incident.

The sheriff’s internal affairs bureau (“IAB”) investigated. Montez denied awareness of either incident, saying he heard no indications of an assault, observed no injuries to Ballard, and did not observe blood on the control room wall. He also denied recognizing Lopez in a video of Lopez and Montez standing in the control room area. The Sheriff’s Department discharged Montez for failure to conform to work standards by (1) failing to report his observation of a use of force by another deputy and (2) making false statements during the department’s investigation, namely: That he was unaware of the use of force by Lopez; that he did not hear the confrontation between Lopez and Ballard; that he did not observe a trustee cleaning blood from the control booth wall; and that he could not recognize Lopez on a videotape.

Montez appealed his discharge to the Los Angeles County Civil Service Commission (the “Commission”). Montez reiterated his denials at an evidentiary hearing, but the hearing officer found that the department had shown its allegations were true, and that Montez’s testimony was not credible. Nonetheless, the officer recommended that the Commission reduce his discharge to a 30-day suspension without pay, and the Commission ultimately did so.

The County of Los Angeles petitioned the superior court for a writ vacating the Commission’s decision and upholding Montez’s discharge. The superior court found that the Commission’s decision was unsupported by its own findings and that discharge was the only reasonable remedy. The superior court accordingly issued a writ ordering the Commission to set aside its decision and reconsider the matter. Montez appealed.

Held: The California Second District Court of Appeal concluded that Montez’s misconduct was an inexcusable neglect of duty that harmed the Sheriff’s Department by compromising the public’s ability to trust it, and that the Commission abused its discretion by reducing Montez’s punishment. Accordingly, the Court affirmed.

The Court explained that, “[i]n considering whether an abuse of discretion occurred in the discipline of a public employee, the overriding consideration is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, harm to the public service.” (Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 107–108.) “Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 218.)

With regard to harm to the public service caused by a public employee’s conduct, the Second District noted that “peace officers specifically are held to higher standards of conduct than civilian employees, and dishonesty by law enforcement personnel is considered to be highly injurious to their employing agencies.” The Court observed that “[h]onesty, credibility and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

Here, the Second District determined that Montez’s failure to report the two incidents of inmate abuse constituted an inexcusable neglect of his duty to safeguard the jail population.[3] The Court also found that Montez’s lies during the investigation hindered rectification of the situation, brought discredit upon his position and department, and forever undermined his credibility. The Court added that “[t]he public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1223.)

The Court therefore concluded reasonable minds could not disagree that the appropriate disciplinary action here was for Montez to be discharged, and that the Commission abused its discretion in its decision to reduce his discharge to a 30-day suspension because the decision was unsupported by the Commission’s own findings. The Court also noted that Montez not only never recanted the false statements he made to the investigators, he repeated them at the Commission hearing – which did not support the Commission’s conclusion that his misconduct was unlikely to happen again. Accordingly, the Second District Court of Appeal affirmed the trial court’s granting the County’s petition for writ of mandate.

B. A trier of fact could reasonably find public employer’s human resources bulletin discussing unionization was an attempt to ‘influence’ public employees’ decisions about joining the union, even if bulletin was not coercive.

 Teamsters Local 2010 v. Regents of Univ. of Cal., 40 Cal. App. 5th 659 (1st Dist. 2019)

Facts: Teamsters Local 2010 (“Teamsters”) is a labor union representing skilled crafts employees at the University of California Los Angeles (UCLA) and University of California San Diego (UCSD). In 2017, Teamsters campaigned to unionize the skilled crafts employees of University of California Davis (UCD). Teamsters distributed a flier discussing the impacts unionizing had upon the skilled crafts employees at UCLA and UCSD.

In response, in May 2017, the Regents of the University of California (“Regents”) distributed a “HR Bulletin” flier to the skilled crafts employees at UCD issued through the Employee and Labor Relations Department at UCD. The flier professed that “the University is neutral on the issue of unionization and supports the right of each employee to make an independent decision on whether or not to be represented by a union.” The Regents’ flier couched the communication in terms of providing employees with facts and did not threaten employees with reprisals if they unionized. In the Bulletin, the Regents claimed a distinction between the skilled crafts employees at UCLA and UCSD compared to UCD, and discussed the commitment of the Regents to paying competitive wages.

Teamsters filed an unverified civil complaint against Regents in December 2017, alleging Regents had violated Government Code section 16645.6. The statute prohibits a public employer from using state funds to “assist, promote, or deter union organizing.” (Section 16645.6(a).) A copy of the Regents May 2017 bulletin was attached as Exhibit 1 to the Complaint.

Regents filed an anti-SLAAP motion under Code of Civil Procedure section 425.16 (the anti-SLAPP statute),[4] arguing the Teamsters had not demonstrated a probability of prevailing on its claim because nothing in Government Code section 16645.6 prohibited Regents from engaging in noncoercive speech, and because the claim was preempted by the exclusive jurisdiction of the Public Employment Relations Board (“PERB”). Regents submitted a declaration under penalty of perjury by Stephen Green, the executive director of UCD’s employee and labor relations department, explaining that the bulletin was circulated because: “Department personnel, myself included, believed that it was necessary to provide UCD’s skilled crafts employees with additional factual information so they could make more informed decisions about unionization.”

The trial court denied the motion, finding Teamsters had a reasonable probability of prevailing on its claim, and that the trial court’s jurisdiction was not preempted by PERB. Regents appealed.

Held: Under Government Code section 16645.6, “(a) A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing. [¶] (b) Any public official who knowingly authorizes the use of state funds in violation of subdivision (a) shall be liable to the state for the amount of those funds.” Government Code section 16645 provides, “‘Assist, promote, or deter union organizing’ means any attempt by an employer to influence the decision of its employees in this state or those of its subcontractors regarding either of the following: [¶] (1) Whether to support or oppose a labor organization that represents or seeks to represent those employees. [¶] (2) Whether to become a member of any labor organization.”

The California First District Court of Appeal determined that a reasonable trier of fact could find Regents’ bulletin to skilled crafts employees fell within these provisions. The Court explained that Section 16645 specifically defines “‘[a]ssist, promote, or deter union organizing’” as used in that section to mean “any attempt by an employer to influence the decision of its employees … .” (Section 16645(a), italics added.) Although the bulletin was not coercive, a trier of fact could reasonably find the bulletin was an attempt to “influence” the employees who were on the receiving end. Executive Director Green’s declaration said as much in his declaration, explaining that he and others at UCD decided to provide employees with additional facts so they could make a more informed decision about unionization. Moreover, Green’s declaration aside, the bulletin on its face could be construed as an attempt to influence the employees to whom it was directed. The stated purpose of the bulletin was “to ensure employees have the information they need. …” The evidence thus supported the trial court’s finding that Teamsters had a reasonable probability of prevailing on its claim that Regents violated Government Code section 16645.6.

Regents cited Government Code section 3571.3 which says that expression or dissemination of any views in written or other forms would not be evidence of an unfair labor practice unless coercion was involved. However, the Court explained that while noncoercive communications falling under Section 3571.3 will not qualify as unfair labor practices, such communications may still violate Section 16645.6.

The Court disagreed with Regents’ contention that PERB had exclusive jurisdiction under Government Code section 3563.2 over the claim by Teamsters, and so Teamsters had no probability of prevailing on its claim because the superior court was not the proper forum. The Court explained that the Legislature expressly provided in Section 16645.8(a) that a civil action may be filed when a violation of Section 16645.6(a) is alleged, as the Teamsters did here. The Court said that if the Legislature had intended PERB to have exclusive jurisdiction over claims under Government Code section 16645.6, it would not have provided for this remedy in Section 16645.8(a). Thus, the Court of Appeal concluded that the trial court’s jurisdiction was not preempted by PERB.

The Court thus determined that the evidence supported the trial court’s finding that Teamsters had a reasonable probability of prevailing on its claim that Regents violated Section 16645.6. Accordingly, the First District Court of Appeal affirmed.

C. An employee could not prevail on his whistleblower retaliation claim under Lab. Code, § 1102.5, subd. (c), because he did not prove that any violation of statutes, rules, or regulations would have resulted from the activity he refused to participate in, approving specific rebuild plans for homeowners after a wildfire.

 Nejadian v. Cnty. of L.A., 40 Cal. App. 5th 703 (2nd Dist. 2019)

Facts: Patrick Nejadian began working for the County of Los Angeles in 1990. Nejadian was a chief environmental health specialist (EHS) in the environmental health division of the Los Angeles County Department of Public Health. Nejadian alleged that Division director Angelo Bellomo verbally abused and improperly criticized Nejadian due to his age and national origin or race; that he was denied promotions three times due to related discrimination; and that he was subjected to adverse employment actions in retaliation for his associated complaints to management. Nejadian filed suit alleging California Fair Employment and Housing Act (“FEHA”) (Government Code section 12940 et seq.) retaliation and Labor Code section 1102.5(c) retaliation causes of action, among others. A jury found in favor of Nejadian and against the County of Los Angeles on these two retaliation claims, and awarded him almost $300,000 in damages. The County appealed.

Held: Addressing the Labor Code section 1102.5[5] retaliation claim, the California First District Court of Appeal explained that Labor Code section 1102.5(c) prohibits “[a]n employer, or any person acting on behalf of the employer, … [from] retaliat[ing] against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” The First District held that to prevail on a claim under this provision, the plaintiff must identify both the specific activity and the specific statute, rule, or regulation at issue; the court must then determine the legal question whether the identified activity would result in a violation or noncompliance with the identified statute, rule, or regulation, and, if so, the jury must determine the factual issue whether the plaintiff was retaliated against for refusing to participate in the identified activity.

Here, Nejadian had during the course of his employment revised “fire-rebuild” guidelines. Nejadian had refused to approve specific rebuild plans in two case for homeowners after a wildfire because he refused to violate these guidelines. However, the First District determined that Nejadian failed to present sufficient evidence to show that the approvals would result in a violation of any specific state, federal, or local statute, rule, or regulation; the guidelines were not statutes, rules, or regulations. The Court declared that the Section 1102.5(c) retaliation claim should have been dismissed. Accordingly, the Court reversed as to the Section 1102.5(c) claim and ordered that judgment be entered in favor of the County.

Nejadian’s FEHA claim argued the County retaliated against him in denying him an appointment to a temporary acting manager position and downgrading his rating on one category in his performance evaluation. The County denied a retaliatory basis, maintaining that the method used to fill the acting manager vacancy was based on set criteria and that Nejadian’s evaluation was downgraded because there was not documentary support for some of the work Nejadian claimed was performed during the performance rating period. Nejadian presented no evidence to counter the County’s proffered reasons for these decisions. Because the Court of Appeal found no evidence from which a jury reasonably could infer (without relying upon suspicion, imagination, speculation, or conjecture) that the County acted in retaliation against Nejadian, the First District concluded that the judgment in his favor on the FEHA retaliation claim must be reversed, with judgment to be entered in favor of County.

D. Employees are eligible for CalPERS disability retirement under Government Code section 21156 when, due to a disability, they can no longer perform their usual duties at the only location where their employer will allow them to work, even if they might be able to perform those duties at a theoretical different location.

McCormick v. Pub. Employees’ Ret. Sys., 2019 Cal. App. LEXIS 1051 (1st Dist. Oct. 25, 2019)

Facts: Cari McCormick, an appraiser for Lake County who worked mostly in the Lakeport courthouse, developed certain medical symptoms that began in 2010 and running into 2012. These symptoms including pain, fatigue, and dizziness. McCormick felt much better if she was at home or outside, and she began working only half days. The symptoms seemed to be caused by her office environment. Her superiors moved her to different locations in the courthouse, but the problems remained. McCormick was told that she “was a liability” and “should stay home.” She requested accommodations, such as permission to telecommute, but her superiors declined to let her work anywhere other than in the courthouse. In May 2013, Lake County terminated her employment because she had exhausted her medical leave.

McCormick applied for disability retirement to the Public Employees’ Retirement System (CalPERS) in late 2013, but was denied in December 2014. McCormick appealed the decision, and an administrative hearing was held in June 2016. The administrative law judge (“ALJ”) issued a proposed decision denying the appeal, which was adopted by the board of administration of CalPERS on the basis that her condition did not prevent her from performing her job duties at a theoretical different location than the courthouse. Her petition for reconsideration was unsuccessful. McCormick filed a petition for a writ of administrative mandate, which the trial court denied. McCormick appealed.

Held: On appeal, McCormick claimed that the trial court’s decision applied the wrong legal standard, and must be reversed. The California First District Court of Appeal explained that the essential issue presented here was whether McCormick was incapacitated within the meaning of Government Code section 21156 because of her inability to perform her duties in a particular location, the Lakeport courthouse. Section 21156 provides that “[i]f the medical examination and other available information show to the satisfaction of the [B]oard … that the member in the state service is incapacitated physically or mentally for the performance of his or her duties and is eligible to retire for disability, the [B]oard shall immediately retire him or her for disability … .”

The Court observed that “incapacitated for the performance of duty” has been interpreted to mean the substantial inability of the applicant to perform his [or her] usual duties. (Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th 1443, 1451.)

The First District Court of Appeal found that the trial court assumed the Lakeport courthouse was the cause of McCormick’s symptoms, and that the trial court made no findings to the contrary. The trial court remarked that it would “make[] no sense” if McCormick was to receive disability retirement and be able to “go across the street and get a job [with a different employer] as an appraiser with all of the same duties as an Appraiser III” and “be working doing the exact same things that she was found to have been disabled for and received a disability retirement for.”

However, the Court of Appeal explained that Section 21156 is concerned with members’ ability to perform their duties for their actual employers, not their ability to perform those duties in the abstract: “Thus, the relevant question is whether McCormick was incapacitated from performing the duties of an appraiser III for Lake County, not whether she was incapacitated from performing them elsewhere.” The First District concluded that McCormick’s usual duties required her to work at the Lakeport courthouse, and whether she could have performed her duties elsewhere was irrelevant to her eligibility for disability retirement under Section 21156. The First District therefore concluded that the trial court erred as a matter of law by concluding that McCormick’s ability to perform her duties at a theoretical other location left her ineligible for disability retirement. Accordingly, the Court of Appeal reversed and remanded for further proceedings in light of this decision.

E. Union speech aimed at encouraging an unlawful secondary boycott under the National Labor Relations Act (NLRA) is not subject to strict scrutiny under the First Amendment.

 NLRB v. Int’l Ass’n of Bridge, 2019 U.S. App. LEXIS 32214 (9th Cir. Oct. 28, 2019)

Facts: General contractor McCarthy Building Companies, Inc. (“McCarthy”) subcontracted with Western Concrete Pumping (“WCP”) and Commercial Metals Company (“CMC”) to perform work in connection with the construction of a parking structure in Temecula, California. The International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 229 (“Local 229”) engaged in a labor dispute with WCP over allegedly substandard wages.

In August 2016, Local 229 appealed to CMC’s neutral employees via text, phone calls, a website, flyers placed in employee lunchboxes, and in person at the jobsite specifically to induce or encourage a secondary boycott of CMC in support of Local 229’s labor dispute with WCP.

CMC filed a charge against Local 229 for engaging in an unfair labor practice by inducing or encouraging CMC’s neutral employees to strike or stop work for the unlawful secondary purpose of furthering Local 229’s primary labor dispute with WCP. An Administrative Law Judge (“ALJ”) determined that Local 229 had violated Section 8(b)(4)(i)(B) of the National Labor Relations Act[6] (NLRA), and recommended that the National Labor Relations Board (“Board”) enter a cease and desist order. The Board affirmed the ALJ’s factual findings and rejection of Local 229’s constitutional and statutory arguments. The Board adopted a modified version of the ALJ’s recommended cease and desist order, and petitioned for the order’s enforcement against Local 229. Local 229 opposed enforcement of the order, contending that its actions were protected by the First Amendment to the United States Constitution.

Held: The Ninth Circuit Court of Appeals explained that under the NLRA, it is an unfair labor practice for a labor organization or its agents to “induce or encourage any individual employed by any person engaged in commerce . . . to engage in[] a strike or a refusal . . . to perform any services . . . [where an] object thereof is . . . forcing or requiring any person . . . to cease doing business with any other person . . .” 29 U.S.C. section 158(b)(4)(i)(B). In other words, a union may not exert pressure on employees of a neutral employer to strike against that secondary employer for the purpose of increasing the union’s leverage in its dispute against the primary employer. See Int’l Longshoremen’s Ass’n, AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212, 222-23, (1982) (describing this action as a “secondary boycott”). Local 229 conceded it violated this provision, but challenged the Board’s application of the section.

Local 229 contended that the Board’s application punished expressive activity protected by the First Amendment. However, the Ninth Circuit explained that the United States Supreme Court in in International Brotherhood of Electrical Workers v. NLRB (IBEW), 341 U.S. 694 (1951) held that the NLRA’s prohibition on secondary boycotts “carries no unconstitutional abridgment of free speech.” Id. at 699-700, 705. That Court said that even peaceful picketing would violate the prohibition on secondary boycotts.

Local 229 also asserted that Section 8(c) of the NLRA protected its communicative activities. Section 8(c) provides that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” 29 U.S.C. section 158(c). The Ninth Circuit disagreed, explaining that the Supreme Court in IBEW definitively rejected the notion that activities proscribed by Section 8(b)(4) could escape prohibition through application of Section 8(c). The Court also found that Local 229’s other claims were likewise properly rejected by the Board.

The Ninth Circuit concluded therefore that substantial evidence supported the Board’s finding that Local 229 violated Section 8(b)(4)(i)(B) of the NLRA. The Court accordingly granted the Board’s application for enforcement of its order.


Under Proposition 64, a legal amount of cannabis found in possession of a driver during a traffic stop may not establish probable cause to perform a warrantless search.

People v. Lee, 40 Cal. App. 5th 853 (4th Dist. 2019)

Facts: In August 2017, San Diego Police Department Officers Carlos Robles and Thomas Cooper initiated a traffic stop of a gold-colored Cadillac with no front license plate and tinted windows for the possible violation of Vehicle Code section 26708. Robles asked the driver, Brandon Lance Lee for his driver’s license. Lee said he did not have his license, Robles told Lee to step out of the car, and performed a pat-down search to verify that Lee had no identification. During the pat-down search, Robles found a bag with a wad of cash and a small amount of marijuana in Lee’s pocket. Robles asked if Lee delivered medical marijuana. Lee said he did. Robles began handcuffing Lee when, according to Robles, Lee “tensed up.” Lee leaned back into the Cadillac and said something to the passenger inside. Robles placed Lee in the backseat of Robles’ patrol car. Officer Cooper ran a search of Lee and his passenger’s names, which revealed that Lee’s license had been suspended and the passenger had no license. Robles instructed the passenger to exit the Cadillac and placed him in handcuffs, explaining that the passenger would be free to leave if nothing was found during a search of the vehicle.

Robles asked Lee if there was anything illegal in the car, and Lee told him there was not. Robles asked again and told him he was going to search the car because it was being impounded due to his suspended license. Lee offered to have someone come pick up the car for him, but Robles told him, “That’s not going to work.” Robles asked Lee a third time if there was anything illegal in the car, and Lee again responded no. Lee began to ask if he could grab something from the car, and Robles told Lee he could take whatever he needed after the search confirmed there was nothing illegal in the car.

Robles searched the Cadillac, starting with the front passenger seat. He examined the space between the seat and the center console, then under the seat. He tried to access the glovebox, but it was locked. He opened both compartments of the center console and examined several items inside. He activated the screen of a cell phone sitting next to the center console. Proceeding to the backseat, Robles pulled the bench seat up and used a flashlight to examine the space underneath. After he returned the seat to a resting position, he pulled down the center backseat armrest and discovered it provided access to the trunk. A black backpack sitting in the trunk became visible once the armrest had been pulled down. Robles took the backpack out of the trunk. He found a firearm in the backpack’s main compartment and a large sum of money in its front pocket.

Robles returned to his patrol car and asked Lee twice if there was anything in the Cadillac he needed to discuss with the officers. Lee said no both times. Robles also asked Michael if he knew about anything illegal in the car, and Michael said he did not. Robles continued searching the car, looking under the driver’s side seat and the driver’s side floormat. He examined the space between the center console and the driver’s side seat. He briefly searched the backseat area once more, including the back pocket of the driver’s seat.

Robles then searched Lee’s person for the keys to the glovebox and, not finding them, ultimately requested and retrieved them from the passenger. Using the key to open the glovebox, he found inside a white envelope with two baggies containing a white powdery substance, later determined to be about 56 grams of cocaine. He also found more small plastic baggies, a kitchen knife, and a small glass container. Robles also found several small digital scales in the car.

Robles did not fill out the impound form (ARJIS-11) at the scene when he performed his search as he did not have a copy of the form with him, nor did he later assist with filling out the form when it was filled out by another officer at a later time after it was impounded.

Lee was charged with various drug and weapons offenses. He filed a motion to suppress the evidence obtained from the warrantless vehicle search, arguing the evidence was obtained in violation of the Fourth Amendment. The trial court granted Lee’s motion, rejecting the People’s contentions that the search was proper under the automobile exception as supported by probable cause or, alternatively, as an inventory search of a vehicle following an impound. The trial court questioned Officer Robles’s credibility, finding his testimony “less convincing.” The People appealed.

Held: The California Fourth District Court of Appeal described the Constitutional framework for the legal issues arising here. A warrantless search is unlawful under the Fourth Amendment “unless it falls within one of the ‘specifically established and well-delineated exceptions.’” (People v. Woods (1999) 21 Cal.4th 668, 674.) The two exceptions relevant here included (1) a search of any area of the automobile where there is probable cause to believe evidence of a crime or contraband may be found, generally referred to as the “automobile exception” (People v. Evans (2011) 200 Cal.App.4th 735, 753), and (2) an inventory search conducted in the course of impounding an automobile (see e.g., People v. Torres (2010) 188 Cal.App.4th 775, 786).

Under the automobile exception, “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” (Evans, supra, 200 Cal.App.4th at p.753.) With the passage of Proposition 64 by voters in 2016, California law now permits adults 21 years of age and older to legally possess up to 28.5 grams, or about one ounce, of marijuana. (Health and Safety Code, Section 11362.1(a)(1).) Moreover, the law now expressly provides that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” (Section 11362.1(c).) (Italics added.)

Here, the People argued that probable cause was established by the combined factors of the marijuana in Lee’s pocket, the “wadded up” cash, Lee’s affirmative reply that he delivered medical marijuana, $10 in cash that was in the center console of the car, and Lee’s “tensed up” reaction when Robles handcuffed him. The Court noted that Robles found a small and legal amount of marijuana when he searched his person, and thus provided little support for an inference that Lee’s car contained contraband. Nor did the other factors in tandem establish probable cause. Moreover, the trial court had questioned Robles’ truthfulness. Thus, the Fourth District concluded that even the totality of the circumstances fell far short of establishing probable cause to search the Cadillac under the belief that contraband would be found in the car.

Turning to the People’s inventory search argument, the Court explained that “[t]he decision to impound the vehicle must be justified by a community caretaking function ‘other than suspicion of evidence of criminal activity’ [citation] because inventory searches are ‘conducted in the absence of probable cause’ [citation].” (Torres, supra, 188 Cal.App.4th at p. 787.) The Court noted some examples of situations when impounding served a community caretaking function such as when a vehicle is parked illegally, blocks traffic or passage, or stands at risk of theft or vandalism. (People v. Williams (2006) 145 Cal.App.4th 756, 762–763.) Also relevant to the caretaking inquiry is whether someone other than the defendant could remove the car to a safe location. (Torres, at p. 790.)

Here, the Court found that no community caretaking function was served by impounding the Cadillac, and that the trial court reasonably found that Robles’s primary motive was to investigate, not inventory, the vehicle’s contents. The car was not blocking any passageway but was parked in or alongside an apartment complex. Lee offered to have someone remove the car, which Robles rejected. Robles repeatedly asked Lee and the passenger whether there was anything illegal in the car, indicating that the impound and purported inventory search were a pretext to look for incriminating evidence. Robles searched underneath the backseat, more suggestive of a search for a stash of illegal items rather than an inventory search for a person’s valuables to protect private property. Thus, the Court concluded that the warrantless search of Lee’s vehicle was not justified by the inventory search exception to the Fourth Amendment.

Because the vehicle search was neither supported by probable cause nor constituted a proper inventory search, the Fourth District concluded the vehicle search was constitutionally unreasonable and the trial court properly granted Lee’s motion to suppress. The Fourth District accordingly affirmed.


Under Proposition 47, the crime of receiving a stolen car valued at no more than $950 under CA Penal Code section 496 must be treated as a misdemeanor.

People v. Wehr, 41 Cal. App. 5th 123 (4th Dist. 2019)

Facts: In July 2017, deputy sheriffs found Robert Kenneth Wehr in a stolen 1985 Dodge Prospector pickup truck. Wehr’s backpack in the truck contained about 2.5 grams of methamphetamine. There was no evidence of the truck’s value in the factual record.

Under Penal Code section 496d(a), receipt of a stolen vehicle is a so-called wobbler, or an offense that may be punished as either a felony or a misdemeanor. Wehr was convicted for receiving a stolen vehicle under Section 496d(a) as a felony. The jury also convicted him of possession of a controlled substance. (Health & Safety Code section 11377.) After a court trial, the court found true a prior strike allegation and five prior prison term allegations.

The general statute criminalizing receipt of stolen property, Penal Code section 496, was amended by The Safe Neighborhoods and Schools Act of 2014 (Proposition 47) such that that receiving any stolen property worth $950 or less is a misdemeanor under Section 496(a) (as distinct from the more specific receipt of a stolen vehicle provision, Section 496d(a), for which Wehr was convicted). Before his sentencing, Wehr moved to reduce his felony conviction to a misdemeanor pursuant to Proposition 47. The trial court denied Wehr’s motion and sentenced him to a total of nine years in state prison, including sentence enhancements. Wehr appealed, arguing that that his offense was eligible for misdemeanor treatment under Section 496(a) if the value of the stolen vehicle did not exceed $950.

Held: The California Fourth District Court of Appeal determined that the issue boiled down to which statute – the general statue criminalizing receipt of stolen property valued $950 or less of Section 496(a), or the more specific Section 496d(a) criminalizing receipt of a stolen vehicle – governs when a defendant receives a stolen vehicle worth $950 or less.

The Court of Appeal explained that the California Supreme Court’s decision in People v. Page (2017) 3 Cal.5th 1175 resolved an analogous conflict between the general petty theft statute enacted by Proposition 47 (Penal Code section 490.2) and a more specific preexisting statute criminalizing theft of a vehicle (Vehicle Code section 10851). (Page, supra, at pp. 1179–1180.) The Page court held that the general petty theft statute enacted by Proposition 47 controls if the stolen vehicle is worth $950 or less. (Id. at pp. 1180, 1187.)

The Fourth District determined that Page’s reasoning applied with equal force to the general receipt of stolen property statute. Just as Section 490.2 applied to “obtaining any property by theft” (italics added) where the value of the property taken did not exceed $950, Section 496 applied to “buy[ing] or receiv[ing] any property that has been stolen.” (Section 496 (a), italics added.) The Court found that the Page decision demonstrated the unsoundness of the Fourth District’s reasoning in its earlier contrary decision in People v. Varner (2016) 3 Cal.App.5th 360. The Fourth District therefore declined to follow Varner and concluded that, after the passage of Proposition 47, receiving a stolen car valued at no more than $950 must be treated as a misdemeanor pursuant to Section 496.

Accordingly, the Fourth District reversed Wehr’s felony conviction for violating Section 496d, and determined that the proper remedy was to remand permitting the People to either (1) accept reduction of this conviction to a misdemeanor, or (2) retry him for a felony violation of Section 496d. The Court affirmed in all other aspects.

[1] Penal Code section 451(b).

[2] Penal Code section 451.1(a)(5).

[3] See Kolender v. San Diego County Civil Service Com., 132 Cal.App.4th 716, 722 (2005) [“The safety and physical integrity of inmates is one of the office’s paramount responsibilities”].

[4] A strategic lawsuit against public participation, or SLAPP suit, “‘seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.’” (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 404.)

[5] Section 1102.5 is considered a whistleblower statute.

[6] 29 U.S.C. 158(b)(4)(i)(B)