Litigation & Case Law Update

• Jurisdiction: California,United States
• Author: By Eugene Park
• Publication year: 2015
• Citation: Vol. 38 No. 4

Litigation & Case Law Update

By Eugene Park^*

PUBLIC RECORDS

League of California Cities v. Superior Court of San Diego County (2015) 241 Cal.App.4th 976.

The San Diegans for Open Government submitted a Public Records Act ("Act") request for all emails sent or received from the San Diego City Attorney's personal account. The City withheld, among other records, emails exchanged with a legal assistant and attorney members of the League of California Cities ("League") because they were not public records or were privileged. After reviewing a privilege log but declining to conduct an in camera review of the withheld emails, the trial court held the City failed to demonstrate that the emails were validly withheld under the Act and ordered them produced. The League petitioned to halt disclosure. Among the principal contentions was that the League did not have standing to appeal because it was not a "party" to the trial court proceedings, as required by the Act.

The Court of Appeal reversed and held the League had standing to appeal under the Act under longstanding precedent that non-parties can seek petitions so long as they are beneficially interested in the outcome. The Court also held that the trial court should have granted in camera review of the allegedly privileged public records when requested by the holder of the asserted privilege. The Court declined to opine on whether communications by public employees and officials transmitted through private accounts are subject to the Act because here, the emails were also copied to the City Attorney's public account. But the Court noted that the Supreme Court granted review on the issue. (City of San Jose v. Superior Court (2014) 225 Cal.App.4th 75, review granted May 22, 2014, S218066.)

EMPLOYMENT

Jumaane v. City of Los Angeles (2015) 194 Cal.Rptr.3d 689.

Plaintiff, a City firefighter employed since 1986, filed a complaint in 2002 with the Department of Fair Employment and Housing for racial discrimination, harassment, and retaliation under the Fair Employment and Housing Act ("FEHA".) Plaintiff's claims were based on events starting in 1991 and culminating in an allegedly wrongful suspension in 2001 that triggered the complaint. Plaintiff subsequently sued and a jury found for the City, but a retrial was granted because of juror misconduct. The retrial took place in 2013, and this time, the jury found for the Plaintiff on his claims for discrimination (under a disparate impact theory,) harassment, retaliation, and failure to prevent the same. Facing over $1 million in compensatory damages, the City moved to set aside the verdict because it was based in part on events occurring before the one-year statute of limitations under FEHA and these time barred events were not "continuing violations," while the events within the limitations period was insufficient to support the verdict. The trial court denied the motion.

The Court of Appeal reversed, holding the verdict should have been set aside and judgment entered in favor of the City. The Court declined to apply the continuing violation doctrine, which allows FEHA claims based on events outside the limitations period that are (1) similar or related to current conduct, (2) reasonably frequent, and (3) have not yet become permanent. Critically, the Court reaffirmed precedent that conduct becomes "permanent," and therefore triggers the limitations period, when the prior conduct is brought to an end or the employee is on notice that further efforts to end the unlawful conduct would be in vain. Here, while events in the 1990s likely constituted unlawful harassment and retaliation, they also likely became permanent when Plaintiff served his 1999 suspension, which was outside the limitations period. The Court concluded these prior events were time barred while the later events were insufficient to establish a FEHA violation, and consequently the City was entitled to judgment in its favor.

[Page 26]

REDEVELOPMENT AGENCIES / FINANCE

County of San Bernardino v. Cohen (2015) ___ Cal.App.4th______, 2015 WL 7717217 (Nov...