Litigation & Case Law Update


Litigation & Case Law Update

By Christopher Whitman and Donna Mooney*


Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368 (1st App. Dist., filed Nov. 9, 2016)

"Protected activity" for a retaliation claim under FEHA is conduct that opposes an employment practice affecting employees, as opposed to the general public.

Plaintiff David P. Dinslage worked for San Francisco’s Recreation and Parks Department as an organizer of programs for the disabled. The Department laid off Dinslage and more than one hundred other employees as part of a restructuring that changed the focus from separate, segregated programs for the disabled to inclusive programming accessible to all. Dinslage publicly disagreed with the restructuring. And when he applied for a position, Dinslage expressed hostility and resentment toward the new program. The Department did not offer him a position with the new program.

Dinslage sued the Department alleging, inter alia, retaliation under California’s Fair Employment and Housing Act ("FEHA"), which prohibits employers from retaliating against employees who oppose unlawful employment practices, including discrimination against persons with disabilities. Dinslage claimed that his position was eliminated because he opposed the program restructuring on the grounds that it discriminated against the disabled members of the public. The trial court granted the Department’s summary judgment motion and held that Dinslage could not state a prima facie case of retaliation because he did not engage in "protected activity" as defined by FEHA. The court reasoned that for activity to be protected, the employee must complain about an unlawful employment practice that affects employees, but Dinslage only voiced a concern regarding members of the public.

The Court of Appeal for the First Appellate District affirmed. In doing so, the court also addressed the alternative manner of engaging in protected activity: opposing a practice that one reasonably believes is unlawful under FEHA, but that ultimately proves to be FEHA-compliant. The First Appellate District held that Dinslage did not have an objectively reasonable belief that the practice was unlawful because the facts and circumstances did not show a violation of FEHA under existing law. Without evidence that the Department’s conduct was directed to employees, Dinslage could not have reasonably believed that his opposition to the restructuring was protected activity.

For public and private employers alike, this opinion clarifies the limited definition of protected activity under FEHA. It also emphasizes that FEHA is intended to govern the relations between employers and employees, and not employee rights that relate indirectly to employer impacts on members of the general public.

Bareno v. San Diego Community College District (2017) 7 Cal. App.5th 546 (4th App. Dist., Div. 1, filed Jan. 13, 2017)

An employee’s request for California Family Rights Act ("CFRA"’) medical leave is evaluated under a "reasonableness" standard, and so must include consideration of all employee efforts to communicate the request and the employer’s efforts to request additional information.

Plaintiff Leticia Bareno worked for the San Diego Community College District as an administrative assistant. On two separate occasions, the College disciplined Bareno with suspension due to excessive absences, incompetence, and inefficiency. On the day set for Bareno’s return to work after the second suspension, February 25th, she called and emailed her supervisor, Lynn Ornelas, to state that she could not work because she needed to be hospitalized for sickness, depression, and stress. Ornelas requested a physician’s note authorizing medical leave, and Bareno provided her with a physician’s note stating that Bareno needed to be on medical leave through her next medical appointment on March 1st.

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On March 1st, Bareno emailed the College’s vice president to state that she was still on medical leave. On the afternoon of March 1st, Bareno went to a UPS Store and used an email account from the store to send Ornelas a copy of an updated physician’s note extending her medical leave through March 8th. Ornelas denied receiving a copy of the updated physician’s note from Bareno. Neither the vice president nor Ornelas attempted to contact Bareno. On March 8th, a human resources employee sent a letter to Bareno’s post office box stating that Bareno had voluntarily resigned because of unauthorized absences.

On March 9th, Bareno emailed Ornelas an updated physician’s note extending her medical leave through March 15th. Although Ornelas forwarded Bareno’s March 9th email to human resources, she was instructed not to respond to Bareno. On March 13th, Bareno again emailed Ornelas her physician’s notes and a College form requesting a formal leave of absence. Ornelas forwarded this email to human resources. On March 18th, Bareno faxed Ornelas the form requesting a leave of absence and an updated physician’s note extending her medical leave through March 19th. On March 18th, Bareno received the College’s voluntary resignation notice when she checked her post office box. She immediately called human resources, but was told that she was no longer an employee. Bareno met with College officials to discuss her employment, and provided a copy of the March 1st email she sent to the College from the UPS Store, but the College did not change its position that Bareno had voluntarily resigned.

Bareno sued the College for retaliation in violation of CFRA and alleged that she was terminated because she exercised her right to take medical leave. The trial court granted the College’s summary judgment motion and found, inter alia, that Bareno did not properly request leave.

The Court of Appeal for the Fourth Appellate District, Division 1, reversed. It held that summary judgment should not have been granted for the College because the evidence should have been viewed in the light most favorable to Bareno, not the College, and that evidence showed that Bareno made a reasonable request for medical leave.

The court noted that an employee’s leave request under CFRA is evaluated under a "reasonableness" standard under which the court must consider (1) all of the circumstances of the employee’s efforts to communicate the request, and (2) the employer’s efforts to request additional information from the employee. Thus, even if Ornelas did not receive Bareno’s March 1st email from the UPS Store, Bareno’s efforts and all of her other communications constituted a valid request for leave under CFRA. Moreover, the court found that the College intentionally failed to engage with Bareno, which ran afoul of its duty to request additional information from employees to determine if they are seeking medical leave.

Employers should take note of this opinion because it confirms that any reasonable attempt by employees to request medical or family leave under CRFA may obligate the employer to seek additional information from the employees as to whether they are seeking leave.


City of San Jose v. The Superior Court of Santa Clara (2017) (Cal. Supreme Ct., filed March 2, 2017)1

Ted Smith, a local attorney and civic activist, sought communications from the San Jose mayor, councilmembers, and staff concerning the development of a public-private project. His request under the Public Records Act ("PRA") explicitly sought "voicemails, emails and text message sent or received on private electronic devices" of those officials and employees. The City produced some documents, but took the position that "since the City does not prepare, own, use or retain [the language of the PRA] many records created by the Mayor, members of the City Council or their staff using any type of personal digital assistant, those records are not public records." Smith prevailed at trial, but the case was reversed on appeal, with the court of appeal holding that "local agency" as used in the PRA does not include individuals, and communications on private devices are "not accessible" to the City, and therefore, outside the ambit fo the PRA. The California Supreme Court granted review and reversed, holding that "when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the [PRA]." The court prescribed a four-part test to determine whether records in private accounts or on private devices are subject to the PRA. A privately held record is a public record if it is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency. To make these determinations, the opinion suggested review of the message’s content, context, purpose, and audience and whether the employee in possession of the message was acting within the scope of employment in preparing or receiving the communication. The decision provided some guidance by reference to a Washington State statute and the Federal Freedom of Information Act about how agencies might satisfy their obligation to produce records in employees’ control by allowing them to search personal accounts on their own then to present affidavits documenting the completeness of that effort.

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Los Angeles County Board of Supervisors v. Superior Court (ACLU of Southern California) (2016) 2 Cal.5th 282 (Cal. Supreme Ct., filed Dec. 29, 2016)

The attorney-client privilege protects the confidentiality of a public agency’s billing invoices to its outside counsel for work in pending and active legal matters.

The ACLU of Southern California submitted a Public Records Act ("PRA") request to Los Angeles County demanding the production of billing invoices to outside counsel for nine lawsuits alleging excessive force was used against County inmates. The County agreed to produce invoices for three lawsuits that were no longer pending, but redacted portions covered by the attorney-client privilege and the attorney work product doctrine. The County declined to produce invoices for six pending lawsuits.

The ACLU filed a writ petition seeking to compel production of all the requested invoices. The trial court found that the County failed to establish that the invoices were attorney-client privileged communications and granted the ACLU’s petition, but held that the County could redact any legal advice, impressions, or theories contained in the invoices.

The County challenged the trial court decision in the Court of Appeal for the Second Appellate District, which reversed and vacated the trial court ruling. The appeals court held that, regardless of their content, all of the invoices were protected by the attorney-client privilege and thus were exempt from disclosure under the PRA because the communications were confidentially transmitted between the attorney and client during the course of that relationship.

In a divided four to three opinion, the California Supreme Court reversed and remanded, holding that the attorney-client privilege protects the confidentiality of a public agency’s billing invoices to its outside counsel for work in pending and active legal matters. The court found that the privilege does not apply to all confidential communications between the attorney and client, rather only to communications that bear some relationship to the attorney’s provision of legal consultation. Accordingly, the court held that while not all invoices for legal services are communicated for the purpose of legal consultation, invoices for pending and active cases are covered by the privilege. The court also stated that the privilege may not apply to cases "concluded long ago."

The dissenting opinion by Justice Werdegar – with Chief Justice Cantil-Sakauye and Justice Corrigan concurring – took issue with the approach of examining the content of the attorney-client communication and the status of the litigation. Instead, the dissent proposed a bright line privilege rule, stating that it should apply if the invoices were transmitted between the attorney and client, generated during the attorney-client relationship, and generated and transmitted in confidence.

This opinion highlights the tension between the right of access to public records and the public agency client’s right of confidentiality for communications with its attorneys. At least with respect to public agencies’ invoices for pending litigation matters handled by outside counsel, this opinion settles the question of whether the attorney-client privilege protects such invoices.


People v. Macabeo (2016) 1 Cal.5th 1206 (Cal. Supreme Ct., filed Dec. 5, 2016)

Police officers cannot conduct warrantless searches of cell phones unless an exception to the warrant requirement applies, and the exception for searches incident to arrest only applies after an actual arrest.

At 1:40 a.m. in a residential neighborhood, the Torrance Police Department stopped and detained Paul Macabeo for rolling through a stop sign while riding his bicycle. This was a Vehicle Code infraction, but the officers neither mentioned the infraction to Macabeo nor cited or arrested him for the infraction. Instead, the officers interrogated Macabeo on a wide range of subjects, asked him whether he was on probation, and asked about his criminal history and use of illegal drugs. Macabeo answered all of their questions, stating at first that he was on probation for possession of a controlled substance, but added that he was not sure and thought that he no longer had a probation officer. The officers did not check to see whether Macabeo was on probation.

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When the officers asked Macabeo if they could search his pockets, he consented, and the officers removed his cell phone; nothing suspicious was found. After further interrogation, the officers instructed Macabeo to put his hands on his head. Macabeo asked twice whether he was being arrested, but an officer only stated that he would explain everything later. After five to ten minutes of searching Macabeo’s cell phone, the officers found photographs of underage girls.

At the preliminary hearing, Macabeo moved to suppress the evidence from his phone because it resulted from an unduly prolonged and unjustified detention. The court denied the motion and, citing People v. Diaz (2011) 51 Cal.4th 84, accepted the prosecutor’s argument for applying the exception to the warrant requirement for a search incident to arrest because the officers could have arrested Macabeo for failing to stop at the stop sign. The Court of Appeal for the Second Appellate District affirmed. The appeals court noted that Diaz had been repudiated in Riley v. California (2014) 134 S.Ct. 2473, but held that the good faith exception to the warrant requirement applied because, at the time of the incident, Diaz was the controlling law.

The California Supreme Court reversed and held that the warrantless search of Macabeo’s cell phone ran afoul of Riley and would not have qualified as a proper search under Diaz. The court found that warrantless cell phone searches without consent are improper unless justified by an exception to the warrant requirement. While an exception exists for searches incident to arrest -i.e., for weapons, for evidence of a crime, or to prevent escape or the destruction of evidence – this cell phone search occurred before Macabeo was arrested. Also, the good faith exception to the warrant requirement did not apply because a reasonably well-trained officer would have known that, under Diaz and other authority, a warrantless cell phone search is only proper after a lawful arrest, and may be limited if the arrestee had no potential to destroy evidence, escape, or put the officer in jeopardy.

This case highlights the tension between the government’s law enforcement interests and the heightened privacy interests in cell phone data. While Fourth Amendment legal jurisprudence continues to evolve as cell phone technology changes, for the time being, People v. Macabeo provides California law enforcement with a clear rule for searching cell phones of suspects: "get a warrant."


Kirkpatrick v. County of Washoe (2016) 843 F.3d 784 (9th Cir., filed Dec. 9, 2016)

A plaintiff seeking to hold a public entity liable for a federal civil rights violation under 42 U.S.C. Section 1983 ("Section 1983") must allege and prove the public entity has an unconstitutional policy. The cause of action is otherwise known as a Monell claim. A city defendant might defeat the claim through a motion for summary judgment, narrowing the lawsuit to claims against individual employees.

Social service workers removed a newborn from her mother without a warrant at the hospital as she recovered from a complicated birth. The mother tested positive for methamphetamine, admitted using meth during the pregnancy, and had dropped out of a drug rehabilitation program. She had lost parental rights over two other children based on her demonstrated inability to care for them.

The infant’s biological father brought a Section 1983 lawsuit against the County and its social service workers, alleging a violation of the Fourth and Fourteenth Amendments in the warrantless removal of the infant. The County brought a motion for summary judgment on all claims, which the District Court granted. The District Court concluded that the claims were made only by the biological father, whose rights had not been violated. The plaintiff appealed. The Ninth Circuit reversed on all claims, with a split decision on qualified immunity as to the two social workers.

The matter proceeded to the Ninth Circuit en banc. A majority of the 11-justice panel concluded that the biological father could assert a Fourth Amendment violation on behalf of the newborn. The court found summary judgment on qualified immunity for the social workers was appropriate because at the time of the incident, case law was unclear as to what exigent circumstances compelled a warrantless removal of a child from its mother. The en banc panel affirmed the District Court’s decision that the biological father suffered no constitutional violation.

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However, the panel reversed the lower court’s decision on the Monell claim against the County. The justices pointed to testimony of the two social workers, who said they were unfamiliar with the process of obtaining a warrant before removing a child. In particular, one employee stated "it wasn’t the protocol" and "no one told me to get a warrant and they didn’t train me." A second employee made statements such as the "policy was never to get warrants" and "there was no policy related to warrants." As a result, the panel concluded there was a genuine issue of material fact as to whether the County maintained a policy of unconstitutionally seizing children in non-exigent circumstances.

Several justices on the panel joined a dissent. They criticized the majority for failing to identify evidence of a systemic problem at the County, evidence that the training the two workers got was typical, or evidence of even one other instance of a child being removed when there was no risk of harm. They noted the plaintiff provided no evidence of the training given to the County’s social workers, and noted that the two who testified did say they were instructed to remove a child only if there was an imminent risk of harm. The dissent also also noted that this situation presented some risk of harm and that a court should not second-guess social workers.


White v. Pauly (2017) ___ U.S. ___ 137 S.Ct. 548 (U.S. Supreme Ct., filed Jan. 9, 2017)

Police officer may have qualified immunity when arriving later than other officers on scene and firing weapon without warning at armed individual

The U.S. Supreme Court resolved that there is no clearly established law requiring a police officer arriving on scene after other police officers to first give a warning before firing a shot at an armed individual, and therefore does not necessarily forfeit qualified immunity.

In White, the police searched for an individual reported to have been driving recklessly. Police officers obtained an address based on the license plate. Two officers arrived at the property and observed two armed men inside a house. One of the armed men shouted "we have guns." Someone fired a shotgun twice from a door. A third officer, Officer White, arrived on scene and heard the shout and the shotgun fire. One of the armed men pointed a handgun at White, and an officer shot at the suspect but missed. White fired and killed him.

The decedent’s family sued, alleging violation of the Fourth Amendment. A motion for summary judgment on qualified immunity grounds was filed for the three officers. As to White, both the District Court and the Circuit Court concluded there was clearly established law requiring the police officer to provide a warning before firing, precluding summary judgment.

In reversing, the high court held that immunity is available except where existing precedent has eliminated debate about the law. Immunity protects all but the "plainly incompetent or those who knowingly violate the law," citing Mullenix v. Luna (2015) 577 U.S. ___, 136 S. Ct. 305. The court noted that no case had been identified where an officer acting in similar circumstances was held to have violated the Fourth Amendment. The matter was remanded. Justice Ginsberg concurred but noted that the court below may still deny the motion for summary judgment based on factual disputes about when White arrived, what he witnessed at the scene, and whether he had enough time to identify himself and order the armed man to drop his weapon.


Mission Bay Alliance v. Office of Community Investment and Infrastructure (GSW Arena LLC) (2016) 6 Cal.App.5th 160 (1st App. Dist., filed Nov. 29, 2016)

In this CEQA decision, the Court of Appeal for the First Appellate District affirmed the certification of a final supplemental environmental impact report and related permits for the construction of an arena for the Golden State Warriors basketball team and the construction of adjacent facilities in San Francisco. This lengthy opinion addressed several California Environmental Quality Act topics, including distinguishing between project design features and mitigation measures and the discretion of agencies to rely on non-quantitative methodologies for assessing greenhouse gas impacts.

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*Christopher Whitman is a Deputy County Counsel for Contra Costa County.

*Donna Mooney is the Chief Assistant City Attorney for the City of Vallejo.

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1. Gary Schons of Best Best & Krieger LLP contributed this note.