Recently in Civil Rights Law Category

In plaintiff's suit against defendants for violations of California's Disabled Persons Act (DPA), alleging the countertops in defendant's business establishments were allegedly too high to allow wheelchair access, dismissal pursuant to defendant's demurrer is reversed where, because a Florida federal case was resolved by a consent decree expressly reserving any damage claims, res judicata does not bar this claim for damages. 

Read Louie v. BFS Retail & Commercial Operations, LLC, No. C059800 [HTML]

Read Louie v. BFS Retail & Commercial Operations, LLC, No. C059800 [PDF]

Filed November 9, 2009

Judges

Opinion by Judge Sims

Counsel

For Appellant:  Law Offices of Morse Mehrban, Morse Mehrban and Brian Keith Andrews

For Appellee:  Rutan & Tucker, Ernest W. Klatte, III and Chris M. Heikaus Weaver

In plaintiff's pregnancy discrimination suit against a city, trial court's judgment in favor of plaintiff is reversed and remanded where: 1) the court's refusal to instruct the jury with the mixed-motive defense, BAJI No. 12.26, prejudiced the city; and 2) the trial court properly denied defendant's JNOV. 

Read Harris v. City of Santa Monica, No. B199571 [PDF]

Read Harris v. City of Santa Monica, No. B199571 [HTML]

Filed October 29, 2009

Judges

Opinion by Judge Rubin

Counsel

For Appellant: Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Carol Ann Rohr and Barbara Greenstein, Deputy City Attorneys

For Appellee:  Kokozian & Nourmand and Michael Nourmand

In plaintiff's challenge to the constitutionality of the Mental Health Services Act, which expands funding for mental health services for all Californians by imposing an additional tax of 1 percent on annual income in excess of $1 million, trial court judgment is affirmed as there is no constitutional infirmity in the Act as an income tax may be rationally based on a taxpayer's income level and ability to pay, and there is no need to show that a particular taxpayer personally benefits from a tax assessed for the public good.     

Read Jensen v. Franchise Tax Bd., No. B211815

Filed October 14, 2009

Judges

Opinion by Judge Boren

Counsel

For Appellant:  Lappen and Lappen, Jonathan Bailey Lappen; Moxon & Kobrin, Kendrick L. Moxon

For Appellee:  Edmund G. Brown, Jr., Attorney General, W. Dean Freeman, Felix E. Leatherwood, Anthony F. Sgherzi, Deputy Attorneys General

In plaintiff's case against defendants seeking damages under the California Disabled Persons Act (DPA) claiming she was prohibited from using certain facilities at a mobile and RV park due to their non-compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG), trial court's ruling in favor of the defendants is affirmed as plaintiff does not have standing to maintain a cause of action against defendants for monetary relief because she was not a registered guest of her sister-in-law and did not pay a guest fee. 

Read Reycraft v. Lee, No. E046248

Appellate Information

Filed September 23, 2009

Judges

Opinion by Judge Ramirez

Counsel

For Appellant:  Russell C. Handy

For Appelle:  Leonard J. Cravens

In plaintiff's suit against a community association involving his desired use of certain recreational trails within portions of common areas, summary judgment in favor of the association is affirmed as the trails are not a public accommodation within the definition of the ADA, California Disabled Persons Act, Unruh Act, Government Code section 4450 and Health and Safety Code section 1995, and a private property owner does not convert a private recreational property into a public accommodation by failing to actively deny the public access to the recreational property. 

Read Carolyn v. Orange Park Cmty. Ass'n., No. G041177

Filed September 21, 2009

Judges

Opinion by Judge Ikola

Counsel

For Appellant:  Law Offices of B. Paul Husband and B. Paul Husband; and Cheryl Alison Skigin

For Appelle:  Kulik, Gottesman, Mouton & Siegel and Mitchell S. Brachman

In plaintiff's 42 U.S.C. section 1983 suit against a city for adopting a resolution condemning him for hiring a private investigator to conduct surveillance of the city manager, trial court's grant of city's anti-SLAPP motion is reversed as plaintiff's 1983 action is based on conduct that qualifies for protection under the anti-SLAPP statute and  plaintiff made a prima facie showing of success on the merits where his evidence would support findings that: 1) he was engaged in conduct protected by the First Amendment rights to petition and right of free speech; 2) the city took adverse action in response to his conduct with the intent to retaliate against him and deter that conduct; and 3) the city's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct. 

Read Tichinin v. City of Morgan Hill, No. H031019

Appellate Information

Filed September 21, 2009

Judges

Opinion by Judge Rushing

Counsel

For Appellant: Mesirow & Fink, Steven M. Fink, Law Offices of Bruce Tichinin, Bruce Tichinin For Appelle:   Burton, Volkmann & Schmal, Timothy J. Schmal, Burleigh E. Sabin

Following administrative proceedings involving an off-duty, officer-involved shooting, trial court's denial of police officer's petition for writ of administrative mandate is reversed and remanded where, because the disciplinary proceedings against petitioner substantially affected his fundamental vested right in his employment, the trial court was required to exercise its independent judgment on the evidence. 

Read Wences v. City of Los Angeles, No. B208525

Filed September 2, 2009

Judges

Opinion by Judge Zelon

Counsel

For Appellant:  Gary Orville

For Respondent:  Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney.

In an action against a city for sexual assaults allegedly committed by firefighters, summary judgment for defendant is affirmed where the assault was not conduct within the scope of the firefighters' employment and could not support a finding that the city was vicariously liable for the harm.

Read M.P. v. Sacramento, No. C057324

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge Scotland

Dissent by Judge Nicholson

Counsel

For Appellant:

Michael J. Kinane, Law Office of Michael J. Kinane, Oakland, CA

For Respondent:

Eileen M. Teichert, City Attorney, Sacramento, CA

Chance L. Trimm, Senior Deputy City Attorney, Sacramento, CA

In a 42 U.S.C. section 1983 action claiming that defendant state medical board personnel wrongfully investigated plaintiff-physician's recommendation of medical marijuana to a patient, dismissal of the action is affirmed where plaintiff's claims were barred by qualified immunity because he alleged no facts that a reasonable public official would have believed that issuance of the administrative subpoena under the facts presented violated a clearly established statutory or constitutional right.

Read Bearman v. Cal. Med. Bd., No. B210868

Appellate Information

Filed August 26, 2009

Judges

Opinion by Judge Yegan

Counsel

For Appellant:

Joseph D. Allen

For Respondent:

Pamela J. Holmes, Supervising Deputy Attorney General

Brent W. Reden, Deputy Attorney General