Court of Appeals Holds that Unions Need Not Exhaust Administrative Remedies if Such Remedies are Inadequate

         In Association for Los Angeles Deputy Sheriffs (ALADS) v. County of Los Angeles (2021) 60 Cal.App.5th 327, review denied (Apr. 21, 2021), the California Court of Appeals for the Second District overturned the trial court’s dismissal of the union’s case for failure to exhaust administrative remedies. In overturning the trial court’s decision, the appellate court held that ALADS was not required to exhaust all administrative remedies prior to bringing a lawsuit because the administrative remedies were inadequate. However, the appellate court found that ALADS did not state a valid claim against the County because the section of the California Labor Code at issue did not apply to public employers.   

            In April 2012, during conversion to a new payroll system, the County failed to apply an agreed-upon cap to certain bonus payments. This error resulted in salary overpayments to 107 deputies. ALADS’ Memorandum of Understanding (MOU) contained a provision regarding how the County was to collect overpayments. In May 2017, the County sent letters to the overpaid deputies, informing them of the overpayment, and giving them two repayment options: remitting payment in full, or repaying the amount through payroll deductions at a specified rate.

            ALADS objected to the paycheck deductions and sent a letter to the County claiming such deductions were unlawful. When the County and ALADS could not reach an agreement regarding the issue, ALADS filed a lawsuit against the County. The lawsuit alleged that the wage garnishment law (Code Civ. Proc., § 706.010 et seq.) provided the exclusive procedure for withholding an employee's earnings, and those earning are exempt from prejudgment attachment (§ 487.020, subd. (c)). ALADS further alleged the deductions violated California Labor Code section 221, which makes it unlawful “for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.”

            The County argued that the case should be dismissed because ALADS failed to exhaust its remedies under the MOU. Generally, the doctrine of exhaustion of remedies requires an organization to exhaust all non-judicial remedies—such as grievances, arbitration, agency appeals, etc.—prior to filing a lawsuit. Here, that would have involved completing the grievance procedure for all individual members who received the overpayments. However, the Court of Appeals held that this case fell under an exception to the doctrine, which provides that an individual need not exhaust all administrative remedies if the remedies are legally inadequate. The court relied on its previous ruling (also involving ALADS: ALADS v. County of Los Angeles (2019) 42 Cal.App.5th 918) in holding that the grievance procedure outlined in the MOU was inadequate because it did not provide classwide relief. The court reiterated that when a judicial action seeks relief on behalf of a class, “if the available administrative remedies do not provide classwide relief, then no plaintiff need exhaust them before suing.” Since the grievance procedure would require separate adjudication of each individual’s claim and would not be binding in future cases, the court found that it was inadequate and ALADS could file a lawsuit even though it had not completed the grievance process.

            However, the appellate court still found that dismissal was proper because the “home rule” doctrine gives the County the exclusive right to regulate matters relating to its employees’ compensation. (Cal. Const., art. XI, § 1, subd. (b), see also §§ 3 & 4.) The home rule doctrine stems from Article XI, Sections 4 and 5 of the California Constitution, which provides that charter cities and counties have exclusive authority to regulate and determine their own municipal affairs, free from intrusion by the state. Because of the home rule doctrine, unless California Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector. Thus, the court found that Labor Code section 221 did not apply to LA County employees. The court found that the same principles applied regarding the home rule doctrine and the wage garnishment law, and thus the wage garnishment law was also not applicable to ALADS’ members.

            Although the appellate court ultimately found that the MOU provisions properly authorized the County to recover overpayments from ALADS’ members, the affirmation that plaintiffs do not need to exhaust the grievance procedure prior to filing a lawsuit is an important holding for unions. If the MOU does not provide for classwide relief, the union is free to grieve the issue while simultaneously filing a lawsuit on its members’ behalf.  

Legal Update: Rice v Morehouse

The 9^th Circuit Court of Appeals recently addressed the use of restraint holds on a “simple” car stop and an individual’s refusal to provide any information.  In this youtube video, David Demurjian will explain how the appellate court evaluates “non-trivial” force under non-emergency circumstance.  Click on the video below to learn more about this important new case: 

 

    Video Link: https://www.youtube.com/watch?v=WhJvWD-gyjE

Appellate Court Finds Officers’ Force & Tactics During the Stockton Bank of the West Robbery Justified Under A.B. 392

For the first time since Assembly Bill 392 amended Penal Code section 835a in 2019, an appellate opinion has interpreted the new use of deadly force standards in California. The Third District Court of Appeal in Koussaya v. City of Stockton (2020) 54 Cal. App. 5th 909, applied the new law in the context of a civil suit regarding the tactics and use of deadly force by Stockton Police Department officers during the Bank of the West robbery.  Finding the officers' actions reasonable, the court provided guidance for determining the necessity of force and the consideration of pre-shooting conduct.

The Plaintiff, Koussaya, was one of the hostages taken by armed bank robbers and used as a human shield in order to facilitate their escape. A high-speed chase with law enforcement ensued where the robbers fired AK-47 assault rifles at officers from the back of their SUV.  Fearing a shootout when the pursuit terminated, Koussaya decided her best chance at survival was to throw herself from the moving vehicle.  Having sustained serious injuries during her escape, she sued the City of Stockton and the individual officers that initiated the pursuit.

The appellate court ultimately held the officers’ tactics and use of deadly force in shooting at the getaway vehicle was reasonable as matter of law, and thus dismissed claims for assault and battery, intentional infliction of emotional distress, and general negligence.  Applying the new use of force standards enacted in 2019, the court concluded a reasonable officer would have been more than justified in believing that robbers had the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the pursuing officers, as well as any innocent bystanders who happened to be in line of fire, if immediate action was not taken. They explained that the officers were not required to retreat or desist from their efforts to apprehend the robbers on account of their violent resistance, and that Koussaya’s injuries were not caused by officers’ operation of their patrol vehicles, but rather, by her decision to jump from a moving vehicle. 

In reaching their conclusion, the court provided guidance regarding an officer's discretion in addressing a situation, the determination of reasonableness, and the proper consideration of pre-shooting conduct.

First, the court clarified the analysis for determining the necessity of deadly force.  A.B. 392 amended Section 835a(c)(1) to state, “a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:

(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.

(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

The court explained that the use of deadly force will be considered reasonable when an officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.  As long as the officer's conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that the officer choose the “most reasonable” action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect. “Law enforcement personnel have a degree of discretion as to how they choose to address a particular situation.”

Second, the court rejected the argument that the existence of an applicable general order establishes the standard of care for using deadly force. But, the court clarified, “such orders ‘may well be extremely useful to the trier of fact’ in determining whether a particular use of deadly force, or officer conduct leading up to that use of force, violated the more ‘amorphous’ standard of reasonableness.” (citing, Grudt v. City of Los Angeles (1970) 2 Cal.3d 575.)  Notably, Senate Bill 230, which mandated minimum general orders standards for use of force, states "policies and training may be considered as a factor in the totality of circumstances in determining whether the officer acted reasonably, but shall not be considered as imposing a legal duty on the officer to act in accordance with such policies and training.”

Third, the court considered the relevance of pre-shooting conduct.  A.B. 392 states, "'totality of the circumstances' means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force."  This new definition of totality of the circumstances is similar to the California Supreme Court ruling in Hayes v. County of San Diego that negligence liability may arise from tactical conduct and decisions officers preceding the use of deadly force. The court then harmonized A.B. 392’s adherence to Graham with this expanded definition of totality of the circumstances.

The court rejected the plaintiff's claims based on the officers' pre-shooting pursuit tactics.  The court noted that the officers "had every right to pursue the robbers in an attempt to apprehend them for several violent felonies, including armed robbery, kidnapping, assault with a deadly weapon, and attempted murder."  An officer is "not required to retreat or desist from his efforts to apprehend them on account of their violent resistance."  Further, the plaintiff's injuries were not even caused by the proximity of the pursuit vehicles, but rather by her decision to jump from a moving vehicle.

The court held that “although an officer's pre-shooting conduct must be considered as part of the totality of circumstances surrounding the use of force, the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  This evaluation must provide “deference to the split-second decisions of an officer and recognizes that, unlike private citizens, officers may use deadly force...They are charged with acting affirmatively and using force as part of their duties.”

In conclusion, the court applied a common-sense application of A.B. 392’s amendments to the law in analyzing the claims against officers for their actions. This important ruling should help dispel the misinformation about A.B. 392.  As the court explained, these legal standards must be applied in real world contexts:

"We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. Placing the burden of proof on the plaintiff to establish that an officer's use of force was unreasonable gives the police appropriate maneuvering room in which to make such judgments free from the need to justify every action in a court of law."  

Attorney General Bonta to Accelerate SB 1421 Release of Peace Officer Records

On May 7, 2021 Attorney General Bonta issued a press release announcing announcing his court approved stipulation and Order settling litigation brought by media and First Amendment organizations over the pace of the SB 1421 compliance.  Under the settlement the DOJ will expedite the release of officer use-of-force and certain misconduct records.

Under the agreement, DOJ will review hundreds of thousands of records for responsiveness and complete its production of responsive records by September 26. The agreement also provides for further proceedings, if necessary, to obtain further guidance from the court and to resolve any outstanding questions relating to the scope of the production. In addition, the DOJ will take steps to identify mechanisms to streamline the tracking and disclosure of records subject to SB 1421 in DOJ's possession and to help provide clear standards for other agencies to comply. 

Anti-SLAPP Motion Overturned Because County's Disclosure of Investigator's Personnel Records Consistuted a Crime

In Towner v. County of Ventura (April 28, 2021) 2021 WL 1660616, the appellate court held that county's public disclosure of investigator's confidential personnel files was not protected under the anti-SLAPP statute because it was illegal as a matter of law.  A former District Attorney Investigator brought an action against the County of Ventura for violating his right to privacy and POBR based on the County’s disclosure of confidential personnel records in a superior court filing seeking to enjoin the Civil Service Commission from hearing his appeal of his termination.  In a significant win for peace officers seeking to vindicate their labor rights in court, the appellate court overturned the trial court’s granting of the County’s special motion to strike under the anti-SLAPP statute.

Strategic Lawsuits Against Public Participation (SLAPP) are lawsuits filed for the particular purpose of dissuading people from exercising First Amendment rights, typically through speech or petitioning the courts.  Anti-SLAPP motions, codified in Code of Civil Procedure 425.15, provide a vehicle for early dismissal of a lawsuit and an award of attorney’s fees for the defendant.  The analysis of an anti-SLAPP motion involves a two-step process: first, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity; if so, the plaintiff must demonstrate a probability of prevailing on the merits.

The Ventura County District Attorney fired Towner based on an accusation that he provided false testimony during an administrative hearing regarding another investigator. Towner filed an appeal with the Civil Service Commission of Ventura County (Commission). Thereafter, the County filed a writ of mandate petitioning the court to enjoin the Commission from hearing Towner’s appeal. The County had attached as exhibits to the petition an independent investigator’s recommendation and two notices of disciplinary action from Towner’s confidential personnel file that had been labeled as such.  Towner sued, claiming the County violated POBR and negligently violated Penal Code section 832.7, which provides, that certain private records of peace officers shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to 1043 and 1046 of the California Evidence Code.

The County filed an anti-SLAPP special motion to strike arguing their disclosure of Towner’s personnel records was protected activity because the disclosure occurred in the process of filing a writ of mandate in Ventura Superior Court. The trial court agreed and granted the County’s motion. Further, the court found that Towner failed to show a probability of success on the merits for his claims, because the County was protected by litigation privilege under Civil Code section 47 and that neither POBR nor Penal Code section 832.7 provided a private right of action based on disclosure of confidential personnel records.

The appellate court reversed holding that allegedly protected speech that is proven to be or conceded to be illegal as a matter of law falls outside the scope of the anti-SLAPP statute. Because Government Code section 1222 makes it a misdemeanor for a public officer to willfully omit to perform a duty they are enjoined to by law, the court held that Towner had carried his burden to show the County’s conduct was illegal as a matter of law and their violation of section 832.7 constituted a willful omission to perform a public duty enjoined by law. Therefore, the court held that County's actions were not protected activity under the anti-SLAPP statute.

The County’s failure to comply with Penal Code section 832.7 resulted in the County committing a misdemeanor which precluded its anti-SLAPP motion.  The court’s reliance on Government Code section 1222 may reverse the recent trend of agencies seeking fees against unions and their members who seek to enforce their privacy rights. (See our blog post on Anti-SLAPP fees awarded in Collondrez v. City of Rio Vista.)