Opposition Brief — Sanchez v. City of Santa Ana
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ose | GFFICE OF THE CLERK
Supreme Court of the Gnited States
OCTOBER TERM, 1990
JESSE J. SANCHEZ,
Petitioner,
VS.
CITY OF SANTA ANA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF {N OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
CHARLES W. MATHEIS, JR.
Counsel of Record
BEAM & BROBECK
600 West Santa Ana Boulevard, Suite 1000
Santa Ana, California 92701-2022
(714) $58-3944
EDWARD J. COOPER
City Attorney
CITY OF SANTA ANA
20 Civic Center Plaza
Santa Ana, California 92701
(714) 647-5201
Attorneys for Respondent
Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510
No.
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1990
JESSE J. SANCHEZ,
Petitioner,
VS.
CITY OF SANTA ANA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
CHARLES W. MATHEIS, JR.
Counsel of Record
BEAM & BROBECK
600 West Santa Ana Boulevard, Suite 1000
Santa Ana, Califomia 92701-2022
(714) 558-3944
EDWARD J. COOPER
City Attorney
CITY OF SANTA ANA
20 Civic Center Plaza
Santa Ana, Califomia 92701
(714) 647-5201
Attorneys for Respondent
PREFATORY STATEMENT
STATEMENT OF THE CASE
I.
II.
V.
ARGUMENT
I.
PETITIONER'S HIRING
PETITIONER'S INCREASING
PERFORMANCE PROBLEMS
PETITIONER'S WORK-
RELATED STRESS AND
EVENTUAL RESIGNATION
PETITIONER'S WORKERS'
COMPENSATION RECOVERY
PROCEDURAL HISTORY OF CASE
PETITIONER MISSTATES
THE NINTH CIRCUIT'S
DECISION BELOW - THE
NINTH CIRCUIT
CORRECTLY HELD THAT
PETITIONER'S RECOVERY
BEFORE A STATE
ADMINISTRATIVE AGENCY
PRECLUDES HIS RECOVERY
FOR THE SAME INJURY
UNDER SECTION 1983
oie
16
16
THE NINTH CIRCUIT
DETERMINED THAT
PETITIONER'S
RECOVERY BEFORE THE
WCAB PRECLUDED A
SECOND RECOVERY FOR
EMOTIONAL DISTRESS
INJURY AND DID NOT
RELY UPON THE
CALIFORNIA WORKERS '
COMPENSATION
SYSTEM'S EXCLUSIVITY
PROVISION 16
THE NINTH CIRCUIT
CORRECTLY APPLIED
THIS COURT'S RULE
CONCERNING THE
PRECLUSIVE EFFECT OF
A STATE ADMINISTRA-
TIVE DECISION IN A
SUBSEQUENT SECTION
1983 ACTION 22
THE NINTH CIRCUIT
CORRECTLY DETERMINED
THAT, UNDER
CALIFORNIA LAW,
PETITIONER'S
RECOVERY HEREIN IS
BARRED BY EITHER
CLAIM OR ISSUE
PRECLUSION 30
ol tea
————
II. PETITIONER (1) MIS-
STATES THE LAW AND THE
FACTS REGARDING THE
SECONDARY ISSUE HEREIN
BY ARGUING THAT
RESPONDENT DID NOT
PROPERLY RAISE THE
DEFENSE OF PRECLUSION;
AND (2) MISSTATES THE
IMPORTANCE OF THE
ISSUE 39
A. RESPONDENT DID RAISE
IN A PROPER AND
TIMELY MANNER THE
ISSUE OF THE
PRECLUSIVE EFFECT OF
PETITIONER'S PRIOR
RECOVERY FOR THE
SAME ALLEGED INJURY 39
1. PETITIONER
MISSTATES THE
RECORD 39
2. THE AUTHORITIES
CITED ARE
INAPPOSITE 42
B. THE ALLEGED FAILURE
TO TIMELY RAISE THE
DEFENSE OF PRECLU-
SION IS NOT AN
"IMPORTANT ISSUE"
DESERVING OF A WRIT
OF CERTIORARI 46
-iii-
|
III. PETITIONER'S THIRD
QUESTION PRESENTED IS
MOOT DUE TO THE NINTH
CIRCUIT'S RECENT
DECISION ON REHEARING
OF THE COMPANION CASE
OF SANCHEZ V. CITY OF
SANTA ANA 48
CONCLUSION 48
APPENDICES
Appendix M: Second Consent Decree
and Final Judgment
[11/7/87]
Appendix N: California Labor Code
Section 4850
Appendix O: Order and Amended
Opinion [Filed 7/11/90]
Amended [5/24/91]
-iv-
_ .
904 F.2d 1405 (10th Cir. 1990)
cert. denied, 111 S.Ct. 350
(1990) 27, 28
Assoc. v. Solimino,
U.S. s.ct
—— ,
59 U.S.L.W. 4616
(June 10, 1991) 25, 29
ny |
’
848 F.2d 725 (6th Cir. 1988)
cert. denied, 488 U.S.
1007 (1989) , 26
Buckhalter v. Pepsi-Cola General
Bottlers, Inc.,
820 F.2d 892 (7th Cir. 1987) 28
Busick v. Workmen's Compensation —
Appeals Board,
7 Cal.3d 967, 104 Cal.Rptr.
42 (1972) 30, 31
Clemmer v. Hartford Ins. Co.,
22 Cal.3d 865, 151 Cal.Rptr.
285 (1978) 32
Eilrich v. Remas,
839 F.2d 630 (9th Cir. 1988),
cert. denied, 488 U.S. 819,
109 S.Ct. 60 (1988) 27
’
884 F.2d 657 (2nd Cir. 1989) 26
-V=-
Page(s)
o
829 F.2d 1056 (11th Cir. 1987) 28
Hollywood Refrigeration Sales Co., Inc.
vy. Superior Court
’
164 Cal.App.3d 754, 210
Cal.Rptr. 619 (1985) 31
- Vv. Guste,
773 F.2d 616 (5th Cir. 1985) 42, 43
Howlett v. Rose,
«2 » 110 S.Ct.
2430 (1990) 20
s ,
456 U.S. 461, 102 S.Ct. 1883
(1982) 22, 23
League of United Latin American Citizens
410 F.Supp. 873 (C.D. Cal. 1976) 4
Ow ’
249 U.S. 152, 39 S.Ct. 227 (1919) 19
Migra v. Warren City School Dist.,
465 U.S. 75, 104 S.Ct. 892
(1984) 23, 36
Slater v. Blackwood,
15 Cal.3d 791, 126 Cal.Rptr.
225 (1975) 30
State Farm Mutual Auto Ins. Co. v.
Mid-Continent Casualty Co.,
518 F.2d 292 (10th Cir. 1975) 43
’
843 F.2d 276 (8th Cir. 1988) 27
-vi-
Page(s)
United States v. First Nat. Bank of
Circle,
652 F.2d 882 (9th Cir. 1981)
478 U.S. 788, 106 S.Ct.
3220 (1986)
’
865 F.2d 982 (9th Cir. 1988)
STATUTES
28 U.S.C. Section 1738
42 U.S.C. Section 1983
California Labor Code Section 3600
California Labor Code Section 3601
California Labor Code Section 4850
-vii-
44
45
PREFATORY STATEMENT
Petitioner simply refuses to allow
any aspect of this case to rest without
multiple judicial challenges. In this
Petition, petitioner asks the Court to
reconsider the Ninth Circuit Court of
Appeals' determination that his prior
recovery for permanent stress-related
injuries before the California Workers'
Compensation Appeals Board ("WCAB") bars
his attempt to obtain a second recovery
for the same injuries. Thus, petitioner
seeks to undermine the important policy
of judicial finality and repose.
In essence, petitioner asks this
Court to grant a writ of certiorari to
determine: (1) whether or not an unchal-
lenged decision and award of damages by
a state administrative agency is entitled
to preclusive effect in a subsequent
Section 1983 case, a question which this
-il-
Court already answered five years ago,
and (2) whether a defense which was not
available when the case was filed, but
which was raised before the district
court (in a brief filed before the
damages phase of trial) was raised in a
timely manner.
The first issue has already been
resolved in University of Tennessee v.
Elliott, 478 U.S. 788, 106 S.Ct. 3220
(1986), and that case is being followed
throughout the circuit courts. Nonethe-
less, after having adjudicated the nature
and extent of his alleged emotional
injuries, and after having recovered
damages for the same alleged injury,
petitioner claims that he should be
allowed to adjudicate that claim once
again so that he can attempt to improve
his recovery.
The second issue raised is
completely without merit and, in any
- 2-
event, it is clearly not sufficiently
"special and important" to warrant this
Court's consideration.
Accordingly, for these reasons,
explained in more detail below, the Peti-
tion should be denied.
STATEMENT OF THE CASE
I. PETITIONER'S HIRING
Jesse J. Sanchez ("petitioner") was
employed by the City of Santa Ana Police
Department (the "Department" ) from
September 1975 to September 1979. He was
hired as part of the Minority Officer
Recruitment Effort ("MORE") and _ the
Community-Oriented Policing ("COP")
program, which, through the efforts of
Chief of Police Raymond C. Davis, made
available many new police officer
positions during 1973-74, most of which
were filled by minorities, primarily
Hispanics. [Appendix D.5] Contrary to
petitioner's misstatement in his Peti-
tion, he was hired as part of these
voluntary recruitment programs, not as a
result of any court decision, including
the district court's decision in League
of United Latin American Citizens v. City
of Santa Ana, 410 F.Supp. 873 (C.D. Cal.
1976) (this interim ruling was not made
until the year following Sanchez's hire,
and the case was not finally resolved
until 1978 by consent decree, which did
not impose any hiring order on the
Department). {Appendix M.7]
II. PETITIONER'S INCREASING
PERFORMANCE PROBLEMS
Beginning in August 1978,
petitioner's work performance began to
Gecline, as he showed an increasing
= nes same anaes
unwillingness to follow established
Department rules and procedures. Peti-
tioner was counseled repeatedly, but
showed no improvement. Due to these
performance problems, in late February
1979, petitioner was not recommended for
continued merit pay. [ER 701-03] He was
told at that time that he might lose his
present merit pay due to che decreasing
level of his work performance. [Appendix
D.6} Two weeks later, on March 15, 1979,
petitioner left work during the day with-
out completing his shift and with no
apparent reason for doing so. [Appendix
D.6) Shortly thereafter, petitioner's
merit pay steps were officially removed,
in accordance with the City's existing
procedures. [Appendix D.6] This issue
is discussed at length in the City's
Cross-Petition for Writ of Certiorari,
filed concurrently herewith.
III. PETITIONER'S WORK-RELATED
STRESS AND EVENTUAL RESIGNATION
Petitioner then requested and was
granted three medical leaves of absence.
[Appendix D.7] In March and May 1979,
petitioner also filed two separate
workers' compensation claims, alleging
that he was suffering from work-related
stress. The second of those claims was
dismissed as being unnecessary and
redundant to the first. [ER 916-17]
On September 6, 1979, after four
months of medical leave of absence,
petitioner wrote the City Personnel
Director, stating that his doctor had
authorized his return to work and
requesting information about his assign-
ment. [Appendix D.7]) He was told that
he would be in patrol. Then, on
September 10, 1979, he wrote another
letter stating that his doctor advised
that he could perform the patrol assign-
- 6 -
eee...
ment, but that he refused to return to
work unless his merit pay, which had been
removed in accordance with the City
Charter and merit pay resolution, was
restored immediately. {Appendix D.7]
After the City refused his demand, peti-
tioner wrote a third letter in which he
resigned, stating that his resignation
was a result of the City's refusal to
restore his merit pay. [Appendix D.7-8]
IV. PETITIONER'S WORKERS!
COMPENSATION RECOVERY
Petitioner then amended his
previously filed workers' compensation
claim to allege permanent emotional
disability. Petitioner also sought
recovery under Section 4850 of the
California Labor Code, which allows
injured police officers to recover a
year's leave of absence pay for injury or
illness arising in the course of his or
her duties. [Appendix N} The Workers'
Compensation Appeals Board held a hearing
on petitioner's claims on September 20,
1981. Both parties were represented by
counsel at the hearing. [ER 1103, 1107]
After hearing from both sides, the WCAB
determined that it did not have jurisdic-
tion to award the leave of absence pay
requested under Section 4850, because
Sanchez had resigned. The WCAB- did,
however, accept jurisdiction over
petitioner's remaining claims for
permanent emotional injuries. [ER 1103]
Thus, the WCAB awarded petitioner
$8,662.50 for his permanent partial
disability (30 1/2%) caused by stress-
related emotional injuries occurring
Guring his employment, up to September
10, 1979. (ER 1103) Petitioner
misstates in his Petition that he was
awarded disability only from March to May
- 8-
. |
eS te
) 1979 -- petitioner may have only worked
| from March to May 1979, but he was
awarded benefits covering the period from
March to September, at which time he
resigned. Further, because he was conm-
pensated for a "permanent disability," he
received his emotional distress award for
any injuries continuing into the future.
Vv. PROCEDURAL HISTORY OF CASE
Petitioner and two other Latino
Police Officers filed this action in
United States District Court, Central
District of California, on May 20, 1979,
1/ The original parties to this action were:
(1) plaintiffs Jesse J. Sanchez, Victor Torres
and Robert Caro, and (2) defendants City of Santa
Ana, City of Santa Ana Police Department, Police
Chief Raymond C. Davis, Personnel Director,
Donald Bott, Captain E.B. Hansen, Captain Robert
Stebbins, Lieutenant Oliver Lee Drummond,
Lieutenant Michael Lewellen, Lieutenant Dale
Sterzer, Lieutenant Norwood Williams, Lieutenant
Lawrence Pitzer, Sergeant Gary Dixon, Sergeant
William Bruns, Sergeant John Collins, Sergeant
(continued...)
alleging various constitutional and
common law claims arising out of their
employment and/or the termination of
their employment with the Department.
{Appendix D.8] Plaintiffs named the
City, Chief Davis and sixteen (16) other
individuals as defendants.
On June 3, 1983, the district court
entered partial summary judgment? only in
favor of petitioner and only against the
City and Chief Davis” as to petitioner's
procedural due process claim relating to
l/ (...continued)
Richard Faust, Sergeant James McDaniels, Sergeant
Michael Lanners, and Sergeant John Dittus. The
claims of Torres and Caro against all defendants,
as well as _ Sanchez’s claims against all
defendants except for the City of Santa Ana, were
dismissed by the District Court and are the
subject of the companion appeal, attached hereto
as Appendix 0O.
2/ Contrary to petitioner’s mischaracterization
of the record, respondent did dispute the issues
stated in petitioner’s Motion for Partial Summary
Judgment. [ER 939-48; ER 1223-28]
3/ The District Court later exonerated Chief
Davis from personal liability. [Appendix D.8]
- 10 -
——————————
the removal of his merit pay. [Appendix
H.1-2] Then, after a 39-day trial which
began in April 1985, the district court
determined that the three plaintiffs had
failed to present any evidence of
discrimination or wrongful treatment.
[ER 421-27] In fact, Judge Kenyon stated
that the evidence showed they had been
treated "with kid gloves," that "no
reasonable person could find from the
evidence presented that the Department
engaged in any discriminatory actions"
and that plaintiff Sanchez had used the
discrimination laws as a "sword" to
"intimidate or harass individuals into
conforming their conduct to [his] dic-
tates." [ER 421-27] Thus, on June 18,
1985, the court directed a verdict in
favor of the City and all of the individ-
ual defendants, with the exception of
petitioner's procedural due process claim
against the City (relating to the removal
- ll-
of his merit pay) for which partial
summary judgment previously had been
granted. [Appendix F.9)]
In October 1985, the district court
began a new trial (with the same jury)
for the sole purpose of determining
petitioner's damages for the alleged
procedural due process violation related
to the removal of his merit pay.
[Appendix D.9] In pre-trial briefing,
the City (respondent herein) argued that
petitioner's claim for emotional distress
damages was precluded by his previous
adjudication and recovery before the
WCAB. [ER 1096-99] Only after the
district court had rejected the preclu-
sion argument, petitioner approached
respondent and asked respondent to agree
upon the amount of income that would have
been earned by petitioner under various
pay steps, and further asked respondent
to stipulate that any recovery should be
- 12 =
offset by including petitioner's previous
workers' compensation recovery, as part
of his actual earned income for 1980.
(ER 1015] Respondent agreed to this
stipulation only because the district
court had previously ruled on its
preclusion argument, and respondent
sought to facilitate a presentation of
the evidence. Petitioner mischarac-
terizes the record in his Petition by
stating that "Respondent elected, by
stipulation with petitioner, to have the
sum received in the WCAB proceeding
setoff .. ." (See Petition, p. 53).
Respondent pnever made an "election"
between two alternative theories and
never abandoned its preclusion argument.
At trial, the jury awarded
petitioner $400,000 in back and future
pay for a "constructive discharge"
because of the alleged procedural due
process violation in the manner of his
- 13 -
merit pay removal, and $500,000 in
damages for emotional distress arising
from this procedural due process viola-
tion. {Appendix D.9] Contrary to
petitioner's misstatement, respondent did
present evidence at the trial on damages,
by both presenting its own witness and
cross-examining petitioner's expert
witnesses. Both parties appealed the
decision. [ER 453, 454]
On appeal, the Ninth Circuit
properly reversed the emotional distress
award for petitioner, but affirmed
petitioner's $400,000 verdict for the
alleged procedural due process violation.
[Appendix D.17] The Ninth Circuit deter-
mined that because emotional injuries are
fully compensable under California's
Workers' Compensation Act, and because
petitioner had already sought and recov-
ered damages for his emotional injuries
in his claims before the WCAB, his emo-
- 14 -
i
tional distress claim arising from the
same circumstances and time period in
this action was barred, and he should not
have been allowed an opportunity to
obtain a double recovery. [Appendix
D.17)7 Thus, the Ninth Circuit vacated
the jury's $500,000 award for emotional
distress damages. [Appendix D.17] Peti-
tioner's Petition for Rehearing before
the Ninth Circuit was denied on February
22, 1991, and this Petition for Writ of
Certiorari followed. [Appendix E]
4/ Contrary to petitioner’s statement, there is
no indication that the Ninth Circuit "ignore[d]
the fact that respondent had elected" an offset
of petitioner’s workers’ compensation recovery.
In fact, petitioner never raised the allegation
that the parties had stipulated to an offset
before the Ninth Circuit in this appeal.
Moreover, the Ninth Circuit did determine that
respondent had not waived its right to assert
preclusion. [Appendix D.16]
- 15 -
ARGUMENT
I.
PETITIONER MISSTATES THE NINTH
CIRCUIT'S DECISION BELOW - THE
NINTH CIRCUIT CORRECTLY HELD
THAT PETITIONER'S RECOVERY
BEFORE A STATE ADMINISTRATIVE
AGENCY PRECLUDES HIS RECOVERY
FOR THE SAME INJURY UNDER
SECTION 1983
A. THE NINTH CIRCUIT DETERMINED
THAT PETITIONER'S RECOVERY
BEFORE THE WCAB PRECLUDED A
SECOND RECOVERY FOR EMOTIONAL
DISTRESS INJURY AND DID NOT
RELY UPON THE CALIFORNIA
WORKERS' COMPENSATION SYSTEM'S
EXCLUSIVITY PROVISION
First, petitioner erroneously argues
that the Ninth Circuit's decision was
based on the exclusive remedy provision
of California's Workers' Compensation Act
and that the Court's decision conflicts
with other circuits in applying the
exclusive remedy provisions of a state's
workers' compensation system. (See
Petition, pp. 20-28) Plaintiff, however,
- 16 -
completely mischaracterizes the basis of
the Ninth Circuit's decision, and thus,
misstates the primary issue herein.
The Ninth Circuit stated the issue
herein as follows: "The City contends
that Sanchez's claim in federal court for
emotional distress, is barred under res
judicata principles by his state workers'
compensation award. On this point the
City prevails." [Appendix D.15-16]
Similarly, in reaching its holding, the
Ninth Circuit § stated, "Sanchez has
already recovered damages under the
workers' compensation system for his
emotional injuries. We therefore vacate
the jury's damage award » ei
[Appendix D.17]
Thus, it is clear that the Ninth
Circuit relied on the doctrine of res
judicata (or preclusion) in reaching its
decision to vacate the jury's award and
Gid not (as Petitioner claims) rely on
-17 -
the irrelevant exclusive remedy
provisions of California's Workers’
Compensation Act. Put simply, the Ninth
Circuit recognized that petitioner
elected to pursue a remedy for his
alleged work-related emotional injuries
through the workers' compensation systen,
that he obtained a monetary award for a
permanent emotional disability without
having to prove fault, and that he should
not be allowed an opportunity to improve
his award for the same injury in a
subsequent federal court action.
Second, in his attempt to show that
he is entitled to a second recovery under
Section 1983, petitioner also misstates
and mischaracterizes the entire nature of
the workers' compensation system by
describing it as a system of "limited
compensation" in which there is no
opportunity to raise "fault-based
Claims." Rather, workers' compensation
- 18 -
provides an opportunity for employees to
recover fully for their work-related
physical and emotional injuries, without
regard to negligence or fault. See, e.g.
Cal.Lab.Code § 3600. Thus, workers'
compensation allows an employee such as
petitioner to avoid having to prove fault
in order to facilitate complete recovery
-- it does not, as petitioner argues,
prevent the employee from asserting
"fault-based" claims.
Petitioner's attack on the workers'
compensation’ systen, based on his
unsupported claim that it denies a
plaintiff's federal rights, is conm-
pletely without merit. This Court upheld
the constitutionality of workers' compen-
sation systems and the important policies
enforced by such systems long ago.
Middleton v. Texas Power & Light Co.,
249 U.S. 152, 163, 39 S.Ct. 227, 230-31
(1919). Moreover, plaintiff erroneously
- 19 -
states that the holding of Howlett v.
Rose, on U.S. a ’ 110 §.Ct. 2430,
2443 (1990), is inconsistent with the
exclusive remedy provision of a workers'
compensation system. This is, at best,
a twisted reading of Howlett. In fact,
Howlett did not discuss workers' compen-
sation exclusivity at all. Rather, in
Howlett, this Court addressed whether a
state law could prohibit federal claims
while allowing a plaintiff to bring
similar state claims. In holding that
such a state statute which specifically
discriminated against federal claims was
unconstitutional, the Court also stated
that it "must act with utmost caution"
before challenging a neutral state rule
which denies a federal right. Howlett,
_... US. at ., 110 8.:CE. at 3440.
Workers' compensation remedies are part
of a "neutral state rule," and petitioner
presents no basis in this case to chal-
- 20 -
oats tn Ce etm a le
lenge the remedies he voluntarily chose
to pursue under California's workers'
compensation systen.
In sum, petitioner's first argument
as to why this Court should grant a writ
of certiorari is crucially flawed for at
least two reasons: (1) the Ninth Circuit
did not rely primarily on the exclusivity
provisions of California's Workers’
Compensation Act to reach its decision,
and (2) there is no basis for contending
that the remedial provisions of
California's workers' compensation
system, to which petitioner voluntarily
availed himself, conflict with the
remedies otherwise available under
a
Section 1983.
- 21-
B. THE NINTH CIRCUIT CORRECTLY
APPLIED THIS COURT'S RULE
CONCERNING THE PRECLUSIVE
EFFECT OF A STATE ADMINISTRA-
TIVE DECISION IN A SUBSEQUENT
SECTION 1983 ACTION
Petitioner's second argument as to
why this Court should issue a writ of
certiorari is that the Court’ should
determine whether claim preclusion should
apply to an administrative agency's find-
ings in a subsequent Section 1983 suit.
Petitioner ignores the fact, however,
that this issue has already been decided
by the United States Supreme Court, and
this Court's rule is being followed by
the circuit courts.
Through a series of recent
decisions, this Court has established the
rules to determine the preclusive effect
of a state administrative agency's
decision in a case subsequently brought
in federal court. First, in Kremer v.
Chemical Construction Corp., 456 U.S.
« 22 ~
ear Wa Boe a
461, 102 S.Ct. 1883 (1982), this Court
determined that under 28 U.S.C. § 1738,
a federal court deciding a Title VII
claim must give preclusive effect to a
decision of a state court which upheld a
state administrative agency's finding of
no discrimination.
Second, in Migra v. Warren City
School Dist., 465 U.S. 75, 104 S.Ct. 892
(1984), this Court determined that a
state court's judgment reviewing an
administrative decision would have the
same preclusive effect in a subsequent
Section 1983 action that the state court
would give the decision. Thus, in these
two cases, the Court established that
state administrative determinations were
generally entitled to preclusive effect,
in some cases depending upon the appli-
cable state law. Furthermore, neither of
these two decisions made any distinction
- 23-
between "claim preclusion" and "issue
preclusion."
Then, in University of Tennessee v.
Elliott, 478 U.S. 788, 796-99, 106 S.Ct.
3220, 3225-3226 (1986), this Court
answered the exact question which
petitioner has presented herein. In
Elliott, this Court held that when a
state administrative agency acts in a
judicial capacity and resolves disputed
issues, the federal court deciding a
subsequent Section 1983 claim should give
the same preclusive effect to the
agency's decision -- even if it is
unreviewed by a state court -- as would
be given under state law:
"Accordingly, we hold that when a
state agency ‘acting in a judicial
capacity .. . resolves disputed
issues of fact properly before it
which the parties have had an
adequate opportunity to litigate,'
(citation), federal courts must give
the agency's factfinding the same
preclusive effect to which it would
be entitled in the State's courts."
- 24 -
id., 478 U.S. at 799, 106 S.Ct. at 3226.
In Elliott, the Court discussed the
important policies which favor giving
preclusive effect to administrative deci-
sions. In particular, the Court focused
on the need for judicial finality and
repose, and the policies of avoiding
repetitive litigation and conserving
judicial resources. Elliott, 478 U.S. at
798-99, 106 S.Ct. at 3226. Moreover,
this Court very recently reaffirmed the
presumption generally favoring adminis-
trative preclusion. In Astoria Federal
ssoc. P
U.S. ’ s.ct , 59 U.S.L.W. 4616
(June 10, 1991) ,2 although the Court
found that state administrative decisions
5/ In Astoria, the Court also reiterated that
the reasoning favoring administrative preclusion
particularly applies in Section 1983 claims (as
opposed to Title VII and ADEA claims). Id.,
59 U.S.L.W. at 4617.
- 25 -
should not be given preclusive effect in
ADEA actions, the Court stated:
tive bodies that have attained
finality. . .. To hold otherwise
would, as a general matter, impose
unjustifiably upon those who have
already shouldered their burdens,
and drain the resources of an
adjudicatory system with disputes
resisting resolution."
Id. (emphasis added). ‘
Elliott's holding regarding the
preclusive effect of state administrative
decisions has also been followed through-
out the circuit courts. See e.g., Fondel
vy. Grumman Aerospace Corp., 884 F.2d 657,
658-59 (2nd Cir. 1989) (following
Elliott, yet denying preclusive effect to
administrative decision due to New York
law); Barnes v. McDowell, 848 F.2d 725,
730 (6th Cir. 1988) cert. denied, 488
U.S. 1007 (1989) (following Elliott, yet
determining no preclusive effect to
- 26 -
oe tC AR sie bettie th
Personnel Board's determination under
state law); Stillians v. State of Iowa,
843 F.2d 276, 281, n.3 (8th Cir. 1988)
(implying that under Elliott and in order
to enforce policy of "repose," federal
courts should apply res judicata to
administrative decisions); Eilrich v.
Remas, 839 F.2d 630, 632-33 (9th Cir.
1988), cert. denied, 488 U.S. 819, 109
S.ct. 60 (1988)% (following Elliott and
holding that district court appropri-
ately applied California law to give
preclusive effect to administrative
decision in subsequent Section 1983
action); Amoco Production Co. v. Heiman,
904 F.2d 1405, 1415 (10th Cir. 1990)
6/ This Court has previously denied a petition
for writ of certiorari which raised the same
question presented for review herein. In
Eilrich, 488 U.S. 819, 109 S.Ct. 60 (1988),
Docket No. 87-1895, one question presented was
“whether unreviewed legal conclusions of state
agencies must be given collateral estoppel effect
in subsequent actions under 42 U.S.C. § 1983."
Id.
- 27 -
cert. denied, 111 §s.Ct. 350 (1990)
(following Elliott and determining that
under state law administrative agency's
determination is entitled to preclusive
effect); Buckhalter v. Pepsi-Cola General
Bottlers, Inc., 820 F.2d 892, 895 (7th
Cir. 1987) (following Elliott and holding
that determination by state Human Rights
Commission was entitled to preclusive
effect in Section 1983 claim); cf.,
Gjellum v. City of Birmingham, 829 F.2d
1056, 1062 (11th Cir. 1987) (holding that
under Elliott, the federal court must
apply state issue preclusion rules, but
not claim preclusion rules).
Petitioner voluntarily sought a
remedy before the WCAB for the same
emotional distress injury claimed in the
action before the district court. The
WCAB made findings of fact and deter-
mined the nature and extent of peti-
tioner's injury. Based upon the above
- 28 -
decisions, petitioner cannot now sidestep
the WCAB's findings and relitigate his
alleged emotional distress injury in an
attempt to obtain a more lucrative award.
Thus, despite petitioner's attempts
to confuse the issue by distinguishing
between "claim preclusion" and "issue
preclusion,"“ the Ninth Circuit herein
applied the correct rule adopted by this
Court and accepted by the circuit courts,
when it held, "Whether Sanchez's
compensation award for emotional injuries
bars under res judicata principles his
section 1983 claim for damages for
emotional distress is answered by state
law." {see Appendix D.17 (emphasis
added) ]
Z/ In its recent decision concerning the
preclusive effect of a state administrative
agency’s decision in a subsequent ADEA action,
this Court (as in its previous decisions)
rejected any distinction between "claim" and
"issue" preclusion. Astoria, U.S. at __,
__ S.Ct. at __—s_,, 559 ' U.S.L.W. at 4617.
- 29 -
Cc. THE NINTH CIRCUIT CORRECTLY
DETERMINED THAT, UNDER
CALIFORNIA LAW, PETITIONER'S
RECOVERY HEREIN IS BARRED BY
EITHER CLAIM OR ISSUE
PRECLUSION
California courts apply the
following rule to determine whether a
subsequent case is barred under claim
preclusion: “a judgment for the defen-
dant is a bar to a subsequent action by
the plaintiff on the same injury to the
same right, even though he presents a
different legal ground for relief."
Slater v. Blackwood, 15 Cal.3d 791, 795,
126 Cal.Rptr. 225, 226 (1975) (citations
omitted) (emphasis in the original).
Moreover, the California Supreme
Court has stated that a prior judgment
bars relitigation "on matters which were
raised _or could have been raised, on
matters litigated or litigable." Busick
v. Workmen's Compensation Appeals Board,
7 Cal.3d 967, 975, 104 Cal.Rptr. 42, 48
- 30 -
(1972) (emphasis added) (holding that
assault and battery judgment bars second
recovery under workers' compensation
system). Thus, the Ninth Circuit herein
correctly determined that under
California law, petitioner's claim for
emotional distress injuries arising out
of his employment were "litigable" before
the WCAB, and thus his WCAB recovery for
emotional injuries precluded a _ second
recovery on the same claim, citing
California Labor Code § 3601 and
Hol] i _Refri ti Sa] : I
v. Superior Court, 164 Cal.App.3d 754,
757, 210 Cal.Rptr. 619, 620 (1985).
[Appendix D.17]
The California Supreme Court has
Similarly defined issue preclusion as
follows:
", . . a party will be collaterally
estopped from relitigating an issue
only if (1) the issue decided in a
prior adjudication is identical with
that presented in the action in
= 31 -
question; and (2) there was a final
judgment on the merits; and (3) the
party against whom the plea is
asserted was a party or in privity
with a party to the_ prior
adjudication."
Clemmer_v. Hartford Ins. Co., 22 Cal.3d
865, 874, 151 Cal.Rptr. 285, 288 (1978).
The record establishing the elements
of both claim and issue preclusion, and
thus establishing the preclusive effect
of petitioner's workers' compensation
recovery, is clear:
Le In his action before the WCAB,
petitioner raised his claims
regarding his alleged emo-
tional, stress-related injuries
arising from his employment
from March to September 1979.
‘TER 1103)
2. Petitioner's emotional distress
claims arose from his employ-
ment, and thus, were
- 32 -
recoverable before the WCAB.
[ER 1103]
The WCAB held aée hearing
regarding the nature and extent
of petitioner's emotional,
stress-related injuries arising
out of his employment with
respondent. [ER 1103}
Both petitioner and respondent
were parties to the WCAB action
and were present at the hear-
ing. [ER 1103]
The WCAB awarded petitioner
damages for his permanent
disability caused by his
emotional injuries. [ER 1103}
The WCAB award became final
when petitioner chose not to
appeal the decision to the
California courts. [Appen-
dix D.7]
- 33 -
Petitioner, however, mischarac-
terizes the record by arguing that the
"state court was unable to address the
merits of the claim" and “the state
tribunal ruled that it lacked jurisdic-
tion or authority to decide some or all
of the claims or issues before it." (See
Petition, pp. 41-42). The record belies
these statements in at least’ three
crucial ways.
First, petitioner was not "barred
for jurisdictional reasons" from
presenting the emotional distress claims
that are the subject of this case. The
emotional distress damages which peti-
tioner sought in his Section 1983 action
were for respondent's conduct during the
period from March to September 1979.9
8/ By virtue of the district court’s grant of
summary judgment on the procedural due process
claim and its dismissal of all other claims, the
sole possible basis for petitioner's claim for
emotional injuries under his Section 1983 claim
(continued...)
- 34 -
© an Cat CPN Bist Le Ae.
~ MD IS LMR IY
This is precisely the claim which was
both brought before the WCAB and decided
by the WCAB. The WCAB determined that it
"lacked jurisdiction" only to award
petitioner leave of absence pay. [ER
1103, 1107) The WCAB did, however,
compensate petitioner for a “permanent
disability," thus not only covering
petitioner's emotional injuries from
March to September 10, 1979, but also
projecting that recovery into the future.
Similarly, the emotional injury claim
petitioner pursued in the district court
was based upon his alleged injuries
occurring during his employment with the
Department up through September 10, 1979.
In sum, contrary to petitioner's claims,
8/ (...continued)
was the removal of his merit pay steps which
occurred in the March to September 1979 time
frame. This is the same time period for which
petitioner sought and obtained full recovery for
his permanent emotional distress injuries in the
WCAB hearing.
- 35 -
the WCAB fully compensated him for his
emotional injuries.
Petitioner's attempts to distin-
guish Migra, 465 U.S. 75, 104 S.Ct. 892,
are entirely disingenuous. Like the
plaintiff in Migra, petitioner herein
sought and obtained recovery for conduct
which allegedly occurred prior to his
resignation, and the recovery took into
consideration his continuing "permanent
disability," thus compensating him for
the period following his resignation.
Likewise, the jury's award also con-
sidered petitioner's permanent emotional
injuries, and compensated him therefor.
Thus, as in Migra, petitioner was compen-
sated for the entire period of his
alleged injuries, and the Ninth Circuit
properly recognized that he should not
have been allowed to pursue a second
recovery and obtain a second award for
the same injury.
- 36 -
ae MSY pital be, Laan Pet E he cre §
fad es Aden
Second, petitioner erroneously
argues that the WCAB did not consider the
"merits" of petitioner's emotional dis-
tress clain. Indeed, the only issue
which the WCAB did decide on the merits
is the same issue for which petitioner
sought emotional distress damages under
Section 1983. Simply put, the WCAB
determined whether petitioner suffered
emotional distress and stress-related
injuries as a result of his employment
with respondent. That is precisely the
"merits" of petitioner's claim for
emotional distress under Section 1983.
Third, petitioner erroneously (and
surprisingly) argues that he was not
entitled to recover any emotional dis-
tress damages in his action before the
WCAB. (See Petition, pp. 45-46) This
ludicrous argument ignores the fact that
petitioner sought an award, and the WCAB
did, in fact, award petitioner damages
- 37 -
for his emotional and stress-related
injuries. This argument also ignores the
fact that petitioner has never tendered
back his WCAB recovery to the City after
suddenly discovering that he allegedly
was "not entitled" to a WCAB recovery.
In sum, the Ninth Circuit correctly
determined that under California law,
petitioner's recovery before the WCAB
barred his second recovery on the same
Claims for emotional distress injuries.
Thus, petitioner misstates both the law
and the facts when he argues that he "has
been effectively left without any remedy
at all for any emotional distress or
injuries for the period commencing in May
1979 and thereafter." This is precisely
the remedy that petitioner received from
the WCAB.
- 38 -
Piette 4
II.
PETITIONER (1) MISSTATES THE
LAW AND THE FACTS REGARDING THE
SECONDARY ISSUE HEREIN BY ARGU-
ING THAT RESPONDENT DID NOT
PROPERLY RAISE THE DEFENSE OF
PRECLUSION; AND (2) MISSTATES
THE IMPORTANCE OF THE ISSUE
A. RESPONDENT DID RAISE IN A
PROPER AND TIMELY MANNER THE
ISSUE OF THE PRECLUSIVE EFFECT
OF PETITIONER'S PRIOR RECOVERY
FOR THE SAME ALLEGED INJURY
Petitioner has both misstated the
record and miscited authorities to argue
that respondent did not timely raise the
defense of preclusion.
i. PETITIONER MISSTATES THE
RECORD
First and foremost, respondent did
raise the defense of preclusion before
the damages phase of the trial, at which
time the issue became ripe. Respondent
asserted its position that petitioner was
precluded from recovery in its pre-trial
- 39 -
"Brief re. Allowable Damages." [ER 1096-
99; Appendix D.17} Thus, the district
court was given an opportunity to rule
upon the preclusion issue before the
trial on damages, and petitioner has
misstated the facts and attempted to
mislead the Court by stating that
respondent did not afford "the district
court the opportunity to rule upon [the
defense) prior to post-trial motions.
-" (See Petition, p. 53).
Second, petitioner erroneously
states that respondent “elected” to
reduce petitioner's award in the district
court by his WCAB recovery (apparently
arguing that this alleged "election"
amounted to a waiver of the preclusion
defense). (See Petition, p. 53).
Petitioner never raised this issue on
appeal before the Ninth Circuit;
accordingly, the alleged "election"
likewise cannot be raised in this
- 40 -
;
|
;
:
:
Pies on
Petition. Moreover, petitioner misstates
the record. Contrary to petitioner's
attempt to show that respondent abandoned
its preclusion argument, respondent
simply agreed to stipulate to an amount
petitioner had earned for 1980 (which
included the WCAB recovery [ER 1015]}) in
order to avoid a costly and time-
consuming trial on damages; this
stipulation was reached, however, only
after the district court had rejected
respondent's claim that petitioner's
emotional distress recovery was entirely
precluded. Respondent's stipulation was
in no way an abandonment or waiver of its
preclusion defense.
Third, petitioner fails to mention
two key facts herein: (1) respondent
could not raise the defense of the
preclusive effect of the WCAB award when
it filed its Answer in 1979 because the
WCAB did not reach a decision until two
- 41 «
years later, and (2) because respondent
raised the defense before the trial on
damages, the defense was actually
litigated at the damages phase of the
trial. These two facts establish (as the
Ninth Circuit determined) that respondent
did raise the defense in a timely manner.
2. THE AUTHORITIES CITED ARE
INAPPOSITE
Petitioner argues that the "Ninth
Circuit has placed itself at odds with
several other circuits" (emphasis added)
and then proceeds to cite only two cases,
both of which are distinguishable from
the case at bar.
First, in Home Depot, Inc. v. Guste,
773 F.2d 616, 620-21 n.4 (5th Cir. 1985),
the Court stated in a footnote that
because the appellant had never raised
the defense of preclusion, the court
would not consider whether it was
- 42 -
Ae AW otic ech Nid ote, Cea
applicable in that case. Respondent
herein, on the other hand, did raise the
defense and raised it before the trial on
damages (when the issue became signifi-
cant). [ER 1096-99; Appendix D.17]
Moreover, Home _ Depot involved the
preclusive effect of a recent Supreme
Court decision, and not the preclusive
effect of plaintiff's prior recovery,
which was the issue decided herein.
Thus, Home Depot is clearly distinguish-
able on its facts, and the holding is
inapplicable herein.
Second, in State Farm Mutual Auto
s. Vv id-Contin as Bs
518 F.2d 292, 296 (10th Cir. 1975), the
preclusive effect of a prior judgment was
not even an issue. Rather, at issue in
State Farm was the defense of estoppel
under a particular rule of insurance law.
Moreover, in State Farm, the defense was
not raised at trial, whereas respondent
- 43 -
herein did raise the issue at the damages
phase of the trial.
Finally, petitioner miscites two
inapplicable Ninth Circuit decisions to
argue erroneously that the decision
herein is “at odds" with other Ninth
Circuit decisions. Contrary to peti-
tioner's assertion, United States v.
First Nat. Bank of Circle, 652 F.2d 882,
886-87 (9th Cir. 1981) did not hold that
a theory which was not included in a pre-
trial order could never be _ tried.
Rather, in First Nat. Bank, the court
merely accepted the respondent's argument
that the theory both was not included in
the pre-trial order and contradicted the
facts stated in the pre-trial order. Id.
The Court also stated, however, that pre-
trial orders should be liberally
construed. Jd. The preclusion defense
herein, however, did not contradict the
facts of any pre-trial order -- although
- 44 <-
ey bie
m Pon ee
PN SP Bei St le PAL Can tH HDR RRB Rta A SA sap ls
not mentioned in the pre-trial order, it
was undisputed that petitioner had sought
and gained recovery before the WCAB.
Likewise, Wood v. Sunn, 865 F.2d
982, 987 (9th Cir. 1988) is inapplicable.
Unlike defendant in that case, respondent
herein did present the defense to the
district court before the trial on
damages, whereas the holding in Wood v.
Sunn was based on the failure to raise
the defense before trial.
Thus, for the above reasons, as well
as petitioner's mischaracterization of
the record and authorities, the Court
should deny the Petition on the second
question presented.
- 45 =
B. THE ALLEGED FAILURE TO TIMELY
RAISE THE DEFENSE OF PRECLU-
SION IS NOT AN “IMPORTANT
ISSUE" DESERVING OF A WRIT OF
CERTIORARI
"A petition for writ of certiorari
will be granted only when there are
special and important reasons therefor."
Rules of the United States Supreme Court,
Rule 10.
Respondent's alleged failure to
timely raise the preclusion defense, a
contention which the Ninth Circuit
rejected, is not the sort of "special and
important" issue that needs resolution by
the United States Supreme Court. More-
over, as explained above, petitioner has
exercised license with the legal authori-
ties cited above in a misguided attempt
to show that a "conflict" exists among
the circuit courts, and that this is an
issue worthy of Supreme Court review.
Likewise, petitioner has attempted to
- 46 -
wendeibaiudy zm
pene, lal splhia thabdla ie a
a eee Te
Pe ee 2 eS
ee Mee nO. Moi ee oa tee Oe
aNd Ci Seong, eg ie Ln Aa BILE
manufacture an important issue. by
mischaracterizing the Ninth Circuit's
decision herein as a "rule," when in
fact, the Ninth Circuit recognized the
general rule that preclusion must be
pleaded, but also determined that the
specific circumstances of this case
warranted an exception to that rule.
[Appendix D.17] This is just another
example of petitioner's unwillingness to
accept any adverse ruling without
multiple challenges.
In short, this is not the sort of
question which this Court should spend
its limited and valuable time and
resources deciding.
- 47 -
IiIt.
PETITIONER'S THIRD QUESTION
PRESENTED IS MOOT DUE TO THE
NINTH CIRCUIT'S RECENT DECISION
ON REHEARING OF THE COMPANION
CASE OF SANCHEZ V. CITY OF
SANTA ANA
Shortly after petitioner filed this
Petition for Writ of Certiorari, the
Ninth Circuit on rehearing in Sanchez II
awarded petitioner the requested attor-
ney's fees. [Appendix O] Accordingly,
the third question presented herein is
now moot.
CONCLUSION
In sum, petitioner asks this Court
to give him a "second bite at the apple"
by reversing the Ninth’ Circuit's
determination that petitioner's recovery
before the WCAB bars a second recovery
for the same injury. Moreover, peti-
- 48 -
tioner misstates the basis of the
decision below and asks this Court to
reopen an issue which was settled five
years ago with this Court's decision in
University of Tennessee v. Elliott. For
the reasons set forth above, respondent
respectfully requests that the Court deny
this Petition for Writ of Certiorari.
DATED: June 23, 1991
Respectfully submitted,
CHARLES W. MATHEIS, JR.
BEAM & BROBECK
By:
Charles W. Matheis, Jr.
Attorneys for Respondent
City of Santa Ana
OC1-4809 - 49 -
APPENDIX M
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LEAGUE OF UNITED LATIN
AMERICAN CITIZENS,
LAWRENCE FELIX, NARCISO
C.A. NO.
CV 74-767-F
ARCE, and EFREN LOZANO, SECOND
Individually, and on CONSENT
behalf of all others DECREE AND
Similarly situated, FINAL
JUDGMENT
Plaintiffs,
THE CITY OF SANTA ANA, A
Municipal Corporation,
JERRY M. PATTERSON, in
his official capacity as
Mayor of the City of
Santa Ana, BRUCE C.
SPRAGG, in his official
capacity as City Manager
of the City of Santa Ana,
DONALD BOTT, in his
official capacity as Fire)
Chief of the City of )
Santa Ana, and RAYMOND C.)
DAVIS, in his official )
capacity as Police Chief )
of the City of Santa Ana,)
)
)
)
)
)
)
)
)
)
)
Vv. )
)
)
)
)
)
)
)
)
)
)
)
)
Defendants. )
)
Plaintiffs filed a complaint herein
on March 23, 1974, alleging’ that
defendants have engaged in employment
APPENDIX M.1
discrimination based on race and national
origin. A trial has been held herein
resulting in a decision and opinion
reported at 410 F.Supp. 873, supplemented
by a subsequent decision reported at 13
FEP Cases 1019, 13-E.P.D. 411,308. An
interlocutory appeal taken by the
defendants has been dismissed by the
Ninth Circuit Court of Appeals by order
dated September 28, 1977.
By a consent decree _ entitled
"Consent Decree in Partial Settlement of
Action," entered on December 16, 1977,
most, but not all issues in this lawsuit
were settled. The instant Second Consent
Decree constitutes a settlement of all
remaining issues between the parties at
the District Court level. Defendant,
however, reserves the right to appeal a
single ruling.
The defendants enter into’ the
instant consent decree without admitting
APPENDIX M.2
liability of the validity of any of
plaintiffs' claims. This decree is
entered into as a partial settlement of
an existing dispute, and defendants do
not admit that there is or has been any
violation of any law, rule, or
regulation. Nothing herein shall require
the employment, promotion or selection of
less qualified persons over more
qualified persons as determined by valid
selection criteria, nor require
employment of persons who do not meet
valid qualification standards, nor
require displacement of incumbent
employees or hiring of unneeded
employees.
Declarations by counsel filed herein
show that notice to class members of the
instant decree has been carried out. No
objections to the settlement have been
made.
APPENDIX M.3
On December 20, 1974, Lawrence Felix
was certified as class representative.
The
represented class herein is as
follows:
in
"(a) all Mexican-Americans who
have applied for employment as
police officers or firefighters with
the defendant City of Santa Ana
within three years of the
commencement of this action; (b) all
Mexican-Americans who presently are
applicants for such employment; and
(c) all Mexican-Americans who may
apply for such employment in the
future, who apply during’ the
effective term of any final decree
this Court may issue eo « «®
The term "Mexican-American" as used
this Consent Decree shall be
interpreted to mean any person who has a
"Spanish surname" or is "Spanish
language" as those terms are utilized by
APPENDIX M.4
the United States Department of Commerce,
Bureau of the Census, in the 1970 United
States Census.
The Court has reviewed this Second
Consent Decree and Final Judgment of
Lawsuit and the Declaration of
Plaintiffs' counsel submitted
concurrently herewith and has determined
that the provisions herein are fair and
reasonable to all parties and _ the
represented class.
NOW, THEREFORE, IT Is HEREBY
ORDERED, ADJUDGED AND DECREED that:
i. Plaintiffs shall seek no back
pay claims for class members
Peter Jimenez, Mike Alvarez,
and John Sierra. Defendants
shall offer firefighter
positions to these three class
members, as vacancies occur,
provided the above-named three
class members successfully
APPENDIX M.5
complete the remaining portions
of the selection process, i.e.,
the medical examination and
background check.
Defendants may appeal only this
Court's ruling on the issue of
whether the "Form 45" Fire
Aptitude Test has been shown to
be job-related or validated
according to the requirements
of the law. Neither plaintiffs
nor defendants shall appeal any
other issue, including’ the
issue of whether the "Form 45"
test had an adverse impact upon
Mexican-American applicants.
Plaintiff Felix shall receive
$500 in full and _ complete
satisfaction of all claims he
may have against defendants.
This District Court already has
ruled at pages 74 and 75 of the
APPENDIX M.6
Memorandum Opinion, filed March
12, 1976, that a hiring order
shall be entered herein for
both police officer and
firefighter positions. The
Court, however, left to future
proceedings, or to Court-
approved stipulation of the
parties, a determination of the
extent and duration of that
hiring order. By stipulation
the hiring orders shall be as
follows:
a. No hiring order shall
be entered for police
officer positions;
b. During any calendar
year, defendants
shall engage in good
faith efforts to
insure that no less
than approximately
APPENDIX M.7
30% of all new
appointees into
firefighter positions
shall be Mexican-
Americans until such
time as 23% of the
entire uniformed
workforce in the
Santa Ana Fire
Department is
Mexican-American;
Defendants shall file an annual
report with the Court, and
serve a copy upon plaintiffs'
attorneys, on the second Monday
in January of each year that
the hiring order remains in
effect, beginning January,
1980. The report shall set
forth:
a. The total number of
persons hired into
APPENDIX M.8
the Santa Ana Fire
Department during the
immediately preceding
calendar year;
The total number of
Mexican-Americans
hired into the Fire
Department during the
immediately preceding
calendar year;
The total number of
uniformed employees
in the Fire
Department as of the
date of the report;
and
The total number of
uniformed employees
in the Fire
Department who are
Mexican-American as
APPENDIX M.9
of the date of the
report.
Plaintiffs shall take no action
concerning a breach of the
provisions of Paragraph 5
absent giving defendants thirty
days notice and opportunity to
cure the breach.
The Court shall retain |
jurisdiction of this lawsuit
and this Consent Decree shall
remain in force and effect
until dissolved. Once the
percentage of Mexican-Americans
in the entire uniformed
workforce in the Santa Ana Fire
Department reaches 23%, the
Court shall, upon the motion of
defendants, or any of them, and
with no further cause shown,
order this Consent Decree
dissolved.
APPENDIX M.10
The back pay and other relief
to be received by all
identifiable class members,
other than Plaintiff Felix and
the class members mentioned in
paragraph one above, shall be
as set forth on the attached
Appendix "A".
Paragraph 10 of the _ first
Partial Consent Decree provided
that plaintiffs' counsel could
seek an additional costs and
fees award for work done at the
District Court level subsequent
to entry of the first Partial
Consent Decree. That paragraph
10 also provided that
Plaintiffs' counsel could seek
an additional costs and fees
award for work to be done on
any appeal on the condition
that plaintiffs were the
APPENDIX M.11
prevailing party on the appeal.
Paragraph 10 of the _ prior
Consent Decree shall be
modified as follows:
a. A. Thomas Hunt and
the other attorneys
employed by the
Center for Law in the
Public Interest shall
reduce their claim of
approximately $3,000
for costs and
attorneys' fees for
all time expended on
this case after entry
of the first Partial
Consent Decree on
December 16, 1977,
and before entry of
the instant Consent
Decree, to a sum of
$1,000.
APPENDIX M.12
b. Walter Cochran-Bond
shall reduce his
eieais o f
approximately $10,000
for costs and
attorneys' fees for
time expended on this
case after entry of
the first Partial
Consent Decree on
December 16, 1977,
and before entry of
the instant Second
Partial Consent
Decree, to a sum of
$6,500.
Cc. If defendants succeed
on any appeal of the
"Form 45" validation
issue, plaintiffs'
counsel shall receive
no costs or fees for
APPENDIX M.13
work done on the
appeal. z¢€
plaintiffs, however,
prevail on the
appeal, plaintiffs'
counsel shall be
entitled to a costs
and fees award,
provided that
plaintiffs' counsel
shall not seek more
than $5,000 for their
costs and fees for
work done on the
appeal. This $5,000
limitation shall not
be applicable should
this case be accepted
for review by the
United States Supreme
Court.
APPENDIX M.14
DATED: November , 1978
WARREN J. FERGUSON
United States District Judge
CONSENTED TO:
A. THOMAS HUNT
TIMOTHY B. FLYNN
Center for Law in the Public Interest
WALTER COCHRAN-BOND
PAUL BRYAN GRAY
By
A. THOMAS HUNT
Attorneys for Plaintiffs
KEITH L. GOW, City Attorney
EDWARD J. COOPER, Assistant City Atorney
CARRIE MACMILLAN, Deputy City Attorney
By
CARRIE MACMILLIN
Attorneys for Defendants
APPENDIX M.15
Michael Alvarez - potential job offer
Narciso Arce - job offer - appointed
January, 1977; backpay - $7,950.31
John Delgado - backpay - $12,803.37
Ernest Hernandez - job offer - declined,
employed as firefighter by City of
Chula Vista; backpay - $8,853.50
Peter Jiminez - potential job offer
Efren Lozano - job offer - appointed
January, 1977; backpay - $8,513.47
Andrew Montoya - backpay - $10,539.11
Richard Rodriguez - backpay - $3,969.50
John Sierra - potential job offer
APPENDIX M.16
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LEAGUE OF UNITED LATIN
AMERICAN CITIZENS,
et al.
CASE NUMBER
CV 74-767-F
NOTICE OF
Plaintiff(s) ENTRY
CITY OF SANTA ANA,
et al.
)
)
)
)
)
)
vs. )
)
)
Defendant(s) )
)
TO THE ABOVE NAMED PARTIES AND TO THEIR
ATORNEY(S) OF RECORD:
You are hereby notified that a
second consent decree & final judgment
in the above entitled
case was entered in the docket on
_____ November 7, 1978 °
You are also notified that if this
case was tried and you _ introduced
APPENDIX M.17
ee eters
exhibits into evidence, they must be
claimed at this office after the
expiration of thirty days from the
receipt of this notice. (After sixty
days in cases in which the United States,
its officers or agencies were parties)
Unless they are claimed within thirty
days after the expiration of the above
period, they will be destroyed pursuant
to Local Rule 20(a). If an appeal is
taken they will, of course, be held until
the Appellate Court finally determines
the matter. Exhibits which are attached
to a pleading will not be destroyed but
will remain as a permanent record in the
case file.
Civ 26 (11/86) NOTICE OF ENTRY
APPENDIX M.18
CERTIFICATE OF MAILING
I, Edward M. Kritzman, Clerk, United
States District Court, Central District
of California, and not a party to the
within action, hereby certify that on
November 7 , 1978, I served a
true copy of this notice of entry on the
parties in the within action by
depositing true copies thereof, enclosed
in sealed envelopes, in the United States
Mail in the United States Post Office
mail box at Los Angeles, California,
addressed as follows:
Paul B. Gray
1042 West Santa Ana Blvd., Ste. C
Santa Ana, CA 92703
Theodore A. Johnson
401 Civic Center Dr., West
Suite 570
P.O. Box 324
Santa Ana, CA 92702
Frank J. Fekete
Deputy City Attorney
20 Civic Center Plaza
Santa Ana, CA
APPENDIX M.19
EDWARD M. KRITZMAN, CLERK
By _Katherine M. Clatanoff
Deputy Clerk
NOTICE
IN ACTIONS ARISING UNDER THE ECONOMIC
STABILIZATION ACT, THE EMERGENCY
PETROLEUM ALLOCATION ACT, AND THE ENERGY
POLICY AND CONSERVATION ACT, NOTICES OF
APPEAL TAKEN FROM THIS JUDGMENT MUST BE
FILED IN THE TEMPORARY EMERGENCY COURT OF
APPEAL IN ACCORDANCE WITH THE RULES OF
PROCEDURE OF THAT COURT.
APPENDIX M.20
APPENDIX N
CALIFORNIA LABOR CODE SECTION 4850
§ 4850. Law enforcement officers,
firefighters and lifeguards; leave of
absence with salary in lieu of temporary
disability payments; duration of section.
Whenever any city policeman, harbor
policeman of any harbor district, city,
county, or district firefighter, sheriff
or any officer or employee of a sheriff's
office, any inspector, investigator,
detective, or personnel with comparable
title in any district attorney's office,
or lifeguard employed year round on a
regular, full-time basis by a county of
the first class, who is a member of the
Public Employees' Retirement System or
subject to the County Employees
Retirement Law of 1937 (Chapter 3
(commencing with Section 31450) of Part
3 of Division 4 of Title 3 of the
Government Code) is disabled, whether
temporarily or permanently, by injury or
APPENDIX N.1
illness arising out of and in the course
of his or her duties, he or she shall
become entitled, regardless of his or her
period of service with the city or
county, or district, to leave of absence
while so disabled without loss of salary
in lieu of temporary disability payments,
if any, which would be payable under this
chapter, for the period of the
disability, but not exceeding one year,
or until such earlier date as he or she
is retired on permanent disability
pension, and is actually receiving
disability pension payments, or advanced
disability pension payments pursuant to
Section 4850.3 of the Labor Code. This
section shall apply only to city
policemen, harbor district policemen,
sheriffs, or any officer or employee of
a sheriff's office, and any inspector,
investigator, detective, or personnel
with comparable title in any district
APPENDIX N.2
attorney's office, who are members of the
Public Employees' Retirement System or
subject to the County Employees
Retirement Law of 1937 (Chapter 3
(commencing with Section 31450) of Part
3 of Division 4 of Title 3 of the
Government Code) and excludes employees
of a police department whose principal
duties are those of a telephone operator,
clerk, stenographer, machinist, mechanic,
or otherwise, and whose functions do not
Clearly fall within the scope of active
law enforcement service, and excludes
employees of a county sheriff's office
whose principal duties are those of a
telephone operator, clerk, stenographer,
machinist, mechanic, or otherwise, and
whose functions do not clearly come
within the scope of active law
enforcement service. It shall also apply
to city, county, or district firefighters
who are members of the Public Employees'
APPENDIX N.3
Retirement System or subject to the
County Employees Retirement Law of 1937
(Chapter 3 (commencing with Section
31450) of Part 3 of Division 4 of Title
3 of the Government Code) and excludes
employees of the city fire department,
county fire department, and of any fire
district whose principal duties are those
of a telephone operator, clerk,
stenographer, machinist, mechanic, or
otherwise, and whose functions do not
clearly fall within the scope of active
firefighting and prevention service. It
shall also apply to deputy sheriffs
subject to the County Employees
Retirement Law of 1937 (Chapter 3
(commencing with Section 31450) of Part
3 of Division 4 of Title 3 of the
Government Codes). It shall also apply
to lifeguards employed year round on a
regular, full-time basis by counties of
the first class who are subject to the
APPENDIX N.4
County Employees Retirement Law of 1937
(Chapter 3 (commencing with Section
31450) of Part 3 of Division 4 of Title
3 of the Government Code). If the
employer is insured, the payments which,
except for the provisions of this
section, the insurer would be obligated
to make as disability indemnity to the
injured, the insurer may pay to the
insured.
This section shall remain in effect
only until January 1, 1990, and as of
that date is repealed, unless a later
enacted statute, which is chaptered
before January 1, 1990, deletes or
extends that date.
APPENDIX N.5
APPENDIX O
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Jesse J. SANCHEZ; VicToR TORRES; -
ROBERT CARO,
Plaintiffs-Appellants,
_ Nos. 85-6504;
Crry oF SANTA ANA; City OF 86-6226, 87-5614,
SANTA ANA PoLicE DEPARTMENT; 88-5853
Don Botts; Raymonp C. Davis; E.
B. HANSEN; ROBERT STEBBENS; D.C. No.
Norwoop WILLIAMS; LEE CV-79-1818-KN
DRUMMOND; LAWRENCE PITZER; ORDER AND
MICHAEL LEWELLEN; DALE STERZER; AMENDED
Gary Drxon; JoHn Couns; JoHn OPINION
McDANIELs; MICHAEL LANNERS;
WILLIAM Bruns; Jounn Dritus;
RICHARD Faust; JoHN McCLain,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David V. Kenyon, District Judge, Presiding*
Argued and Submitted
December 4, 1989—Pasadena, California
Filed July 11, 1990
Amended May 24, 1991
Before: Alfred T. Goodwin, Chief Judge,
Mary M. Schroeder and Diarmuid F. O’Scannlain,
Circuit Judges.
*Judge Irving Hill, District Judge for the Central District of California,
presided over many of the pretrial orders.
APPENDIX 0.1
COUNSEL
Meir J. Westreich, Glendale, California, for the plaintiffs-
appellants.
Charles Matheis, Jr., Santa Ana, California; Larry J. Roberts,
Orange, California; Daniel F. Fears, Paul, Hastings, Janofsky
& Walker, Costa Mesa, California, for the defendants-
appellees.
APPENDIX 0.2
SE oe
SANCHEZ v. Crry oF SANTA ANA 6581
ORDER
The order and amended opinion filed February 27, 1991 is
amended as follows:
Slip op. at 2216, line 7, following “fees”: insert a comma
after the word “fees” and then insert “including fees on
appeal,”
Slip op. at 2216, line 9, following “(9th Cir. 1990).”: insert:
“The district court shall determine the amount of fees that can
be attributed to the part of Sanchez’s appeal that was success-
ful, and shall award reasonable attorney’s fees and costs to the
extent of Sanchez’s success, both for the work in the district
court and on appeal.”
Slip op. at 2216, 1st full paragraph: delete: “The parties
will bear their own costs of appeal.”
With these amendments the petition for rehearing is denied.
Judges Schroeder and O’Scannlain have voted to reject the
suggestion for rehearing en banc, and Judge Goodwin so rec-
ommends.
The full court has been advised of the sup »estion for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35(b).
The petition for rehearing is DENIED and the suggestion
for rehearing en banc is REJECTED. |
Plaintiff's request for an extension of time within which to
file a motion for attorneys’ fees is now moot. This order has
resolved the issue of attorneys’ fees.
The mandate in this case is stayed for 90 days to permit the
preparation and filing of a petition to the Supreme Court.
APPENDIX 0.3
6582 SANCHEZ v. Crry OF SANTA ANA
OPINION
GOODWIN, Chief Judge:
Jesse J. Sanchez, Victor Torres, and Robert Caro, former
police officers of the Santa Ana Police Department (SAPD),
appeal district court judgments in their action against the City
of Santa Ana, and various Police Captains, Lieutenants and
Sergeants for alleged deprivation of rights secured by the first
and fourteenth amendments, in violation of 42 U.S.C.
§§ 1981, 1983, 1985, 1986 and alleged employment discrimi-
nation by the City of Santa Ana in violation of 42 U.S.C.
§§ 1981, 1983, 2000e-2(a). The City of Santa Ana also
appeals. That appeal is addressed in Sanchez v. City of Santa
Ana, 915 F.2d 424 (9th Cir. 1990) (Nos. 86-6386, 88-5827,
88-5855).
Between 1975 and 1978, the number of Hispanic police
officers at the SAPD greatly increased as a result of a Bilin-
gual Lateral Transfer Program designed to encourage
Spanish-speaking officers from other California police depart-
ments to transfer to the SAPD. See generally League of
United Latin Am. Citizens (LULAC) v. City of Santa Ana, 410
F. Supp. 873 (C.D. Cal. 1976) (finding SAPD hiring practices
unconstitutional and instituting a hiring order to remedy past
practices of discriminatory hiring).
In November 1977, 100 of 225 SAPD officers took a writ-
ten examination to become Sergeant. Following the examina-
APPENDIX 0.4
SANCHEZ v. Crry OF SANTA ANA 6583
tion, the City Personnel Department proposed that the passing
score be adjusted to enable more Hispanic officers to pass the
written examination and become eligible to compete in the
oral examination for the position of Sergeant. The chief of
police did not support the proposal. It was not implemented.
In December 1978, Sanchez, who was hired pursuant to the
Bilingual Lateral Transfer Program, observed on the roll call
board a cartoon he considered to be racially offensive. San-
chez took a copy of the cartoon to the City Personnel Depart-
ment. The police chief punished those involved in
disseminating the cartoon. Sanchez also received an official
reprimand for violating the chain of command by bringing the
cartoon to the attention of the City Personnel Department,
rather than the proper SAPD officials.
On January 9, 1978, Sanchez, Caro and Torres, together
with other members of the SAPD, chartered an Orange
County chapter of the Latino Peace Officers Association
(LPOA), with Caro as president and Torres as vice-president.
At a January 13, 1978 meeting between Chief Davis and
minority officers, Caro, on behalf of the LPOA, presented
Chief Davis with a packet of materials detailing racial prob-
lems within the SAPD (the “LPOA Packet’). Pursuant to
Chief of Police Davis’s instructions, Lieutenant Salazar and
Lieutenant Lewellen were assigned to investigate the allega-
tions as well as the cartoon incident. The lieutenants prepared
a report for Chief Davis. The report found no racial problems,
noted some isolated incidents of offensive language, and char-
acterized some minority officers as “super-sensitive.”
According to the plaintiffs, LPOA members during the next
few months, became targets of selective enforcement of
SAPD rules and of peer ostracism. They also claim that vari-
ous defendants made racially offensive slurs. The complaints
alleged that LPOA members resigned from the organization
because of their fears of ostracism and discrimination by
defendants. Plaintiffs also alleged that unsafe vehicles were
APPENDIX O.5
6584 SANCHEZ v. CrTy OF SANTA ANA
assigned to LPOA members and that they did not receive ade-
quate police back-ups during certain operations. Sanchez and
Torres claim that secret and illegal personnel files were kept
on them by various defendant-supervisors.
On January 13, 1978, Caro complained to Lieutenant Wil-
liams, his supervisor, that Bannon, an Anglo officer, used
unnecessary force during an arrest. The allegations prompted
an investigation by Bannon’s supervisor, Lieutenant Dixon,
but no charges resulted. Caro complained to Lieutenants Wil-
liams and Jordan, Sergeants Dittus, and Garza (the Affirma-
tive Action Officer), that Dixon was biased.
Following the investigation, Chief Davis terminated Caro’s
employment on the ground that his allegation against Bannon
was unfounded and made with evil intent. The termination
statement also said that Caro was untruthful during the subse-
quent investigation. Despite Caro’s contention that the inves-
tigation was biased and hostile to him, due to his involvement
with the LPOA, the termination was upheld by the Santa Ana
Personnel Board, the California Superior Court, and the Cali-
fornia Court of Appeals.
Following Caro’s discharge, Torres made a public state-
ment regarding continued discrimination at the SAPD.
Although he was not formally reprimanded, Torres was
reminded of his duty to present discrimination claims within
the SAPD before airing his grievances to the public.
In January of 1978, Torres applied for the position of
Assistant Team Leader (ATL) for the patrol division, and,
based on his 1977 test scores, he was next in line for the posi-
tion. The list expired, however, and in March of 1978, Torres
submitted his application to an ATL oral board (Lieutenants
Lewellen and Sterzer and Sergeant Bruns). Torres testified
that he was questioned about and orally reprimanded for his
involvement with the LPOA and the LPOA Packet. Torres
never became an ATL.
APPENDIX 0.6
SANCHEZ v. Crry OF SANTA ANA 6585
In September of 1978, Torres requested a leave of absence
to attend to his ill parents. His request was denied. Torres then
appealed and was granted a one-week leave. At the end of the
week he voluntarily resigned from the SAPD. In an April,
1979 letter to Personnel Director Botts, Torres stated that he
resigned to assist his parents. Torres now claims, however,
that he was constructively discharged as a result of racial dis-
crimination.
In March of 1979, Sanchez also resigned from the SAPD.
He claims that he was constructively discharged following the
removal of his merit pay. See Sanchez, slip op. at _.
On May 18, 1979, Sanchez, Torres and Caro filed a com-
plaint seeking damages and injunctive relief for violations of
their civil rights.’ Plaintiffs moved for full discovery of SAPD
personnel files and the defendants sought a protective order to
limit plaintiffs’ discovery. The court granted the protective
order in part, limiting plaintiffs’ discovery to (1) statistical
data, compiled by the SAPD, regarding the number of full-
time, permanent members of the SAPD who were discharged
or who resigned while under investigation, between February
1973 and July 1979 and (2) comparative data regarding the
compensation of members of the SAPD between May 1975
and July 1979, with no identification of individual members
beyond ethnic and sex classifications. The court’s grant of the
protective order was without prejudice to the plaintiffs’ mov-
ing for production of the protected material if the action were
certified as a class action. The plaintiffs thereafter moved for
class certification on behalf of all Hispanic officers, pursuant
‘On June 13, 1978, Sanchez filed a Charge of Discrimination with the
United States Equal Employment Opportunity Commission (EEOC). On
May 17, 1978, Torres filed a similar charge with the EEOC. On March 7,
1978, Caro also filed a charge with the EEOC. Plaintiffs received a right-
to-sue letter from the U.S. Department of Justice on April 11, 1979 and
timely instituted this civil action in federal district court on May 18, 1979.
See 42 U.S.C. § 2000e.
- APPENDIX 0.7
6586 SANCHEZ v. City oF SANTA ANA
to Fed. R. Civ. P. 23(b)(1), (b)(2), which the district court
denied on February 26, 1980.
Defendants moved to dismiss or in the alternative for sum-
mary judgment or partial summary judgment. Partial sum-
mary judgment was granted to defendants as to (1) all issues
conceming defendants’ hiring practices; (2) Sanchez’s com-
plaints based on his failure to get Crime Scene Investigator
pay; (3) Torres’s claim of discrimination for failure to pro-
mote him to Sergeant; and (4) all generalized claims of a dis-
parate impact from disciplinary proceedings being more
frequent towards Hispanics than others. Defendants were also
granted partial summary judgment as to all of Caro’s pre-
termination claims. Caro’s pre-termination claims were pre-
cluded by his state proceedings, but Caro’s post-termination
claims were preserved.
Sanchez was granted summary judgment against the City of
Santa Ana on his claim of denial of due process in removal
of his merit pay, but was denied summary judgment on his
first amendment discriminatory retaliation claim. Following
thirty-nine days of trial, a verdict was directed in favor of the
defendants on all remaining claims. The court, as noted in the
companion appeal, referred Sanchez’s claims for damages to
the jury.
The City moved for judgment notwithstanding the verdict
or for a new trial and both motions were denied. The defen-
dants’ motions for attorney’s fees were granted and defen-
dants were awarded $471,558.71. Sanchez’s motion for
determination of prevailing party status was granted on his
due process claim but denied on his other claims; he was
denied attomey’s fees and costs.
JURISDICTION
All but five of the defendants’ contend that this court lacks
*Defendants Collins, Dittus, Faust, Lanner and McDaniel.
APPENDIX 0.8
SANCHEz v. Crry OF SANTA ANA 6587
jurisdiction over this appeal because the district court improp-
erly vacated Fed. R. Civ. P. 54(b) certification of the final
directed verdict judgments, and the plaintiffs did not timely
appeal from the certified judgment. We reject this contention.
In directing a verdict on most of the plaintiffs’ claims, the
district court ordered the defendants to prepare a judgment in
conformance with the directed verdict. There is no indication
in this order that the court directed the judgment to be certi-
fied under Fed. R. Civ. P. 54(b).‘
On December 4, 1985, the defendants filed a proposed
judgment reciting that there was no just reason for delay, and
directing that judgment be entered forthwith pursuant to Rule
54(b). The district court entered the judgment and served it on
all the parties. It is undisputed that the plaintiffs failed to file
a notice of appeal within thirty days of this judgment, as
required by Fed. R. App. P. 4.
At a hearing on February 24, 1986, the plaintiffs argued
that the December 5, 1985 judgment was not appealable
because the district court had not intended to certify the judg-
ment under Rule 54(b). The plaintiffs reminded the court that
on December 9, 1985, four days after entry of judgment, the
court had indicated that it intended there be only a single,
final judgment from the case. At a March 10, 1986 hearing on
7A motions panel of this court has previously ruled that this court has
jurisdiction over the plaintiffs’ appeal. While this court gives deference to
motions panel decisions made in the course of the same appeal, we have
an independent duty to decide whether we have jurisdiction. See Schlegel
v. Bebout, 841 F.2d 937, 941 (9th Cir. 1988).
“Rule 54(b) provides in part: “When more than one claim for relief is
presented in an action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but fewer than all
of the claims or parties only upon an express determination that there is
no just reason for delay and upon an express direction for the entry of
judgment.”
APPENDIX 0.9
6588 SANCHEZ v. City OF SANTA ANA
the plaintiffs’ motion to correct the judgment, the court stated
that it never intended to certify the judgment under Rule 54(b)
and vacated the 54(b) certification.
Fed. R. Civ. P. 60(a) provides that clerical mistakes in
judgments arising from oversight or omission may be cor-
rected by the court at any time on its own initiative or on the
motion of any party and after such notice, if any, as the court
orders. “The error can be corrected whether it is made by a
clerk or by the judge.” Blanton v. Anzalone, 813 F.2d 1574,
1577 (9th Cir. 1987).
In deciding whether the district court may alter a judgment
pursuant to Rule 60(a), our focus is on what the court origi-
nally intended to do. Jd. Rule 60(a) is limited, however, to
correcting errors “arising from omission” and may not be
used to correct more substantial errors, such as errors of law.
Waggoner v. R. McGray, Inc., 743 F.2d 643, 644 (9th Cir.
1984) (per curiam).
The situation here falls under Rule 60(a). The district judge
stated on the record that he never intended to grant 54(b) cer-
tification. We find no reason to doubt the district judge’s
statements, particularly in light of his failure to direct the
defendants to include 54(b) certification in the final judgment
he asked them to prepare. See Blanton, 813 F.2d at 1577.
Accordingly, the error arose from oversight or omission and
was within the district court’s power to correct under 60(a).
See Waggoner, 743 F.2d at 644.°
‘The defendants contend that the district court did not have the authority
to correct the judgment under Rule 60(a) because the rule may not be used
to correct substantial errors. By “substantial” errors, the court means non-
clerical errors; it is not referring to the magnitude of the error. Waggoner,
743 F.2d at 644-45. Because the district court’s error was clerical, it was
within the district court's power to correct the judgment under 60(a).
APPENDIX 0.10
SANCHEz v. CrTy OF SANTA ANA 6589
PROTECTIVE ORDER
{1} Plaintiffs claim that the district judge improperly issued
a protective order denying them discovery of SAPD personnel
files and allowing limited discovery of SAPD compiled statis-
tical data. Defendants correctly argue that the protective order
was proper because of the confidential nature of the requested
files. |
[2] Federal Rule of Civil Procedure 26(c) provides that a
court may limit discovery to protect from annoyance, embar-
rassment, oppression, or undue burden or expense. Federal
common law recognizes a qualified privilege for official
information. Kerr v. United States Dist. Ct. for N.D. Cal., 511
F.2d 192, 198 (9th Cir. 1975), affd, 426 U.S. 394 (1976).
Government personnel files are considered official informa-
tion. See, e.g., Zaustinsky v. University of Cal., 96 F.R.D. 622,
625 (N.D. Cal. 1983), affd, 782 F.2d 1055 (9th Cir. 1985).
To determine whether the information sought is privileged,
courts must weigh the potential benefits of disclosure against
the potential disadvantages. If the latter is greater, the privi-
lege bars discovery. Jepsen v. Florida Bd. of Regents, 610
F.2d 1379, 1384-85 (Sth Cir. 1980); Zaustinsky, 96 F.R.D. at
625.
The relevance of plaintiffs’ discovery request for employ-
ment data is undisputed. Most of the relevant information,
however, could have been developed by interrogatories. It is
well-settled that an employee may prove his or her claim of
unlawful discrimination by evidence that other employees of
different races or national origin were treated differently in
similar circumstances. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 804-805 (1973); Diaz v. American Telephone
& Telegraph, 752 F.2d 1356, 1362-63 (9th Cir. 1985). Statis-
tical evidence alone may make out a prima facie case of
unlawful discrimination. Wards Cove Packing Co., Inc. v.
Antonio, _ U.S. _, 109 S. Ct. 2115, 2121 (1989).
APPENDIX 0.11
6590 SANCHEZ v. Crry oF SANTA ANA
Plaintiffs seek more than statistical data of officer employ-
ment termination, discipline and compensation. They
demanded access to the SAPD’s personnel files to compile
their own statistics. While these files are not absolutely privi-
leged, the confidential nature of the employee personne! files
Suggests that opening the files to the plaintiffs for a general
search could reach well beyond the legitimate inquiries neces-
sary to this litigation and would impact disciplinary proce-
dures within the SAPD. The SAPD claims that the files
contain additional confidential information that is irrelevant to
plaintiffs’ suit.
[3] The district court did not abuse its discretion in denying
access to these files. See Ah Moo v. A.G. Becker Paribas, Inc.,
857 F.2d 615, 619 (9th Cir. 1988). While plaintiffs demon-
strate the relevance of statistics to their suit, they fail to show
that discovery of the actual files was necessary. Focused dis-
covery could have been employed. Plaintiffs accuse the
defendants of inaccurate statistical conclusions, but they were
free to utilize the statistics to draw their own conclusions. In
addition, the plaintiffs had access to the same EEOC data
from which the SAPD’s expert compiled the statistics in ques-
tion, and, when investigating a charge, the EEOC has “a
broad right of access to relevant evidence.” University of Pa.,
Petitioner v. Equal Employment Opportunity Commission, _
U.S. _, 110 S. Ct. 577, 583 (1990) (citing 42 U.S.C. § 2000e-
8(a)). The SAPD’s expert did not draw conclusions from the
files themselves but from the EEOC data. Plaintiffs have not
alleged that the EEOC data is biased or that they were denied
access to this data. They fail to show prejudice from the
denial of their full discovery request.
SUMMARY JUDGMENT ON PAY AND PROMOTION
CLAIMS
[4] Plaintiffs claim that the SAPD’s promotion policies,
which require officers to be employed by the SAPD for a cer-
tain period of time before they can be eligible for promotions,
APPENDIX 0.12
SaNncuHez v. Crry oF SANTA ANA 6591
have a discriminatory impact on Hispanic officers hired later-
ally from other police departments.° Plaintiffs challenge the
district court’s finding that these pay and promotion claims
were governed by LULAC, 410 F. Supp. 873 (C.D. Cal.
1976). We agree that the district court misapplied LULAC.
[5] In LULAC the district court held that the City of Santa
Ana engaged in discriminatory hiring practices that resulted
in disproportionally few Mexican-American police or fire-
men. 410 F. Supp. at 911-12. The suit was brought in 1974
by a rejected Hispanic police applicant and by the League of
United Latin American Citizens on behalf of its members.
Finding unlawful discrimination, the district court also man-
dated that a preferential hiring order be instituted in future
proceedings. Jd. at 911. The district court in the instant case
held that LULAC governed “all aspects of /ateral transfers
including credits, salary and classification.” (emphasis
added). LULAC, however, makes no mention of the City’s
policies on lateral hiring or potential discrimination that may
result from those policies. LULAC only addresses hiring poli-
cies for new applicants to the police force. Moreover, the
bilingual lateral transfer program began in 1974-75 following
the initiation of the LULAC suit. Because the district court
erroneously applied LULAC we reverse the district court's
grant of summary judgment on this issue and remand for con-
sideration of the plaintiffs’ claim.
SUMMARY JUDGMENT ON OTHER DISPARATE
IMPACT CLAIMS
Plaintiffs alleged that the defendants enforced City and
department regulations in a racially and ethnically discrimina-
tory fashion. On the basis of the defendants’ statistical data,
which did not reveal any discrimination, the district court
*Officers hired laterally from other police departments enter as “step C”
employees as compared to rookie police officers who enter at “step A.”
Advancement to steps D and E is based on merit.
APPENDIX 0.13
‘ee
6592 SANCHEZ v. City oF SANTA ANA
granted summary judgment to defendants on all generalized
claims of disparate impact from disciplinary proceedings.
On appeal, plaintiffs challenge this summary judgment
because they were denied equal access to personnel files
which they claim would have allowed them to compile con-
tradictory statistics and challenge defendants’ evidence. As
discussed previously, this claim has no merit.
DENIAL OF CLASS CERTIFICATION
[6] Sanchez, Torres, and Caro brought this action as indi-
viduals and as a class on behalf of all Spanish-surnamed indi-
viduals employed by the City as police officers, past, present
and future, pursuant to Fed. R. Civ. P. 23(a), (b)/1), (b)(2).
The district court denied class certification primarily upon a
finding that the three no-longer-employed plaintiffs failed to
meet the commonality and typicality requirements of Fed R.
Civ. P. 23(a)(2) & (3). This ruling is correct.
On appeal plaintiffs argue that the denial of equal access to
the personnel files prevented them from specifically alleging
commonality or typicality. As previously noted, this claim has
no merit and the district court did not abuse its discretion in
refusing to certify this class. Caldeira v. County of Kauai, 866
F.2d 1175 (9th Cir.), cert. denied, _ U.S. _, 110 S. Ct. 69
(1989); Probe v. State Teachers’ Retirement Sys., 780 F.2d
776, 779 (9th Cir.), cert. denied, 476 U.S. 1170 (1986).
CARO’S PRE-TERMINATION CLAIMS
[7] Caro claims that the district court erred in granting sum-
mary judgment to defendants on his pre-termination claims
based on a finding that the claims were barred by res judicata.
We affirm the district court.
Following Caro’s termination from the SAPD, he appealed
the dismissal to the Personnel Board of the City of Santa Ana
APPENDIX 0.14
SaNcHEz v. City oF SANTA ANA 6593
seeking a reversal and reinstatement. The Personnel Board
denied his requests, and Caro instituted an action in the Cali-
fornia Superior Court seeking the same relief. He lost in the
Superior Court and appealed to the Court of Appeals where
he also lost. The Court of Appeals specifically found that
Caro was afforded a full and fair hearing at the Personnel
Board and that there was no bias or prejudice, racial or other-
wise, involved in, or causing his discharge. The court also
held that there were no due process violations. In response to
the res judicata defense in the district court, Caro argued that
the defendants conspired to obstruct justice and deter wit-
nesses who might have testified on his behalf in violation of
42 U.S.C. § 1985(2).
It is well-established that where a federal constitutional
claim is based on the same asserted wrong as a State action
and the parties are the same, res judicata will bar the federal
constitutional claim, whether or not it was asserted specifi-
cally in state court. 28 U.S.C. § 1738 (1982); Trujillo v.
County of Santa Clara, 775 F.2d 1359, 1363 (9th Cir. 1985);
Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir. 1975), cert.
denied, 423 U.S. 1066 (1976).
[8] In California, to whose law we must look for the appli-
cable res judicata and collateral estoppel principles, Punton v.
City of Seattle, 805 F.2d 1378, 1380 (9th Cir. 1988), cert.
denied, 481 U.S. 1029 (1989), res judicata precludes a plain-
uff from litigating a claim if the claim “relates to the same
‘primary right’ as a claim in a prior action, the prior judgment
was final and on the merits, and the plaintiff was a party or
in privity with the party in the prior action.” Trujillo, 775 F.2d
at 1366, (citing Slater v. Blackwood, 15 Cal.3d 791, 795, 543
P.2d 593, 594, 126 Cal. Rptr. 225, 226 (Cal. 1975)). Caro’s
claim was based upon the same due process rights, the state
court judgment was final, and he was a party to the action.
Moreover, he could have raised the specific allegation of con-
spiracy to obstruct justice in his state court proceedings.
APPENDIX O.15
6594 | SANCHEZ v. Crry oF SANTA ANA
Caro argues that he was not afforded a full and fair oppor-
tunity to litigate the claim in the state court and, accordingly,
he should not be barred from litigating his pre-termination
claims in federal court. We reject this contention.
Collateral estoppel does not apply when the party against
whom it is asserted did not have a “full and fair opportunity~
to present the case. Kremer v. Chemical Constr., 456 U.S.
461, 480-81 (1982); Allen v. McCurry, 449 U.S. 90, 95
(1980). The Supreme Court has stated, however, that “state
proceedings need do no more than satisfy the minimum pro-
cedural requirements of the Fourteenth Amendment's Due
Process Clause in order to qualify for the fuil faith and credit
guaranteed by federal law.” Kremer, 456 U.S. at 481. Caro
claims that Community Service Officer Christine Schuller
was intimidated by various defendants and as a result would
not testify on his behalf. He failed, however, to produce proof
of that assertion. Moreover, Caro does not claim, and we do
not find, that the California courts violated minimum stan-
dards of due process.
Caro also contends that issue and claim preclusion should
not apply to claims brought under 42 U.S.C. § 1985(2). While
the Supreme Court has not stated specifically that claim and
issue preclusion principles apply to section 1985(2) conspir-
acy claims, it has held these principles applicable to Title VII
and section 1983 suits. See Migra v. Warren City School Dist.
Bd of Ed., 465 U.S. 75 (1984) (state preclusion law applies to
section 1983 claims); Kremer, 456 U.S. at 461 (claim and
issue preclusion apply to Title VII actions). Moreover, in
Rutledge v. Ariz. Bd. of Regents, 660 F.2d 1345 (9th Cir.
1981), affd, Kush v. Rutledge, 460 U.S. 719 (1983) we
afforded full faith and credit to state judicial proceedings
involving an athlete’s claim that he was assaulted by his
coach and that the team engaged in a cover-up of the incident
in violation of section 1985(2). Likewise, we conclude that
Caro’s claim that justice was obstructed during the Personne!
Board and state court proceedings is barred.
APPENDIX 0.16
Ee
SaANcCHEz v. City OF SANTA ANA 6595
DIRECTED VERDICTS
Following the completion of the plaintiffs’ oral presenta-
tion of evidence, defendants were granted directed verdicts on
all remaining claims. Plaintiffs appeal the verdicts on the fol-
lowing claims: (1) The existence of a racially discriminatory
atmosphere; (2) The unlawful retaliation against the plaintiffs
for engaging in protected speech; (3) The discrimination and
retaliation based on race and national origin; and (4) The con-
spiracies against plaintiffs due to their exercise of first amend-
ment rights, their race and national origin, and defendants’
obstruction of justice.
A. Discriminatory Environment
[9] Plaintiffs allege the existence of a racially discrimina-
tory atmosphere at the SAPD in violation of 42 U.S.C. § 1981
and Title VII, 42 U.S.C. § 2000e. They claim that enough evi-
dence was presented that a reasonable jury could have found
the existence of a hostile work environment.... . This is a
mischaracterization of the record. We affirm judgment to the
defendants.
Plaintiffs do not distinguish between their causes of action
under section 1981 and Title VII. They contend that parallel
claims under section 1981 and Title VII should be assessed by
like standards. The Supreme Court has stated, however, that
while there is a “necessary overlap” between these two stat-
utes, section 1981 does not apply to post-contract formation
conduct unrelated to an employee’s right to enforce his or her
contract. Patterson v. McLean Credit Union, _ U.S. _, 109 S.
Ct. 2363, 2374-75 (1989). Title VII, on the other hand,
applies to racial harassment in the course of employment. See
id. at 2374; Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 65-66 (1986) (Court discusses Title VII’s application to
sexual harassment). Because plaintiffs’ hostile atmosphere
claim does not involye specific allegations of a refusal to
make a contract or the impairment of their ability to enforce
APPENDIX 0.17
6596 SANCHEZ v. Crry OF SANTA ANA
contract rights, it should be analyzed under Title VII.
Patterson, 109 S. Ct. at 2374.’
In the district court’s pretrial order, it was agreed that Title
VII claims would not be tried by a jury. We have held that a
jury trial need not be provided in Title VII cases. See Slack
v. Havens, 522 F.2d 1091, 1094 (9th Cir. 1975); cf. Miller v.
Fairchild Indus., Inc., 885 F.2d 498, 507 (9th Cir. 1989)
(where plaintiff brings an equitable discrimination claim
under Title VII and a legal claim under section 1981 based on
the same facts, the trial judge must follow the jury’s factual
findings), cert. denied, __ U.S. __, 110 S. Ct. 1524 (1990).
Accordingly, even if plaintiffs’ discriminatory atmosphere
claim is meritorious, we may not remand it for a jury determi-
nation.
In moving for a directed verdict, the defendants did not dis-
tinguish between plaintiffs’ Title VII and 1981 claims. Like-
wise, in directing a verdict the district court did not make this
distinction. The court found simply that “no reasonable per-
son could find for the plaintiffs.” In our review, however, we
must make this distinction. We are not deciding whether the
district court improperly took the issue away from the jury,
but whether the district court erred in deciding the issue with-
out hearing from the defense.
Federal Rule of Civil Procedure 41(b) allows the district
judge presiding over a bench trial to decide the case following
the close of the plaintiffs’ case. In Johnson v. United States
Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985), we held
that a district court’s factual findings made pursuant to Rule
41(b) should be reviewed under the clearly erroneous stan-
"Title VU of the Civil Rights Act of 1964 makes it “an unlawful
employment practice for an employer . . . to discriminate against any indi-
vidual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or
national origin” 42 U.S.C. § 2000e-2(a)(1) (1988).
APPENDIX 0.18
SANCHEZ v. City oF SANTA ANA 6597
dard. We also held that ultimate findings under Rule 41(b) are
mixed questions of law and fact and are reviewed de novo. Id.
at 1465. While the defendants did not make a Rule 41(b)
motion, their motion for a directed verdict at the close of
plaintiffs’ case on an issue that will ultimately be decided by
the judge has the same effect. Accordingly, we adopt the same
standard of review.
We cannot say that the district court’s ultimate conclusion,
that the plaintiffs failed to prove the existence of a discrimina-
tory atmosphere, is incorrect as a matter of law. The “directed
verdict” is affirmed.
B. First Amendment Claims
[10] Sanchez and Torres allege that they were unlawfully
retaliated against for exercising their first amendment rights
in violation of 42 U.S.C. § 1983. Our review of the record
indicates that reasonable jurors could find retaliation on one
or more of these claims. These claim are remanded for jury
consideration of the potential liability of Chief Davis, Cap-
tains Hansen and Stebbens, and Lieutenant Williams to
Sanchez,* and the potential liability of Lieutenants Lewellen,
Sterzer and Pitzer and Sergeant Bruns to Torres. The directed
verdicts in favor of the City and the remaining defendants are
affirmed. The specific instances testified to do not impose lia-
bility upon the City for the alleged retaliation by individual
officers. Public entities are liable under section 1983 only
when the constitutional violation occurs as a result of a policy
or custom. Monell v. New York City Dep’t of Social Services,
436 U.S. 658, 690-91 (1978); City of St. Louis v. Praprotnik,
485 U.S. 112, 122-23 (1988). Plaintiffs failed to prove the
existence of such a policy or custom.
"In this appeal, we do not consider Sanchez’s claims of retaliation for
first amendment protected activity where the alleged retaliation is poor
reviews and the removal of his merit pay. These claims are the same as
those for which he received a jury verdict. See Sanchez v. City of Sania
Ana, 915 F.2d 424, 426-28, 430-31 (9th Cir. 1990.)
APPENDIX 0.19
6598 SANCHEZ v. City or SANTA ANA
“To make out a cause of action under section 1983, plain-
tiffs must plead that (1) the defendants acting under color of
state law (2) deprived plaintiffs of rights secured by the Con-
stitution or federal statutes.” Soranno’s Gasco, Inc. v. Mor-
gan, 874 F.2d 1310, 1313-14 (9th Cir. 1989) (quoting Gibson
v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert.
denied, 479 U.S. 1054 (1987)). A violation of section 1983
occurs where an employee is wrongfully retaliated against for
speech protected by the first amendment. See Connick v.
Myers, 461 U.S. 138 (1983); Mt. Healthy City Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977); Pickering v. Board of Educ. of
Township High School Dist. 205, Will County Ill., 391 U.S.
563 (1968); Allen v. Scriber, 812 F.2d 426 (9th Cir.),
amended, 828 F.2d 1445 (1987).
To make a successful claim for wrongful retaliation under
the first amendment and section 1983, the plaintiff must prove
that: (1) the statement that brought on the retaliation is one of
“public concern,” (2) the constitutionally protected expression
is a “substantial” or “motivational” factor in the employer’s
adverse decision or conduct; and (3) the interests of the
plaintiff/employee in commenting on the matter of public
concern outweigh the state’s interest in maintaining efficient
public services. See Allen, 812 F.2d at 430-32. The defendants
concede or do not contest that the incidents alleged by San-
chez and Torres are protected under the first amendment.
Sanchez and Torres testified to numerous instances that a
reasonable jury could have found to be unconstitutional retali-
ation. Plaintiffs testified that the above identified defendants
reacted adversely to the formation of the LPOA, the LPOA
meeting with city personnel, the submission of the LPOA
packet, the filing of EEOC complaints, the instigation of legal
activity, Torres’s press conference, and Sanchez’s and Tor-
res’s public support of Caro following his discharge. More-
over, both Sanchez and Torres testified to being ostracized
and victims of a “silent treatment” and of selective enforce-
ment of the rules, and Torres claimed that he was penalized
APPENDIX 0.20
= EIAs
SANCHEz v. Crry OF SANTA ANA 6599
in his interview for the ATL position and received poor
reviews. These claims of first amendment retaliation are
therefore remanded for suomission to the jury. Sanchez and
Torres are entitled to a jury determination of whether the first
amendment has been violated, and by whom, and what dam-
ages, if any, would be required to repair any injuries caused
by the alleged retaliation.
The evidence, however, does not support a claim that the
SAPD’s policy of bringing grievances to authorities in the
SAPD before bringing them to the City or the public, was
unreasonable as to Sanchez. The Supreme Court has held that
a public employer can impose reasonable limitations on the
manner that employer grievances are handled. Connick, 461
U.S. 138. “The problem ... is to arrive at a balance between
the interests of the [employee] as a citizen, in commenting
upon matters of public concern and the interest of the State,
as an employer, in promoting efficiency of the public service
it performs through its employees.” Pickering, 391 U.S. at
568.
In applying this test, we have held that a police department
has a great interest in protecting itself from false and unfavor-
able publicity generated by its employees. Allen, 812 F.2d at
432; Boyd v. Gain, 558 F.2d 553, 554 (9th Cir. 1977) (court
refuses to expunge reprimands from personnel files of officers
who issued public statements about the police department’s
stop and frisk tactics), cert. denied, 434 U.S. 1087 (1978).
The SAPD’s policy of bringing grievances first through
appropriate channels to authorities in the department before
bringing them to the City or the public is reasonable and not
arbitrary. There was no constitutional violation in requiring
officers to communicate “through channels” before enlisting
public opinion to their cause.
APPENDIX 0.21
6600 SANCHEZ v. Crty oF SANTA ANA
C. Discrimination/Retaliation
All three plaintiffs claim that substantial evidence was pre-
sented to sustain their allegations that the defendants violated
sections 1981, 1983, and Title VII by retaliating against them
because of their race. Their claims are founded on the four-
teenth amendment’s equal protection and due process clauses.
This directed verdict is affirmed. Caro’s claims are barred.
Sanchez received favorable verdicts from the jury on his sepa-
rate fourteenth amendment due process claim.* There is no
evidence to support Torres’s claims; his grievances are best
addressed under the first amendment analysis discussed previ-
ous'y.
D. Conspiracies
Plaintiffs claim that substantial evidence supports the infer-
ence of a single conspiracy managed and implemented by
Chief Davis and Captain Hansen and involving all other
defendants. They allege the same incidents of first amend-
ment protected activities to support their conspiracy claim
under section 1983. While we agree that enough evidence
exists to reverse many of the directed verdicts, we do not find
evidence to support a conspiracy claim under 42 U.S.C.
§ 1983.
Plaintiffs also claim that the defendants conspired to
obstruct justice by deterring witnesses from testifying on
behalf of Caro and by presenting false evidence at Caro’s ter-
mination hearing depriving them of equal protection under the
law in violation of 42 U.S.C. §§ 1985(2), 1986. This claim is
meritless.
Section 1985 proscribes conspiracies to interfere with civil
*Our decision to vacate the award of $500,000 for emotional distress
injury because it is barred by principles of res judicata, see Sanchez, 915
F.2d at 431-32, does not affect our decision here.
APPENDIX 0.22
SANCHEZ v. City OF SANTA ANA 6601
rights. A claim brought under the first and second clauses of
section 1985(2) requires a direct or indirect purpose to
deprive any persons of the equal protection of the laws, or the
equal privileges or immunities under the laws and a class
race-based animus. See Kush, 460 U.S. 719; Griffin v. Breck-
enridge, 403 U.S. 88 (1971); Bretz v. Kelman, 773 F.2d 1026,
1028 (9th Cir. 1985) (en banc). To be actionable, the conspir-
acy must result in overt acts, done in furtherance of the con-
spiracy, that are both the cause in fact and proximate cause of
plaintiffs’ injuries. See Arnold v. IBM, 637 F.2d 1350, 1355
(9th Cir. 1981). A mere allegation of conspiracy without fac-
tual specificity is insufficient to support a claim. Karim-
Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th
Cir. 1988).
Plaintiffs allege the required class — Hispanic police offi-
cers — but their evidence of a conspiracy to obstruct justice
aimed at the class is lacking. The basis of their claim is that
State court proceedings were obstructed when defendants
allegedly intimidated Officer Schuller from testifying on
Caro’s behalf. As noted above, this claim is barred by res
judicata. Moreover, defendants have presented uncontroverted
evidence that Schuller refused to testify of her own free will.
Plaintiffs also claim that Officer Fernandez was influenced
to suppress evidence that Sergeant Dixon, who originally
investigated Caro’s complaint against Officer Bannon, was
hostile to Caro. Plaintiffs presented evidence that Fernandez
lied to the Personnel Board about his knowledge of Sergeants
Dixon’s potential bias. Even viewing this evidence in Caro’s
favor, however, one incident does not amount to substantial
evidence of a conspiracy to obstruct justice directed at the
class of Hispanic police officers.”
“Plaintiffs also allege that Chief Davis lied about the handling of the
Caro matter when he testified in the state proceedings and that Lieutenant
Williams inflated his state court testimony of Caro’s excessive force
charge. Neither of these incidents, however, evidence a conspiracy
between two or more SAPD members.
APPENDIX 0.23
|
6602 SANCHEZ v. Crry oF SANTA ANA
Likewise, plaintiffs’ claim against the individual defen-
dants under section 1986 is meritless. “Section 1986 imposes
liability on every person who knows of an impending viola-
tion of section 1985 but neglects or refuses to prevent the
violation.” Karim-Panahi, 839 F.2d at 626. A violation of
section 1986 thus depends on the existence of a valid claim
under 1985. Id.; Trerice v. Pedersen, 769 F.2d 1398, 1403
(9th Cir. 1985); Mollnow v. Carlton, 716 F.2d 627, 632 (9th
Cir. 1983), cert. denied, 465 U.S. 1100 (1984).
INDIVIDUAL LIABILITY ON REMAND
[11] The individual defendants contend that they are
immune from liability. We address their claim to guide the
district court upon remand, and hold that the district court -
erred in ruling that the defendants were entitled to immunity
because the law in this area was insufficiently clear. On
remand, however, the court should also consider whether any
of the defendants were performing discretionary functions and
enjoyed qualified immunity for their actions on that basis.
Government officials performing discretionary functions
enjoy qualified immunity from liability for civil damages as
long as their conduct does not violate “clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Good faith qualified immunity attaches if the offi-
cial’s conduct is objectively reasonable “as measured by ref-
erence to clearly established law.” Id. See also Anderson v.
Creighton, 483 U.S. 635, 639-40 (1987) (the contours of the
right must be sufficiently clear to a reasonable official so that
the actor would have understood that what he was doing vio-
lated that right).
[12] The causes of action upon which we reverse the
directed verdict involve particular rights that were clearly
established at the time of the alleged incidents. See Connick
v. Myers, 461 U.S. 138 (1983)(“for at least 15 years, it has
APPENDIX 0.24
bitin diiai
SANCHEz v. City OF SANTA ANA 6603
been settled that a State cannot condition public employment
on a basis that infringes the employee’s constitutionally pro-
tected interests in freedom of expression.”); Gutierrez v.
Municipal Ct. of Southeast Judicial Dist., Los Angeles
| County, 838 F.2d 1031, 1050-51 (9th Cir. 1988) (governmen-
tal officials are not entitled to qualified immunity from a sec-
tion 1981 or section 1983 action based on intentional
discrimination), vacated on mootness grounds, _ U.S. _, 109
S. Ct. 1736 (1989); Flores v. Pierce, 617 F.2d 1386, 1392
(9th Cir.) (“[nJo official can in good faith impose discrimina-
tory burdens on a person or group by reason of a racial or eth-
nic animus against them. The constitutional right to be free
_.- from such invidious discrimination is so well established and
SO essential to the preservation of our constitutional order that
all public officials must be charged with knowledge of it.”),
cert. denied, 449 U.S. 875 (1980); Rogers, 454 F.2d at 238
(racially discriminatory atmosphere claim is actionable under
Title VI).
ATTORNEY’S FEES
Upon post-trial motion, the Sergeant-defendants and the
other nine individual defendants were awarded attorney’s fees
under 42 U.S.C. § 1988. Plaintiffs challenge these awards.
The district court found that the plaintiffs abused the legal
process and dragged innocent individuals through the court
system. Plaintiffs contend that, because many of the defen-
dants’ motions for summary judgment were denied, their
claiinas have merit and attorney’s fees were improperly
awarded against them. Both sides claim too much from the
record. Court time was wasted by both sides, some of it on
groundless claims by plaintiffs, some of it by litigation-happy
defense tactics. The meters in the law offices were running,
but fee shifting was not warranted in this case.
Under section 1988 a court may award attorney’s fees to a
prevailing defendant if the court finds that the plaintiff’s
APPENDIX 0.25
6604 SANCHEZ v. Crry oF SANTA ANA
action is “frivolous, unreasonable, or without foundation.”
Christiansburg Garment Co. v. Equal Employment Opportu-
nity Commission, 434 U.S. 412 (1978). See also Hughes v.
Rowe, 449 U.S. 5, 14-16 (1980) (applying Christiansburg to
42 U.S.C. § 1983 case). In Jensen v. Stangel we held that
denials of motions to dismiss and summary judgment may
suggest that a plaintiff's claims are not without merit. 762
F.2d 815, 818 (9th Cir. 1985). While defendants are correct
in noting that in Jensen we reversed the attorney’s fees award
primarily upon other grounds, Jensen nevertheless, provides
guidance.
As in Jensen, two trial judges presided over different parts
of these proceedings. By denying many of defendants’
motions for summary judgment, Judge Hill apparently
believed that parts of the plaintiffs’ case had enough merit to
proceed to the next stage of litigation. Judge Kenyon, after
hearing 39 days of trial, found that most of the claims were
not proven or were otherwise barred. Logic and fairness dic-
tate that where two judges disagree, attorney’s fees should not
be awarded en gross for bringing a frivolous case.
Massive fee awards against plaintiffs who continue to trial
are contrary to Congress’ goal of “promoting vigorous prose-
cution of civil rights violations under Title VII and § 1983.”
Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 619
(9th Cir. 1987). We therefore reverse the district court’s
award of attorney's fees. To the extent that the City had to
finance heavy defense costs, there is abundant evidence in this
record that the City could have avoided much of the problem
by employing a less confrontational approach to departmental
grievances after having recently been through, and losing, the
LULAC litigation.
We need not address whether the allocation of the burden
of the fee award was an abuse of discretion because we hold
that no award was warranted.
APPENDIX 0.26
SANCHEZ v. CiTy OF SANTA ANA 6605
The district court abused its discretion in denying attor-
ney’s fees to Sanchez. A plaintiff in a civil rights suit is a pre-
vailing party and is entitled to an award of attomney’s fees if
he “has succeeded on ‘any significant issue in litigation which
achieve[d] some of the benefit the parties sought in bringing
suit.’ Texas State Teachers Ass'n v. Garland Independent
School Dist., _ U.S. _, 109 S. Ct. 1486, 1493 (1989). We
remand to the district court to award reasonable attorney’s
fees, including fees on appeal, in connection with that part of
the verdict affirmed in the City’s companion appeal, Sanchez
v. City of Santa Ana, 915 F.2d 424 (9th Cir. 1990). The dis-
trict court shall determine the amount of fees that can be attri-
buted to the part of Sanchez’s appeal that was successful, and
shall award reasonable attorney’s fees and costs to the extent
of Sanchez’s success, both for the work in the district court
and on appeal.
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.
APPENDIX 0.27
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.