Demoted and Transferred Employee Deemed a "Policymaker" Undercutting Claim of Retaliation

Deputy Bardzik was demoted and transferred by Carona, the Sheriff.

Ordinarily, an elected official may not fire or retaliate against an employee for the employee’s political opinions and activities. An exception exists, however, for “policymaker” employees, given that elected officials must be able to have high-level, loyal employees to help implement the elected official’s policies. Thus high-level, policymaking employees are subject to dismissal if they are no longer loyal to the elected official.

Here, the record demonstrated that in his role as Reserve Division Commander Bardzik was a policymaker. This meant that there was no constitutional violation, and Carona was entitled to qualified immunity, for his purportedly retaliatory demotion of Bardzik.

Bardzik v. County of Orange (9 Cit. 2011)


No ADA Violation for Applicant Previously Rejected for Positive Drug Test

Plaintiff's previous application for employment was denied based on a positive pre-employment drug screen test.  Years later, plaintiff applied again.  The application was denied based upon the employer's one-strike rule.  Plaintiff claimed a violation of the ADA based upon his condition as a recovering addict.

Claim denied.  First the ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions that were made because of factors merely related to a person’s disability.

Here, the triggering event for purposes of the one-strike rule was the plaintiff's failed drug test, not his drug addiction. Had plaintiff’s first application been made after he was rehabilitated, he would not have been eliminated from consideration despite his status as a recovering addict. Thus, the one-strike rule did not facially discriminate against rehabilitated drug addicts; rather, it eliminated all candidates who tested positive.

Second, nothing in the history of the one-strike rule indicated that the employer had adopted the rule with a discriminatory purpose. Rather, it was lawful for the employer to eliminate applicants who were using drugs when they applied for longshore work and to permanently disqualify such applicants based on safety considerations. The ADA and the FEHA protect people who are recovering or who have recovered from a drug addiction; they do not protect people who are using illegal drugs when they apply for a job.

Lopez v. Pacific Maritime Association (9th Cir. 2011) __F.3d__, March 2, 2011.


Parents Had No Duty To Control Adult Son

The court of appeal upheld a motion for summary judgment in a case in which the adult son of the defendant parents, diagnosed with Aspergers, killed two people.  The court found no duty of care, concluding that any connection between the parents’ conduct and the shootings was speculative. Their conduct amounted to this: they had allowed William to live in their home, attended therapy sessions with him, monitored his medication compliance and reported to the doctors as requested. To impose a duty of care on them, the court ruled, could cause greater harm in future cases by encouraging parents to disassociate from their adult children with chronic serious problems.


Smith v. Fruend, 4th App. District; 2/2/11


Absent Contract, Firm Performing Work for City Cannot Recover

The Fourth Appellate District affirmed in part and reversed in part a judgment. The court held that an engineering firm that was retained by a city to redesign a municipal golf course under a contract that required written change orders could not recover for alleged extra work as a matter of law.

The City of Carlsbad contracted in writing with P&D Consultants, Inc., for services pertaining to a redesign of the City’s municipal golf course. The contract provided that no amendments, modifications, or waivers of contract terms would be allowed absent written agreement signed by both parties.

The contract also included an integration clause. In fact, the parties did make several written amendments that increased the contract price for extra work. All those amendments stated that all other provisions of the contract remained in full force and effect.

P&D sought still more compensation from the city, ostensibly for work not included in one of the amendments. The city refused to pay. P&D sued for breach of written and of implied contract, quantum meruit, and violation of prompt payment statutes. The city cross-complained for breach of contract, alleging deficient and incomplete work by P&D.

At jury trial, P&D’s theory was that the contract’s written-change-order requirement was modified by a city employee’s oral authorization of the extra work and by the parties’ conduct in handling the written amendments.

On P&D’s complaint, the jury found the city liable for breach of contract and awarded P&D the full amount of requested damages. On the city’s cross-complaint, the jury found P&D liable for breach of contract and awarded the city a comparatively small sum. Both the city and P&D appealed.

The court of appeal affirmed in part and reversed in part, holding that P&D could not recover for its alleged extra work as a matter of law.

The court found that P&D’s claim for breach of contract lacked merit as a matter of law because P&D could not recover for extra work without a written change order as required by the contract. Unlike private contracts, public contracts that require written change orders cannot be modified orally or through the parties’ conduct. Thus, even were P&D’s evidence of oral authorizations by a city employee for extra work fully credited, P&D could not prevail. Accordingly, submission of the matter to the jury was error, since the city’s nonsuit motion should have been granted.

Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104 held on similar facts that oral modification was inapplicable, given that those dealing with a public agency are presumed to know the law with respect to any agency’s authority to contract. Katsura involved oral modification of a contract, but its reasoning applied equally to modification through conduct.

Likewise, the plain language of the contract here limited the city’s power to contract to the contractually prescribed method. Thus, P&D acted at its peril when it ostensibly relied on a city employee’s oral authorization for extra work without a written change order. The cases cited by P&D in support of modification were unavailing and inapposite.

The court also found that P&D’s other theories of recovery lacked merit. P&D could not pursue on appeal its theory that the city misled it into believing that the golf-course project’s architect would be available to P&D during its work and that it relied on that availability in making both its bid and the contract, given that it did not raise at trial any theory of misrepresentation.

Additionally, the court rejected P&D’s contention that if the judgment were reversed, remand was necessary for reinstatement and trial of P&D’s nonsuited claims for implied contract and quantum meruit. It was well settled that where a written-change-order requirement is not met, a private party cannot sue a public entity on an implied-in-law or quasi-contract theory because such theory is based on quantum meruit or restitution considerations that are outweighed by the need to protect and limit a public entity’s contractual obligations.

The court also rejected P&D’s contention that remand was necessary due to alleged error in the directed verdict on its claim for violation of prompt payment statutes. That issue was moot because P&D was not entitled to payment for any extra work without a written change order.

Nor was there merit in P&D’s argument challenging denial of leave to amend to add claims for breach of the implied covenant of good faith and fair dealing and of a so-called “duty to negotiate in good faith.” The trial court’s ruling was based on unreasonable delay, since P&D did not seek to amend until after the trial readiness conference. Thus, amendment would have required additional discovery and might have resulted in demurrer or other pretrial motions. Further, P&D offered no explanation for its delay.


P&D Consultants v. City of Carlsbad

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