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Court of Appeal:
Challenge to Program Promoting Minority Business Timely
Opinion Says ‘Continuous Accrual’ Applies to the State, Federal Constitutional Claims
By a MetNews Staff Writer
Div. Three of the First District Court of Appeal has held that a judge erred in granting judgment on the pleadings in favor of county agencies on the ground that constitutional claims brought by taxpayers challenging programs promoting minority-owned businesses—approved in 2003 and 2010—were time-barred, finding that the programs and the constitutional rights at stake are ongoing.
Justice Carin T. Fujisaki authored the unpublished opinion, reversing an order of Alameda Superior Court Judge Stephen Kaus. After the plaintiffs opted not to amend their complaint and asked the court to enter judgment so they could appeal, judgment was entered against plaintiffs.
Presiding Justice Alison M. Tucher and Justice Ioana Petrou joined in the opinion.
Constitutional Claims
The non-profit organization Californians for Equal Rights Foundation and Alameda County residents and taxpayers Chunhua Liao and Deborah Ferrari filed suit against Alameda County, Alameda County Public Works Agency and Alameda County General Services Agency.
In their complaint seeking declaratory and injunctive relief, as well as nominal damages, the plaintiffs challenged the ongoing existence and implementation of defendants’ Construction Compliance Program and the Enhanced Construction Outreach Program.
Each of the programs requires prime contractors to meet a 15 percent participation goal for minority-owned business enterprises in certain construction projects or to demonstrate good-faith efforts to do so. The defendants adhered to requirements of the two programs, which are partially taxpayer funded, in their consideration of projects in 2020 and 2021.
The plaintiffs asserted causes of action under 42 United States Code §1983, alleging violations of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and of Article I, §31 of the California Constitution.
The defendants argued that each of the plaintiff’s causes of action are time-barred by the four-year statute of limitations set forth in Code of Civil Procedure §343, which provides: “An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”
Trial Court Decision
Kaus was not persuaded by an argument that “the programs constitute a continuing violation such that their cause of action accrues upon annual tax payments.” He wrote:
“The wrongful course of conduct alleged here, described by Plaintiffs as ‘government sanctioned racial discrimination’… was as apparent when the programs were initially enacted as it is now. The Complaint fails to allege an unnoticed pattern of frequent or similar acts. Thus, the continuing violation doctrine does not apply.”
Under these circumstances, he found “Plaintiffs’ Complaint is time-barred” and granted the motion for judgment on the pleadings.
Fujisaki’s Opinion
Fujisaki said that whether the trial court erred in finding that plaintiff’s complaint is untimely hinges on when the causes of action accrued. She found that a cause of action is generally deemed to have accrued when each of the elements of wrongdoing, harm and causation have occurred, but noted that a handful of equitable exceptions to the rule exist and wrote “[a]mong these is the doctrine or theory of continuous accrual.”
She said the doctrine applies when a series of wrongs occurs, each triggering its own limitations period, so that relief may be time-barred as to older events but timely as to newer ones. The jurist explained that silence as to applicable statute of limitations favors a presumption of permitting the application of common law accrual rules.
The justice noted that neither the state nor federal equal protection provision includes a statute of limitations nor does either “offer a relevant definition of when claims alleging their violation accrue,” adding:
“Nor do the allegedly applicable statutes of limitations—i.e., section 343 and section 335.1—make any mention of accrual or an alternative to the traditional accrual rule.”
Sec. 335.1 pertains to “[a]n action for…injury to…an individual caused by the wrongful act or neglect of another.”
She declared:
“[G]iven the continuing constitutional obligations of defendants to ensure equal protection and equal treatment under the law, we conclude that giving effect to the continuous accrual doctrine is appropriate on the facts alleged.”
She declined to decide whether the four-year statute of limitations in §343 or the two-year statute in §335.1 applies to the causes of action, saying:
“Plaintiffs take no position as to which is the correct statute of limitations, and neither do we. Under either of these limitations periods, defendants fall short of salvaging their judgment on the pleadings.”
The case is Californians for Equal Rights Foundation v. County of Alameda, A167472.
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