The Litigation Practice Group is highly regarded in the legal community and in the judiciary, even being selected by superior court judges to pursue lawsuits on their behalf. Lozano Smith has successfully represented districts and other government entities at all levels of state and federal jurisdiction, and is a constant, powerful advocate for its clients when they often need it the most.

Areas of Practice

The Litigation Practice Group ensures the success and protection of its clients by specializing in:

  • ADA and State Disability Laws
  • Administrative hearings involving grievances, unfair practice charges, layoffs and dismissals, and arbitrations
  • Charter School Issues
  • Construction Advice and Litigation
  • Discrimination, Harassment and Retaliation
  • Environmental Issues
  • Fair Labor Standards Act
  • Personal Injury and Tort Defense
  • Personnel Disputes
  • Police Civil Rights
  • Section 1983 and Civil Rights
  • Student Issues
  • Traditional and Administrative Writ of Mandate

Civil Litigation

Our team is fully-equipped to handle the sweeping range of litigation experienced by our clients throughout the state. Lozano Smith attorneys work in partnership with clients in identifying the strengths and weaknesses of any lawsuit early on as well as developing a strategy that assures your best interests are advanced. Given the landscape and climate of the political arena, a "win" does not always equate to being victorious in the courtroom. When litigation is necessary, our attorneys are capable and experienced in implementing a litigation plan - whether as a Plaintiff or Defendant - which leads to success. That success is easily recognized by the numerous verdicts obtained by our attorneys through both state and federal court. Likewise, our attorneys are also shrewd negotiators, where a negotiated resolution is the preferred outcome. Some of the highlights of our attorneys’ expertise include:

Our attorneys frequently handle claims alleging violation of individuals civil rights arising under both state and federal law, including lawsuits alleging violations of 42 U.S.C. Section 1983 and California's equivalent, the Bane Act. Lozano Smith's police civil rights attorneys vigorously defend peace officers in federal and state court against a wide variety of claims, including excessive force, unlawful arrest, civil rights, wrongful death, assault and battery, negligence, and seizure actions. We have handled class action cases ranging from hundreds to thousands of plaintiffs, and aided clients against claims seeking punitive damages. Our holistic focus on clients is regularly demonstrated with our understanding of the underlying training, policies and practices related to law enforcement officers. Not only do our attorneys provide law enforcement training, our deep bench of litigators and Local Government Practice Group work in conjunction with numerous departments to update and implement appropriate policies.
Real experience is indispensable when attorneys are called upon to defend claims under the Americans with Disabilities Act and/or California's Disabled Person's Act. Our attorneys recently represented the City of Los Angeles in arguably the largest ADA class action litigation ever prosecuted in the state, based on claims of program access and accessibility barriers. Our approach to disability claims is also somewhat unique; each claim is analyzed independently to identify not only the potential risk and expense, but also to develop a plan for resolving the matter as expeditiously and efficiently as possible. Although our attorneys have litigated countless disability lawsuits through state and federal courts, they are also adept at directing matters towards structured negotiations either prior to or after the suit has been filed.
While insurance coverage is likely not the first issue that comes to mind when discussing the representation of public entities, it is nevertheless significant. One of our considerations in any assignment is if there is a potential for contribution from other sources, whether those contributions are defense costs or indemnity payments. As part of the firm's overall case management approach, we investigate insurance coverage and the viability of indemnity claims to help pay for litigation costs and defray client expenses. We have a core group of attorneys who serve as defense counsel with extensive experience in insurance coverage and bad faith actions, assuring any potential benefits are either provided or pursued on behalf of our clients.
Due in large part to our focus on representing public entities and their employees, we are immensely familiar with the Government Claims Act and the related immunities. That experience has allowed us to take advantage of lesser-known provisions of the Act, successfully arguing key provisions and the related immunities through dispositive motions and assuring that any discovery is carefully undertaken in order to narrow a plaintiff's claims. In situations involving representation of judicial officers, board members and/or council members, this often translates to the case being completely dismissed in response to either a Demurrer or Motion to Dismiss. Our attorneys have written an up to date Government Claims Handbook that all clients receive, that includes form letters and current information on the Act.
Lozano Smith's Construction Advice and Litigation ("CAL") attorneys provide timely and cost-sensitive legal services related to public works projects of all kinds. We assist clients with project planning, contract documents, and bid issues at the beginning of a project; project management, disputes and change orders during a project; and completion, payment, claims and litigation at project closeout. Our dispute resolution and litigation expertise spans all disputes, whether standard (extra work, delay and stop payment notice claims) or complex (contractor defaults, surety disputes and false claims). We have also successfully represented clients in construction consultant disputes and construction defect litigation.
Our attorneys have extensive experience assisting public agencies with CEQA issues and other California environmental laws. We frequently advise our clients how they may best navigate CEQA procedures and avoid legal challenges. Recently, Lozano Smith advised the City of Piedmont in relation to CEQA compliance for a hotly contested field and lighting project. Lozano Smith has had a successful track record in litigating CEQA issues. For example, we prevailed in a heavily contested series of lawsuits, including CEQA causes of action, seeking to stop development of a public high school that was supported and approved by Pajaro Valley Unified School District and the City of Watsonville. The primary case was upheld on appeal.
Although not as dramatized as many of our other matters, premises liability claims are at the core of our litigation practice. Lozano Smith's attorneys have represented scores of public entities throughout the state in defense of claims alleging the existence of a dangerous condition of public property. Our role as defense counsel often expands to assist in updating our clients' business practices and policies in an effort to not only minimize future claims, but also eliminate injuries. One of our attorneys has also been at the forefront of this area by litigating two of the lead cases recently decided by the California Appellate Courts, articulating the standards for establishing when a public entity could be held liable for the misuse of public property.
Our attorneys have significant experience in advising and responding to investigations by the Department of Justice, Attorney General's office, FBI, District Attorneys' office and related regulatory and/or investigatory agencies. That experience allows us to assure that any interactions are undertaken with an eye towards protecting our clients from any potential exposure. However, we understand there are multiple facets to the process. More often than not, the involvement by those agencies signifies a more significant issue which is likely to receive significant public scrutiny. We are keenly aware of the Freedom of Information Act and the related Public Records Act and how the various media sources utilize those rights to obtain copies of our clients' responses. Moreover, we understand how to utilize those proceedings to our clients' advantage.
Our attorneys work with various public agencies handling discrimination, harassment and retaliation matters. Members of the Litigation Practice Group have represented public agencies in investigations by administrative agencies, and have handled discrimination, harassment and retaliation suits from the initiation of litigation through the rendering of a jury verdict in both state and federal courts. Our attorneys also regularly conduct training for supervisory and other employees on discrimination, harassment and retaliation prevention.

Our background in advising public employers provides us with the practical knowledge of such matters when it comes to negotiations, contract grievances, disciplinary appeals, unfair labor practice charges, and personnel investigations. We have represented and defended public sector employers in virtually all matters involving state and federal labor and employment laws, including:

  • Title VII of the Civil Rights Act of 1964 / Civil Rights Act of 1991
  • Fair Labor Standards Act / Equal Pay Act of 1963
  • Age Discrimination in Employment Act of 1967
  • Family Medical Leave Act
  • Title I and Title V of the Americans with Disabilities Act of 1990
  • Uniformed Services Employment and Reemployment Rights Act
  • California Fair Employment and Housing Act
  • Unruh Civil Rights Act
  • California Family Rights Act and Pregnancy Disability

Real World Applications

The Litigation Practice Group works in partnership with clients, regularly communicating the status of their case, with an eye toward cost containment and ensuring they're timely informed about the progress of their case. When litigation is undertaken, a case budget is prepared, the client's approval is obtained for that budget and regular communication is maintained to keep the client informed of the status of the case as it is proceeding. The firm is experienced and well versed in various forms of ADR, including arbitration, mediation and both informal and formal settlement conferences.

Fresno, Bakersfield dbacigalupi@lozanosmith.com
Los Angeles, San Diego dkameya@lozanosmith.com
Fresno, Sacramento, Bakersfield jbehrens@lozanosmith.com
Los Angeles, Bakersfield mkitabayashi@lozanosmith.com
Matthew R. Hicks Senior Counsel
Steve  Ngo Senior Counsel
Walnut Creek sngo@lozanosmith.com

California Supreme Court Holds Disclosure Is the Rule, Not the Exception, in Public Record Requests

By:Jenell Van Bindsbergen, Alyse Pacheco -

October 2017 Number 59 Automated license plate reader (ALPR) scan data is not subject to the "records of investigation" exemption under the California Public Records Act (CPRA), the California Supreme Court has ruled. The Court, however, did not foreclose the ability to withhold such information if it would invade an individual's privacy. In American Civil Liberties Union of Southern California v. Superior Court of Los Angeles County (Aug. 31, 2017, No S227106) ___ Cal.5th ____, the Co...

School District Need Not Accommodate Coach's Request to Publicly Pray at Football Games

By:Sloan Simmons, Alyssa Bivins -

October 2017 Number 58 A Washington school district was not required to allow a high school football coach to pray on the 50-yard line at the end of each game, the Ninth Circuit Court of Appeals ruled in Kennedy v. Bremerton School District (9th Cir. 2017, No. 16-35801) ___F.3d___ <http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/16-35801.pdf>. The court found that the District did not violate the coach's First Amendment rights by placing him on administrative leave for ref...

Court Eliminates Registration Requirement for Model Aircraft

By:William Curley III, Carrie Rasmussen -

September 2017 Number 55 The Federal Aviation Administration (FAA) may no longer require the registration of model aircraft, following the D.C. Circuit's decision in Huerta v. Taylor. Model aircraft, commonly known as drones, are unmanned aircraft that weigh 55 pounds or less and are used exclusively for recreational purposes. Small unmanned aircraft used for any commercial purposes, or unmanned aircraft heavier than 55 pounds, are not impacted. The Huerta case challenged a rule pro...

California Supreme Court Denies Untimely Childhood Sexual Abuse Damages Claim

By:Sloan Simmons, Erin Frazor -

September 2017 Number 53 A divided California Supreme Court threw out a woman's claim against a public agency arising from resurfaced memories of alleged sexual abuse in the early 1990s because it was not submitted to the public agency by the six-month deadline for submitting such claims under the Government Claims Act. (Rubenstein v. Doe No. 1 et al. (Aug. 28, 2017, No. S234269)__ Cal.5th __.) In a 4-3 decision, the Court found that the "delayed discovery rule" applicable to childhood...

Discovery of Public Records after Requester Filed Lawsuit Leads to Attorney Fee Award for Plaintiff

By:Manuel Martinez, Steve Ngo, Jerrad Mills -

September 2017 Number 51 A California appeals court has found a city liable for attorney's fees after determining that a related lawsuit prompted the city to produce records during the litigation that the plaintiff had first sought through a California Public Records Act (CPRA) request. In Sukumar v. City of San Diego, the Court of Appeal held that the City of San Diego, although acting in good faith and having ultimately disclosed all records responsive to a CPRA request, had to pay a...

Environmental Review Not Necessarily Required Prior to Approval of a Real Property Purchase Agreement

By:Kelly Rem, Jennifer Grant -

September 2017 Number 49 The Fourth District Court of Appeal has ruled that the execution of a purchase and sale agreement for real property that is contingent upon compliance with the California Environmental Quality Act (CEQA) does not trigger a public agency's duty to prepare an environmental impact report (EIR) under CEQA. The California Environmental Quality Act CEQA is a complicated body of law which requires public entities to consider environmental effects of their projects ...

Appellate Courts Reject Recreational Trail Immunity for Adjacent Hazards

By:William Curley III, Arne Sandberg -

August 2017 Number 47 Two decisions in the last three months have increased the potential for a public entity to be held liable for an injury suffered on one of its recreational trails. Appellate courts deciding Garcia v. American Golf Corporation (May 3, 2017, No. B267613) ___ Cal.App.5th ___ and Toeppe v. City of San Diego (July 27, 2017, No. D069662) ___ Cal.App.5th ___ held that a public entity cannot assert recreational trail immunity when an adjacent hazardous condition of the publi...

Representative Cases

In Govan v. City of Clovis, Lozano Smith successfully obtained dismissal of several constitutional and other statutory claims asserted by a Plaintiff business operator against the City of Clovis and individual City police officers, where the Plaintiff challenged the City of Clovis’ sign ordinance and its enforcement. The District Court, entered judgment in the City’s favor following dismissal of all of the Plaintiff’s claims, which included several theories on the alleged violation of his First Amendment free speech rights, violation of his constitutional due process rights violation of his equal protection rights, and other state law claims.
Chisom et al. v. Bd. of Retirement et al. Court of Appeal, Fifth District. Case No. F064259 A recent published decision upholding a decade-old settlement agreement and rejecting a group of retired Fresno County employees' attempt to use parole evidence to advance an interpretation of the settlement agreement that would have allowed the former employees to pursue their claims for an "enhanced" non-service-connected disability retirement benefit.
Leonard Avila v. City of Los Angeles, et al. 9th Circuit Court of Appeal, Case No. 12-55931 where Lozano Smith successfully defended the City of Los Angeles and Los Angeles Police Department in an employment case. Following testimony, Lozano Smith asked the judge to dismiss certain claims because the officer had not introduced sufficient evidence. The judge agreed in part, and the jury was only asked to consider the officer's claims concerning retaliation under the FLSA and due process violations. The jury's verdict was a good one for the City and the LAPD, because they prevailed on the due process claim.
Assisted eleven school districts in invalidating audits of several state mandated cost reimbursement claims worth more than $30 million, based upon the use of invalid, underground auditing documentation rule by the State Controller's Office. The firm was later able to receive an award of $240,000 from the superior court for fees and costs incurred in the litigation efforts, largely offsetting the school districts' legal costs in the case. (Clovis Unified School District v. Chiang (2010) 188 Cal.App.4th 794.)
Shiell, et al. v. County of Los Angeles, et al., Los Angeles County Superior Court Case No. BC208582, Equal protection action claiming staff members of a non-profit, public benefit corporation were entitled to the same rights, salaries and benefits of County employees because they performed the same work. A dispositive motion was decided in the County's favor.
Lozano Smith represented the City of Los Angeles in one of the largest class action disability lawsuits in the country. In Willits, Mark, et al. v. City of Los Angeles, the plaintiff filed an Americans with Disabilities Act (ADA) complaint to install curb cuts and sidewalk repairs throughout the City, to enforce the ADA. This case involved extensive E-Discovery of the City and its various departments’ internal data management system. The recently negotiated settlement will allow the City to completely revitalize its public right-of-ways to assure that all of the residents and visitors are able to fully participate in all of the available programs and services offered by the City.
Hall, et al. v. County of Los Angeles, Los Angeles County Superior Court Case No. BC208583, Approximately 200 female attorneys of a non-profit, public benefit corporation brought a sex discrimination suit claiming they were not receiving the same salaries and benefits as male employees of the County, despite doing the same work. The County’s dispositive motion was ultimately granted on the grounds that plaintiffs were using improper male comparators and had not shown any indicia of discrimination.
Lozano Smith was part of the team representing Los Angeles Unified School District in Williams v. State of California, a massive statewide class action involving alleged conditions in public schools including alleged inequalities in school facilities, instructional materials and teachers, particularly at underperforming schools that were already the subject of various state and federal categorical programs.
Nathan G. v. Clovis Unified School District (2014) 224 Cal.App.4th 1393. Successfully defended school district’s involuntary transfer of student to continuation high school and obtained first published opinion interpreting the involuntary transfer statute, the appropriate level of judicial review in such cases, and the nature of other means of correction requirement under the law before imposing an involuntary transfer.
In Doe 1, et al. v. State of California, et al., Lozano Smith successfully represented Dinuba Unified School District by resolving litigation brought by the American Civil Liberties Union (“ACLU” and three of its affiliates – Northern California, Southern California, and San Diego), California Rural Legal Assistance, Inc., Asian Pacific American Legal Center, and Wilson Sonsini Goodrich & Rosati, PC. As lead counsel, the ACLU alleged inadequate monitoring of the District’s English Language Learner programs, and that the District maintained an educational method which they alleged violated federal law and the state constitution. The lawsuit presented new questions of law under federal education statutes as well as state constitutional provisions. The result for the District was significant, and substantially reduced liability and exposure – saving over $1,000,000 in claimed plaintiff's attorney fees.
A.A. v. Raymond (E.D. Cal. July 22, 2013) 2013 WL 3816565. Successfully represented Sacramento City Unified School District in defeating a bid to halt school closures by way of preliminary injunction, where the federal district court agreed that plaintiffs were unlikely to succeed on the merits of their equal protection, American Disabilities Act, and due process claims challenging the school closures.
Clovis Unified School District v. Chiang (2010) 188 Cal.App.4th 794. Assisted eleven school districts with invalidating audits of several state mandated cost reimbursement claims worth more than $30 million, based upon the use of invalid, underground auditing documentation rule by the State Controller’s Office. The firm was later able to receive an award of $240,000 from the superior court for fees and costs incurred in the litigation efforts, largely offsetting the school districts’ legal costs in the case.
Cal.200 et al. v. San Francisco Unified School District, San Francisco County Superior Court Case No. CGC-13-534975. Lozano Smith is representing multiple school districts in this statewide class-action lawsuit alleging violation of Physical Education instructional minutes in grades 1-6. The firm is effectively navigating a resolution of this case.
Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262. Lozano Smith successfully argued, in a case of first impression, that the geographic and site limitations of the Charter Schools Act (Ed. Code, § 47600 et seq.) are applicable to all charter schools, including “nonclassroom-based” programs.
Everett H. v. Dry Creek Joint Elementary School District (E.D. Cal. 2014) __ F.Supp.3d __, 2014 WL 1123802. Successfully established on motion to dismiss inability of plaintiff to state claims against individual district defendants under the IDEA, Title II of the ADA and section 504.
McIntyre v. Sonoma Valley Unified School District (2012) 206 Cal.App.4th 170. Successfully defended the school district against employee challenge to status and nonreelection. The California Court of Appeal reaffirmed key legal principles by holding that the school district correctly classified the employee as a temporary employee and then properly converted her to a probationary employee and properly and timely nonreelected employee during her second year of probationary employment.
Rimando v. Alum Rock Union Elementary School District (9th Cir. 2009) 356 Fed.Appx. 989. Successfully argued that a California public school district is a “State employer” for purposes of the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) and consequently suits against school districts under USERRA must be filed in state court. The Rimando decision is the first of its kind by the Ninth Circuit to address USERRA suits brought against California public school districts.
Atwater Elementary School District v. Department of General Services (2007) 41 Cal.4th 227. Lozano Smith attorneys successfully represented a school district and convinced the California Supreme Court to issue a landmark decision holding that the four-year limitations period for a school district to bring dismissal charges against a teacher is not absolute. As a result, the Supreme Court adopted the school district’s contention that the four-year period should be extended based on principles of equity to permit the District to introduce evidence of sexual misconduct that was discovered by the district many years after it occurred. This important case strengthens the ability of all public school districts to impose discipline against certificated employees.
Alex G. v. Bd. of Trustees (E.D. Cal. 2005) 387 F.Supp.2d 1119. Successfully moved for partial summary judgment on behalf of the District, resulting in one of the first published decisions applicable in California to stand for the proposition that a plaintiff seeking to impose liability under section 504 in the context of special education “must show that the educational decisions relating to the student were so inappropriate as to constitute either bad faith or gross misjudgment.”
Modtech Holdings v. Pajaro Valley Unified School District. On two separate elementary school projects totaling $4 million, the District withheld substantial sums to cover damages caused the contractor. One project suffered a fire for which the contractor was not compensating the District for its damages. The other project suffered construction deficiencies in the stucco and roof. The contractor sued for improper withholding and the District cross-complained for additional damages, creating a $1 million dispute. After discovery and expert investigation revealed additional claims for the District, the case resolved very favorably for the District a few months short of trial.
Morgan Hill Unified School District v. Minter & Fahy Construction Company, Inc. et al., Santa Clara County Superior Court, Case No. CV772368 (2002-2003). As part of a three week jury trial, successfully represented the school district against contractor and pipe manufacturer arising from underground fuel storage tank that leaked, and obtained judgment in excess of $2 million including interest and attorney’s fees. *Case handled by a current Lozano Smith attorney prior to their employment at Lozano Smith.
K.M. v. Tustin Unified School District. In 2013 and 2014, represented the National School Boards Association and California School Boards Association as amicus curiae before the U.S. Supreme Court, in an attempt to convince the court to grant review of a Ninth Circuit opinion relating to the interaction between the IDEA and ADA.
Hildebrandt v. St. Helena Unified School District (2009) 172 Cal.App.4th 334. Lozano Smith attorneys authored an amicus brief on behalf of the California School Boards Association (CSBA) and asserted arguments that were adopted by the Court of Appeal in regard to bumping rights in a certificated layoff. This important case established a school district’s right to refuse to “split” an existing full-time certificated position during a certificated layoff to accommodate a more senior employee’s desire to “partially bump” into a more junior employee’s assignment.
Chavez v. City of Los Angeles (2010) 47 Cal.4th 970. Amicus counsel for the League of California Cities and the California State Association of Counties, in which the California Supreme Court sided with amici and the City of Los Angeles with regard to limits on the award of fees under the Code of Civil Procedure.
Morse v. Frederick (2007) 127 S.Ct. 2618. Amicus counsel for the National School Boards Association and the American Association of School Administrators. The Supreme Court of the United States upheld the right of a high school principal in Juneau, Alaska, to discipline a student who held up a banner proclaiming “BONG HiTS 4 JESUS” during a school-endorsed activity even without a showing of likely material disruption to the school environment. In doing so, the court overruled the previous decision of the Ninth Circuit Court of Appeals, which would have imposed personal liability on the principal for violation of the student’s First Amendment rights.
Eklund v. Byron Union School District (9th Cir. 2005) 154 Fed.Appx. 648. Represented the National School Boards Association and the California School Boards Association as amicus, where the district won the case before the U.S. Ninth Circuit Court of Appeals on a question involving religion in the schools.