Government Liability Update

Prison Litigation Reform Act Limits Awards of Attorney Fees to 150% of Compensatory Damages Awarded against Defendant

In Jimenez v. Franklin, published May 22, 2012, the 9th Circuit interpreted 42 U.S.C.§ 1997e(d)(2), part of the Prison Litigation Reform Act, to limit attorney fee awards to inmates to 150% of the damages awarded against a defendant.  But it ruled that the defendants in that case had waived any challenge on that ground against a court order awarding fees against multiple defendants jointly and severally, because they did not raise that issue in an earlier appeal from the fee award.

Medical Marijuana Users Cannot Challenge Closure of Dispensaries Through Title II of the ADA

In James v. City of Contra Costa, published May 21, 2012, a divided 9th Circuit panel concluded that Title II of the ADA, which prohibits discrimination against the disabled in providing public services, does not provide a ground for challenging a city's exclusion of medical marijuana dispensaries from its borders.  Although the ADA protects persons with disabilities, the Act excludes from its definition of persons with disabilities persons who use illegal drugs, when the challenged activity is based on the use of those drugs.  Although California state law permits the use of marijuana for medical purposes, federal law does not.  The majority interpreted the ADA to define illegal drug use by reference to federal, rather than state, law.  Congressional action allowing the District of Columbia to implement a medical marijuana initiative did not change that conclusion.  

One judge concurred in part and dissented in part.  She considered the statutory interpretation close, and concluded that the ADA protects use of medical marijuana in California.  She did not, however, rule out the possibility that the ADA does not protect distribution of medical marijuana; and would have remanded the case for consideration of that issue.

Federal Special Education Statutes Create Neither a Cause of Action for Nominal Damages for Failure to Cooperate with Discovery, Nor a Damages Cause of Action against a Magnet School for Reasonable Admission Requirements

In Oman v. Portland Public Schools, published May 14, 2012, the 9th Circuit ruled that neither the Individuals with Disabilities Education Act nor 42 U.S.C. section 1983 created a cause of action for nominal damages for a school district's failure to provide discovery during an administrative due process proceeding arising out of a parent's complaint against the district.  The IDEA does not create a damages cause of action.  That includes nominal damages.  Section 1983 does not create a damages cause of action for any remedy available under the IDEA.  Since the parent could have obtained the discovery through the administrative proceeding (by making a formal request for it), she could not use section 1983 to seek damages, nominal or otherwise, for the failure to provide discovery.

The parent also sought money damages under the ADA and Section 504 of the Rehabilitation Act against the District for imposing an admission requirement for its magnet high school that incoming students write at an eighth grade level.  The ADA and Section 504 bar school districts from improperly excluding disabled students.  Imposing reasonable admission requirements does not improperly exclude disabled students.

Public Official Not Entitled to Qualified Immunity for Allegedly Retaliating against Employee for Employee's Subpoenaed Deposition Testimony in Civil Rights Lawsuit

In Karl v. Mountlake Terrace, published May 8, 2012, the 9th Circuit held that a public employee's subpoenaed deposition testimony, given in a 42 U.S.C. section 1983 case alleging the violation of a fellow employee's civil rights, is speech on a matter of public concern, given in the employee's capacity as a private citizen rather than as part of her job duties.  Therefore, under the analyses set forth in Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) and Connick v. Myers, 461 U.S. 138, 140 (1983), the speech is protected by the First Amendment; and the employee has a cause of action under section 1983 if she suffers employment retaliation because of that speech.  The court further held that even though there was no circuit precedent in 2008 (when the retaliation is alleged to have occurred) holding that the speech was protected, a reasonable official in the defendant assistant police chief's position would have known the speech was protected by the First Amendment.  The assistant chief was therefore not entitled to qualified immunity for the alleged retaliation.

Neither Driver's Drinking Nor Plaintiff's Diagonal Parking in Roadside Area Superseded Alleged Dangerous Design of Public Property

In Cole v. Town of Los Gatos, published April 27, 2012, the Sixth District Court of Appeal reversed summary judgment granted to the defendant town on a roadway dangerous condition case.  The lawsuit arose out of an accident where a driver, who was drinking, drove off the road and ran into the plaintiff, who was standing behind her car, diagonally parked in a gravel area between the road and a park.  The defendant contended that the driver's drinking and the plaintiff's improper parking in the "gravel shoulder" caused the accident, rather than any dangerous condition of property.  The trial court granted summary judgment after sustaining the defendant's objections to the plaintiff's roadway-engineering expert's testimony.  The appellate court reversed.  Evidence that drivers periodically left the roadway and drove on the gravel area to avoid stopped traffic; that drivers parked diagonally on the gravel without objection from the defendant; and that aspects of the roadway might encourage drivers to drive on the gravel, combined with evidence of a prior accident in the area, raised triable issues of fact concerning the existence of a dangerous condition, causation, and notice.

The court rejected the theory that when a third party causes the injury by acting improperly, the property is not dangerous unless it facilitates the improper conduct.  A dangerous condition may also be an independent contributing cause of the accident.

 

 In addition, the appellate court reversed the trial court's rulings on the defendant's objections to the plaintiff's expert's declaration.  

School District's Supervising Managers May Be Held Liable for Retaliation under Whistleblower Statute, But Managing Employees May Not Seek Punitive Damages under Statute

 

[Note:  By request, I've edited the summary of this case from that initially posted, to clarify the interaction of the statutes involved.]

In Hartnett v. Crosier, published April 26, 2012, the Fourth District Court of Appeal, Division 1, agreed with the Third District Court of Appeal's decision in Conn v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, and held that a school district's management employees may be held liable under Education Code section 44113(a) when they act in a supervisory capacity.  

Section 44113(a) bars an “employee” from using his or her power to interfere with any person’s right to disclose to an official agent evidence of improper governmental activity, or threats to employee or public safety.  Section 44114(c) states that a “person” who engages in retaliation against a “public school employee” may be liable for punitive damages.
 
Section 44112(a) defines “employee” under the statute as a “public school employee” as defined in Government Code section 3540.1(j). Subdivision (j) excludes “management employees” from that definition.  But it does not exclude “supervisory employees,” which under Government Code section 3540.1(m) means an employee who has the power to hire, transfer, suspend, layoff, recall, discipline, etc. other employees, or the responsibility to assign work to or direct them, or to adjust their grievances, or to recommend these actions.
 
The court agreed with a previous court’s interpretation of these statutes:  If a management employee is also a supervisory employee, she is an “employee” subject to the Reporting by School Employees of Improper Governmental Activities Act.  But a plaintiff who is a management employee is not entitled to the punitive damages provided by Education Code section 44114(c).

County Hospital Immune from Liability for One Patient's Sexual Assault upon Another

In Johnson v. Alameda County Medical Center, published April 25, 2012, the First District Court of Appeal, Division 4, upheld summary judgment for Alameda County in a case where a patient on a 72-hour psychiatric hold alleged that negligence by the facility and its employees contributed to another patient's sexual assault upon her.  The plaintiff alleged the other patient was able to gain access to her room because the lock on her door was defective and failed to latch.  Although statutes and regulations entitle psychiatric patients to be "free from harm" and the premises of psychiatric hospitals to be in good repair, no regulation requires locks on hospital doors.  Instead, regulations prescribe that locks on doors are optional.  The appellate court therefore upheld the defendants' immunity from liability under Government Code section 845.8, which generally immunizes public entities from liability for injuries to or from inpatients at mental institutions.  The statute does not immunize public employees from their own negligence; but the plaintiff failed to present any evidence that any employee's negligence contributed to the assault.  And although Government Code section 855(a) creates an exception to immunity for injury caused by insufficient personnel, equipment or facilities required by statute or regulation, no specific regulation required a working lock on the door.  The general statutory and regulatory duties that applied to the hospital did not impose requirements specific enough to create a minimum requirement under section 855. 

Private Attorneys Retained by Local Government to Do Its Work Are Entitled to Protections of Qualified Immuni

In Filarsky v. Delia, published April 17, 2012, the U.S. Supreme Court unaniously held that a private attorney whom a California city retained to conduct an employment investigation was entitled to qualified immunity.  The investigated employee sued the attorney and the city employees who participated in the investigation for allegedly violating his 4th Amendment rights by ordering him to take materials from inside his home and display them on his front lawn for inspection.  The district court held all of the defendants were entitled to qualified immunity, because the order did not violate clearly-established constitutional rights.  The Ninth Circuit upheld qualified immunity for all of the defendants except the private attorney.  The Supreme Court reversed.  The reasons for extending qualified immunity to public employees -- the desire not to chill government activity, the need to attract talented persons to do government work, and the policy of avoiding lawsuits that will interfere with the business of government -- apply to private individuals who are temporarily retained to do government work.

There were two concurring opinions.  Justice Ginsburg opined that whether the private attorney could establish the elements of qualified immunity remained in question.  Justice Sotomeyer opined that the analysis might differ depending on the task the private individual is performing for the government.

If Mobile Home Park Is Making Fair Rate of Return, It Has No Constitutional Right to Raise Rents to Market Rates

In Besaro Mobile Home Park v. City of Fremont, published March 14, 2012, the First District Court of Appeal, Division Five, rejected a mobile home park owner's argument that it was constitutionally entitled to raise its rents to market rates.  The owner argued that rent control is constitutionally limited to preventing "excessive" rents; and that, by definition, the market rate rent is not excessive because the market is willing to pay it.  The court opined that mobile home rent control laws are designed to protect unit owners because of their inherent disadvantage in negotiating rates -- i.e., because they cannot easily move their homes, they are subject to whatever rate the owner charges to rent them  the land under their homes.  The owner is constitutionally entitled only to charge enough rent to receive a fair rate of return.  Because there was no dispute that the owner was receiving such a rate, the appellate court upheld the trial court's decision refusing to grant the owner the rent increase he sought.

School Districts May Be Held Vicariously Liable for Administrators' and Supervisors' Negligent Hiring or Retention Recommendations Concerning Employees Who Intentionally Injure Students

In C.A. v. William S.Hart Union High School District, published March 8, 2012, the California Supreme Court ruled that school administrators and supervisors can be held liable for negligent hiring and retention of teachers and other employees who molest students; and that, under Government Code section 815.2(a), the school districts that employ the administrators and supervisors may be held vicariously liable. 

The issue arose because past decisions have established that school districts may not be held vicariously liable for the acts of employees who molest students, because such acts are outside the scope of employment as a matter of law; and may not be held directly liable for negligent hiring or retention, because there is no statutory basis for that cause of action.  Further, administrators and supervisors do not make the ultimate decision whether to hire, retain, or fire employees such as teachers; school boards make that decision.  Nevertheless, the court ruled, administrators and supervisors stand in a special relationship with students that creates a duty of care to prevent injury to them from third persons; and they may have the ability to make recommendations concerning hiring, retention, and firing of employees.

The court stressed that issues of causation and foreseeability limit the administrators and supervisors who can be held negligent, and for whose negligence the districts can be held liable.  Causation requires that the administrators or supervisors' recommendations play a substantial factor in the ultimate decision to hire or retain an employee; and foreseeability requires that the administrator or supervisor know, or reasonably should know, that the employee poses a substantial risk to student safety.

The court further held that the complaint need not name the allegedly negligence administrators or supervisors to survive demurrer -- although they must eventually be identified in the litigation.