Government Liability Update

Statute That Prescribes a Negative HIV Test "Shall Be Required of" a Boxer Imposes Mandatory Duty on State Not to Issue License Without the Test

In Corona v. State of California, published today, the 4th DCA, Division 2, reversed the dismissal on demurrer of a boxing referree who sued the state after an HIV-positive boxer fought in a match he referreed, exposing the referree to HIV.  Business & Professions Code section 18712 requires boxers seeking renewal of their licenses to provide evidence to the boxing commission of negative HIV, Hepatitis B and Hepatitis C tests; and to provide the same negative tests before boxing in a match.  Although the statute appears to impose a duty on the boxer, the court held that the statute actually imposes a mandatory duty on the Commission not to issue boxing licenses or allow participation in matches of boxers who fail to provide the negative tests.  It therefore concluded the referree stated a cause of action under Government Code section 815.6.  It reversed the trial court's conclusion that the licensing immunity under Government Code section 818.4 applied.  That immunity, concluded the court, applies only to discretionary licensing decisions; and does not apply to violation of a mandatory duty.

Sacramento Court of Appeal Limits Scope of Mary M.'s Holding

In M.P. v. City of Sacramento, published today, the Third District Court of Appeal ruled that the city was not vicariously liable for a sexual assault its firefighters allegedly committed while on duty, despite an alleged city policy of allowing on-duty firefighters to go to bars, drink, and pick up women. The plaintiff contended that because the firefighters allegedly abused their post-9/11 status as heroes to pick up women, the California Supreme Court case of Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 applied. Mary M. held that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty. The M.P. majority sharply criticized the Mary M. decision, and doubted whether the current Supreme Court would affirm it; and opined that in any case it should be limited to police officers. The court affirmed summary adjudication for the city. A dissenting justice wrote that the alleged city policy created a triable issue of fact that should defeat summary adjudication.

Prosecutors Absolutely Immune from Section 1983 Liability for Making Parole Recommendations

Brown v. California Dept. of Corrections, decided by the Ninth Circuit, holds that a prosecutor is absolutely immune from liability under 42 USC section 1983 for entering into an oral plea agreement that a defendant will serve a certain prison term; and then after that term passes recommending to the parole board that the defendant stay in prison.

Social Worker Immune from Liability for Conducting Deficient Investigation Before Returning Child to Parent

in Ortega v. Sacramento County Department of Health and Human Services , filed today, the Third District Court of Appeal ruled that a social worker was immune from liability for returning an 11-year-old girl to her father, who had a drug problem.  Four days after custody was returned, the father stabbed the child.  The court concluded that even though, in its opinion, the social worker's investigation was "lousy," the worker was immune under Government Code section 820.2 for her discretionary decision to return the child.  The worker's only mandatory duties were to investigate before returning the child -- and the worker did so.

Firefighting Immunities Eliminate Public Entity Duties to Fire Victims

People v. Superior Court (United Water Conservation District), published on February 4, 2008, arises out of a suit by the California Department of Forestry and Fire Protection against the real party District, for reimbursement of fire-fighting costs.  The District admitted it started a 2003 forest fire that cost over $3.871 million to combat.  The District alleged that the plaintiff Department was negligent in fighting the fire.  The District asserted affirmative defenses of comparative fault and failure to mitigate damages.  The trial  court allowed the District to pursue these defenses. 

The Court of Appeal issued a writ directing the trial court to grant judgment on the pleadings against the defenses.  It ruled that the fire-fighting immunities under Government Code sections 850, 850.2 and 850.4 were complete immunities that eliminated any duty that the Department owes to persons or property damaged by fire.  The immunities therefore bar any allocation of fault to the Department for the fire's damage.

By comparison, Ovando v. County of Los Angeles, discussed below in an earlier post, held that another Government Code immunity (Goverment Code section 821.6) did not eliminate immune public employees' duties; and therefore did not bar apportionment of fault to those employees under Proposition 51.

Prop 51 and Prosecutorial Immunity

Ovando v. County of Los Angeles, in which we represent the defendants, sets forth important rulings concerning the accrual of a criminal defendant's cause of action for legal malpractice, and Prop 51 apportionment of fault to a tortfeasor who is immune from liability under Government Code section 821.6.

Government Wedding Crashers Immune

In Richardson-Tunnell v. SIPE, the Second Appellate District, Division Six, addressed whether a workers compensation JPA and a school district employer  could be held liable under the Californiapaparazzi statute for workers comp investigators who  posed as wedding guests so that they could surreptitiously video a claimant at her wedding -- and who later videotaped the claimant on her honeymoon -- could be held liable under California's paparazzi statute.  The court held that they could not.  Government Code section 821.6 -- which immunizes administrative and legal prosecutions -- immunized the investigative conduct.

The court also held that section 821.6's immunity is jurisdictional.  The defendants therefore did not waive the defense by failing to plead it in their answer.  Instead, it could be asserted for the first time on a motion for judgment on the pleadings; or even on appeal.

Limiting Liability for Mental Patients' Injuries

Lockhart v. County of Los Angeles, a case in which we represented the County as appellate counsel, addresses the sensitive area of public health care provider immunity for injuries to mental inpatients.

In Lockhart, the plaintiff's father was on suicide watch in a mental hospital during a 5150 hold and a subsequent 14-day hold.  He locked himself in his bathroom and hanged himself.  Efforts to revive him were unsuccessful.

Government Code section 854.8 broadly immunizes public entities from liability for injuries to inpatients of mental institutions.  One exception to the immunity is Government Code section 855.  Section 855 renders the entity liable for injuries in medical facilities subject to regulation by specified state agencies dealing with social services or mental health, if the injury proximately results from failure to provide adequate or sufficient equipment, personnel or facilities required either by statute, or by any regulation of the specified state agencies "prescribing minimum standards for equipment, personnel or facilities" -- unless the entity establishes it exercised reasonable diligence to comply with the regulations.

Plaintiff alleged that the facility violated County regulations, federal Medicare regulations, and Joint Commission on Accreditation of Healthcare Organization standards.  None of those bodies are listed in section 855.  The appellate court therefore ruled that violation of those bodies' standards does not trigger section 855's exception to the section 854.8 immunity.

The court further ruled that only statutes and regulations that prescribe minimum standards can create liability.  Regulation that simply require "sufficient" equipment, personnel or facilities are too broad to fit within the "narrow exception of Government Code section 855."  On this point, the Second District Court of Appeal, which decided Lockhart, disagreed with the First District Court of Appeal's decision in Baber v. Napa State Hospital (1989) 209 Cal.App.3d 213, 220, which held that such broad regulations met section 855's criteria.

The Lockhart court emphasized the need to preserve local entity's discretion over what constitutes "sufficient" equipment, personnel or facilities where regulations did not prescribe minimum standards.

Supreme Court Interprets Litigation Privilege Broadly

Jacob B. v. County of Shasta is an important case for all public entities -- indeed, for all persons -- who provide information to courts.

In Jacob B., a family accused a 15 year old of molesting his nephew.  Although the youth was not prosecuted, a county victim's rights group concluded by a preponderance of the evidence that the molestation occurred; and paid the nephew victim's compensation for counseling.  The rights group stored the record in its computer files without noting the alleged molestor's age.  Later, the question of whether the nephew would be allowed to visit the uncle arose in family court.  At the nephew's mother's request, the rights group wrote the family court a letter advising it of the molestation claim and the payment of victim's compensation.  The uncle sued the county for various causes of action, including violation of his right of privacy under the California Constitution.

The California Supreme Court held that Civil Code section 47(b)'s litigation privileged absolutely protected all catagories of permitted communications with the court.  It therefore protected the victims right's group from liability for the letter to the court -- regardless of whether the group violated the law by improperly releasing juvenile-offender information.  Further, the privilege protects communicators against liability for violation of constitutional privacy rights.  The only cause of action to which the privilege does not apply, the court concluded, is malicious prosecution.  (Public entities and employeesare immune from liability for malicious prosecution under Government Code sections 821.6 and 815.2(b).)

Negligent Misrepresentation Immunity Applies to Public Officer's Employee-Compensation Decisions

Government Code section 822.2 grants public employees qualified immunity from liability for  misrepresentations involving business or financial matters.  In County of Kern v. Sparks, the appellate court held that a sheriff who allegedly granted unauthorized premium pay to commanders -- and falsely certified payroll reports to the county in the process -- could be held liable under the state False Claims Act; but was immune under section 822.2 from liability for negligent misrepresentation.  The court concluded the alleged misrepresentations involved business and financial matters.