Government Liability Update

Public Entities May Retain Private Counsel on Contingency-Fee Basis to Prosecute Civil Nuisance Actions

In County of Santa Clara v. Superior Court, published July 26, 2010, the California Supreme Court retreated from a broad holding in a previous case, and held that public entities can retain private counsel on a contingency-fee basis to prosecute civil suits to abate nuisances.  Recognizing the potential conflict of interest, the Court imposed limits on such representations.  Public entity attorneys must supervise the private attorneys, and retain complete control over the private attorneys' actions.  The contingency fee agreements must provide for that control.  And the prosecutions must not involve fundamental constitutional rights, such as free speech.

Coroner Has No Duty to Obtain Family's Consent Before Retaining Organ for Study after Autopsy

In Benson v. Superior Court, filed May 25, 2010 and ordered published June 22, 2010, the 1st DCA held that, under California law, neither the coroner nor a doctor employed by the coroner owes a duty to a decedent's next of kin to obtain the family's consent before retaining an organ (in this case, a heart) from the decedent's body after autopsy.  The plaintiff defeated summary judgment in the trial court by presenting an expert's declaration that retaining the entire heart was not necessary for clinical diagnostic purposes.  The appellate court ruled that summary judgment should have been granted, because the coroner may retain an organ for study or to determine the cause of death, without seeking the next of kin's consent.

Safe Water Drinking Act's Obligation for Counties to Oversee Drinking Water Systems Does Not Impose Mandatory Duty to Notify Users of Dangers

In Guzman v. County of Monterey, published today, the California Supreme Court rejected an argument that the Safe Water Drinking Act requires counties that oversee privately-owned water systems to report unsafe conditions in those water systems to the users.  The Act places that responsibility on the system owners.  The Court therefore held that the defendant county could not be held liable under Government Code section 815.6 to users exposed to water with unsafe flouride levels.

Owner of Condemned Property Not Entitle to Compensation for Goodwill unless an Ongoing Business Exists on the Condemned Property

City and County of San Franciso v. Coyne ruled that owners of a condemned parcel on which they planned to build a condo complex were not entitled to compensation for the revenue they might have received on the project.

Public Official Can Be Held Liable for Defamatory Speech

In Manufactured Home Communities, Inc. v. County of San Diego, a divided 3-judge panel of the Ninth Circuit ruled that a county supervisor who made hostile public comments about a mobilehome park owner could be held liable if the comments amounted to false statements of fact.  The appellate court reversed a district court decision granting an anti-SLAPP motion to strike the lawsuit.   The majority ruled that a jury could find some of the supervisor's statements to be false assertions of fact, rather than hyperbole or opinions.

The dissenting judge argued that the mobilehome park owner had failed to establish that any of the supervisor's statements were false; and that an anti-SLAPP motion was therefore appropriate.