Government Liability Update

Plaintiff Need Not Exhaust Remedies under the IDEA to Obtain Money Damages under the ADA

In Perez v. Sturgis Public Schools, published March 21, 2023, the U.S. Supreme Court unanimously reversed a lower court decision dismissing a suit under the Americans with Disabilities Act.  The plaintiff, a deaf student, alleged that his school district deprived him of a Free and Appropriate Public Education by providing him with inadequate sign language interpreters, with the result that he was unable to graduate from high school with his class.  He and his family filed a complaint with the state department of education, alleging that the school had failed its duties under the Individuals with Disabilities Education Act (IDEA) and other laws.  Before an administrative hearing was held, the district and family entered into a settlement under which the district agreed to provide him the forward-looking equitable relief he sought.  The plaintiff then sued the district under the ADA, seeking compensatory damages.  The district court and circuit court held that the suit was barred under 20 U.S.C. section 1415(l), part of IDEA.  This statute provide that nothing in IDEA shall be construed to restrict individuals from seeking "remedies" under the ADA or other federal laws protecting rights of children with disabilities, except that before filing an action under one of those laws, seeking "relief" that is also available under the IDEA, the procedures under section 1415 for administrative remedies shall be exhausted.  The courts have split on whether this provision requires exhaustion of administrative remedies under IDEA when seeking damages (which are not available under IDEA).

The Supreme Court held that under the statutory language, "relief" and "remedies" have the same meaning.  Therefore, IDEA's administrative remedies must be exhausted only when seeking remedies (such as forward-looking equitable relief) that is available under IDEA.  Because backward-looking compensatory damages are not available under IDEA, plaintiffs do not need to exhaust IDEA's administrative remedies before suing under other federal statutes for such damages.

Under State-Created Danger Doctrine, Officers and Social Worker Who Left Mentally Ill Mother Alone with Infants Can Be Sued for the Infants' Death

In Murguia v. Langdon, published March 14, 2023, a divided panel of the 9th Circuit Court of Appeals reversed in part an order dismissing a suit under 42 U.S.C. section 1983.  The plaintiff called 911 seeking emergency mental health assistance for his ex-wife, with whom he lived and had five children, including infant twins.  The mother was displaying bizarre behavior.  In response to the call, the first group of officers separated the mother and her twins from the plaintiff, and allowed the mother and a friend of hers to take the twins to church.  They prevented the plaintiff from following.  An officer from another agency then drove the mother and twins from the church to a woman's shelter.  A county social worker then allegedly provided incorrect information about the mother to officers from a third agency, who transported the mother and twins to a motel, and left them unsupervised.  The mother then drowned the twins in a bathtub.  The plaintiff sued all of the involved officers and social worker for allegedly violating his 14th amendment rights to substantive due process.  The district court dismissed the action for failure to state a claim.

The 9th Circuit majority reversed the dismissal in part.  The only two exceptions to the general rule against failure-to-act claims under section 1983 are those for special relationships and state-created danger.  There was no special relationship here, because the twins were never under the defendants' custody.  A state-created danger claim could be asserted against those defendant who created or enhanced any danger to the twins.  The panel upheld dismissal as to the first group of officers, since the facts alleged did not show they created or enhanced any danger to the twins by leaving the mother and twins with the mother’s friend.  The panel changed the dismissal to one without prejudice, since the plaintiff might be able to amend the allegations.  The majority held that the plaintiff adequately stated a claim against the officer who arranged for the mother to stay at the hotel room, transported the mother and twins from the shelter to the hotel room, and left the mother in the room with the twins.  The plaintiff adequately pleaded both danger enhancement/creation and deliberate indifference to the risk that the mother would harm the twins.  The majority also concluded the plaintiff adequately pleaded a state-created danger claim against the social worker, for allegedly providing false information about the mother to police.  By providing that information, she enhanced the danger to the twins by foreclosing the return of the twins to their father.  Following precedent, the panel found the claim for infringement on the plaintiff’s liberty interest from removal of the twins from him, and giving them to the other parent with custody of the twins, failed; it was a relatively minor infringement of the right that was insufficient to form a section 1983 claim.  The plaintiff also failed to plead a cause of action for seizure of his person based on the officers preventing him from following the twins.  They did not prevent the plaintiff from leaving his house for any other purpose.  Having found potential individual liability, the majority reversed denial of the Monell claim against the municipalities involved.

One judge dissented from the portions of the decision reversing dismissal.  The judge opined that the state-created-danger doctrine should apply only where officials abuse their power by intentionally putting a person in harm’s way.  The judge contended that the majority’s decision extended the doctrine to injuries caused by negligence and mistake.

Complaint Filed after Claim Presentation but before Claim Denial Valid if Amended before Served

In Malear v. State of California, published March 13, 2023, the First District Court of Appeal, Division 3 reversed the dismissal of a putative class action after demurrer.  The plaintiff alleged that the transfer of 194 inmates from one prison to another in May 2020 without testing or isolating inmates who displayed symptoms of COVID-19 led to an outbreak of COVID in the prison to which the inmates were transferred.  The plaintiff presented a claim for damages to the state, then filed his original complaint in superior court twelve days later, before the claim was denied.  Two days later, the state sent notice of rejection of the claim.  Three months later, before the lawsuit was served, the plaintiff filed, as of right, an amended complaint that included new allegations that the plaintiff had now complied with the claim presentation requirements. He then served the original and the amended complaint.  The amended complaint was filed and served within six months after the rejection of the claim.  The trial court sustained the state's demurrer on the ground that, by filing suit before the claim was rejected, the plaintiff failed to comply with the statutory claim requirements.

The appellate court disagreed. Government Code section 945.4 requires that a plaintiff present a claim to the public entity defendant, and be acted upon or deemed rejected by operation of law, before the plaintiff can sue for money or damages on a cause of action that requires a claim.  Here, the plaintiff filed his initial suit in violation of that statute.  But a plaintiff may amend its pleading once without leave of court at any time before the answer, demurrer, or motion to strike is filed.  The amended complaint supersedes all prior complaints.  The plaintiff filed an amended complaint after the claim denial, which superseded his original complaint.  He therefore demonstrated substantial compliance with the claim presentation requirement.  The court cited other cases permitting premature complaints to substantially comply with section 945.4.  It rejected the argument that the California Supreme Court has rejected the substantial compliance rule by applying strict compliance with the statute regarding claim recipients.  The statutory objectives of section 945.4 have been met, since the entity would not incur any litigation expenses until after it had considered and rejected the claim.  The court emphasized that its holding was narrow.

Plaintiff Suing Public Entity for Medical Malpractice Must Meet Both the Statutes of Limitations in the Government Claims Act and the One-Year Statute of Limitations under MICRA

In Carillo v. County of Santa Clara, published March 13, 2023, the Second District Court of Appeal, Division 4 affirmed dismissal of a medical malpractice suit after demurrer was sustained.  The plaintiff alleged that in December 17, 2017, when he was in the custody of the defendant county’s department of corrections, his right foot was amputated due to purported mistreatment of a blister.  He alleged that he first suspected wrongdoing in April 2018.  He presented a claim to the county in June 2018.  It was rejected July 19, 2019.  He filed his lawsuit on January 18, 2019, one day shy of six months after the rejection.  The county demurred, arguing that the one-year statute of limitations for medical malpractice actions under Code of Civil Procedure section 340.5 applied; and that there was no question a reasonable person having his foot amputated under these circumstances would necessarily be on notice something was wrong.  It contended that the plaintiff had to meet both the section 340.5 statute of limitations and the statute of limitations under Government Code section 945.6, requiring that suit be filed within six months after claim denial.  Relying on Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, the trial court sustained the demurrer, holding that the Government Claims Act’s filing deadlines and limitations periods do not supplant the Code of Civil Procedure section 340.5 limitations periods for malpractice actions against public entity health care providers.  The court further held that the cause of action accrued at the time of the amputation, holding the complaint allegations established the plaintiff suspected wrongdoing at that time.  On appeal, the plaintiff argued that the trial court misread Roberts.

The appellate court disagreed with the plaintiff.  Roberts held that the statute of limitations barring suit more than three years after injury was the outer limit by which a lawsuit must be filed against a public health care provider.  The Roberts court had no need to consider or decide whether MICRA’s one-year statute of limitations applied to public entity defendants.  Roberts also states that for claims against a public entity where both MICRA and section 945.6 apply, the goal is to harmonize the law and avoid interpretations that ignore one statute.  Interpreting Roberts as plaintiff urges would require ignoring MICRA’s one-year limitation.  The plaintiff was required to meet the deadlines set forth in both statutes.  The trial court also properly ruled that based on the plaintiff’s allegations there was no delayed discovery.  Although the plaintiff alleged later discovery, he failed to plead specific facts to show he could not have earlier made this discovery, even with reasonable diligence.  The appellate court also agreed with the trial court that a reasonable person would have been on notice when his foot was amputated that something was wrong, and would have acted diligently to discover the cause of his injury at that time.

Note:  This case's holding conflicts with the holding in Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1202, that the six-month statute of limitations in the Government Claims Act controls over the one-year statute of limitations in MICRA.

Municipality Did Not Violate Parent's Liberty Interests by Allegedly Maintaining Lawless Area That Resulted in Death of Adult Son

In Sinclair v. City of Seattle, published March 1, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a suit under 42 U.S.C. section 1983.  During the George Floyd protests of 2020, the mayor and police department of the defendant city surrendered a police precinct and a large area of the surrounding neighborhood to protesters for a month.  The protesters declared it the Capitol Hill Occupied Protest, or CHOP, zone.  The mayor labeled CHOP a "block party" and a "summer of love."  A councilmember publicly described CHOP as a "peaceful" occupation.  Allegedly, violence, vandalism, open drug use, and other crimes proliferated in the area.  The city allegedly provided the protesters with portable toilets, lighting, and other support, including modifying emergency response protocols of the police and fire department.  The plaintiff's 19-year-old son, who had special needs, visited CHOP and encountered a man with whom he had a history of antagonism.  The man allegedly believed CHOP to be a "no-cop" zone.  He was carrying a gun.  He shot the plaintiff's son.  CHOP participants carried the wounded son to a medical tent they had erected.  The fire department had an ambulance stationed a block and a half from that location.  A man implored the paramedics to help the son.  The paramedics were apparently waiting for a green light from police.  The police were allegedly confused about the paramedics' location.  The miscommunication caused a response delay of around 20 minutes before first responders arrived to treat the son.  By the time they responded, CHOP participants had transported the son to a hospital, where he passed away.  The plaintiff alleged the city violated her 14th Amendment due process rights to the companionship of her adult son.  She alleged that the city's acts and omissions regarding CHOP created a foreseeable danger for her son and that the city was deliberately indifferent to the danger.  The district court dismissed the action for failure to state a claim.

The appellate court agreed that the plaintiff had failed to state a claim.  The court initially expressed doubt on whether a parent had a liberty interest in the companionship of an adult child.  But because 9th Circuit cases had recognized the existence of such an interest, without analyzing the question, the panel believed itself bound by the precedent.  The court therefore addressed the merits of the allegations. The plaintiff alleged the city violated her rights by violating the son's right to be free of state-created danger.  The court ruled that the complaint's allegations supported the strong inference that the city acted with deliberate indifference toward the dangers of permitting and encouraging establishment of the CHOP zone.  But the city's alleged response after the son's shooting do not show deliberate indifference.  The paramedics attempted to provide care.  The city did not prevent them from doing so.  Instead, the delay in care resulted from a miscommunication.  Further, while the allegations support a conclusion that the city created an actual danger, they do not support the danger particularized to the plaintiff that the state-created-danger claim requires.  Any danger the city created affected all CHOP visitors equally.  The danger was not specifically directed at the plaintiff or her son.  The section 1983 claim therefore fails.

One judge wrote a separate concurrence urging that the issue of whether a parent has a liberty interest in the companionship of an adult child be reviewed en banc.

City Can Be Held Liable under California Coastal Act for Failing to Prevent Local Surfers from Harassing Outsiders

In Spencer v. City of Palos Verdes Estates, published February 27, 2023, the Second District Court of Appeal, Division 5 reversed an order granting judgment on the pleadings for the defendant city.  The complaint alleged that a group of local surfers kept outsiders from accessing a premier surfing spot by threats, intimidation and violence.  The complaint further alleged that the city allowed the group to build a masonry and wood structure on city property and use it as their "hangout"; and by allegedly being complicit in the group's activity and tacitly approving it.  The complaint alleged that the city was liable for conspiracy to deny access under the California Coastal Act, Public Resources Code section 30000 et seq.  The trial court concluded that merely allowing the structure to be built on city property was not actionable against the city, absent allegations the city itself performed the construction; and that neither the harassment nor the city's alleged condoning of the harassment is conduct reached by the Act.

The appellate court disagreed.  The Act, as interpreted by case law decided while this case was on appeal, establishes that a landowner, such as the city, that has the ability to remove a structure may violate the Act by allowing an unpermitted structure to be maintained on its property--here, for decades.  Further, while the trial court concluded that the alleged harassment by the group was not "development" under the Act, the appellate court deemed this interpretation of "development" too narrow.  The Act's definition of "development" in Public Resources Code section 30106 includes, on land, change in the intensity of use of water, or of access thereto.  Case law has applied the term "development" as used in the Act as applying to more than constructing physical impediments, including landowners hiring security guards to keep persons from accessing the coast.  Setting up headquarters on city property, physically obstructing trail access to the beach, and intimidating outsiders with word and deed, all with the effect of blocking access to the water, is "development" under the Act.  Finally, the city can be held liable for conspiracy with the group.  Parties can be held liable for Coastal Act violations under the doctrine of conspiracy.  Allegations that many city residents and the city council do not want outsiders in the city; that at least one city official stated that residents want to keep outsiders away; that the group has been blocking access to the coast for decades; that the city was aware of the conduct and was complicit in it; that the former police chief agreed to look into the situation, and then "backed off"; that the city did not enforce its laws against the group; and that the city instead acted to exclude outsiders from the beach by targeting them with traffic citations, parking tickets, and towing, adequately pleaded a cause of action for conspiracy.  

Under Privette Doctrine, Public Entity Owner of Roadway Was Not Liable for Alleged Dangerous Condition of Property That Resulted in Subcontractor's Employee's Death

In Marin v. Department of Transportation, ordered published February 23, 2023, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant department.  The department subcontracted to a company construction work on the department's highway.  The contract expressly delegated matters of safety at the project to the subcontractor.  The contract also provided that the department's residential engineer at the project site was authorized to make the final decision on questions concerning the contract, including as to work quality and acceptability and the manner of the performance at work.  One night, the department, at the subcontractor's request, closed two lanes of the highway. The contractor marked the closure by using traffic signs and an arrow board, a cone pattern with reflective tape, multiple signs, and construction and street lights.  Several department employees were on site.  While an employee of the subcontractor was on the site working, a car operated by a drunk driver entered the closed lanes of the project site, and struck and killed the employee.  The employee's survivors sued the DOT for vicarious liability for the alleged negligence of its employees, and for maintaining a dangerous condition of public property.  The department moved for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 because the department properly delegated workplace safety to the subcontractor.  The plaintiffs contended that triable issues of fact existed on whether the department retained control over the construction project.  The trial court granted summary judgment.

The appellate court agreed that the Privette doctrine barred liability.  Under the doctrine, when the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to worker's compensation coverage, the doctrine of peculiar risk does not permit the employee to seek recovery of tort damages from the principal if the principal did not cause the injuries.  The doctrine does not apply if the hirer of the contractor retains control of the site, and the exercise of retained control affirmatively contributed to the injuries.  If the injury takes place after delegation of safety to the contractor takes place, the court presumes the contractor alone was responsible for any failure to take precautions.  To rebut the presumption, the hirer must induce--not just fail to prevent--the contractor's injury-causing conduct, or the hirer's retained control must contribute to the injury independent of any contribution by the contractor.  Here, the contract expressly delegating control to the contractor established the Privette presumption applied, shifting the burden to the plaintiff to raise a triable issue of fact.  The portion of the contract giving the department final decision on questions concerning the contract did not raise a triable issue on whether retained control affirmatively contributed to the employee's death.  Undisputed evidence established that the department did not direct or order the means and methods the subcontractor used to provide worker safety, did not have responsibility for setting up barriers, cones, or signs, and did not prevent the subcontractor from complying with its obligation to provide a safe work site.  Evidence that the department could have authorized further safety measures, and expected the subcontractor's employees to learn and follow department safety policies, at most shows that the department passively permitted an unsafe condition.  That is not affirmative contribution to the injuries.

Statute of Limitations under POBRA Starts Running upon Discovery of an Act of Misconduct, Even if Discovered During Investigation of Other Misconduct

In Garcia v. State Department of Developmental Services et al., ordered published February 21, 2023, the Third District Court of Appeal affirmed judgment in favor of the defendant department.  In May 2018, the plaintiff police sergeant was suspected to have manipulated overtime rules by reassigning officers from critical positions to cover positions his superior had instructed him not to assign officers to cover, and then assigning himself to cover those officers' critical positions.  An investigatory entity investigated the allegations.  The investigation took place between June 2018 and February 2019.  During the investigation, the entity discovered that the sergeant had committed various acts of misconduct unrelated to the alleged overtime manipulation.  In April 2019, the defendant department issued a notice of adverse action stating the plaintiff would be terminated effective May 2019.  The notice was based on both the overtime allegations and other misconduct.  After the plaintiff was terminated and appealed, the department withdrew its adverse action and retroactively reinstated the officer in September 2019.  Three weeks later, still in September 2019, the department issued a second notice of adverse action to the plaintiff, demoting him from sergeant to officer effective October 2019.  The adverse action was based on the overtime allegations and other misconduct.  The officer filed an administrative appeal, arguing that under Government Code section 3304(d)(1), part of the Public Safety Officers Procedural Bill of Rights, the adverse action was time-barred.  Under section 3304(d)(1), a public agency cannot discipline an officer “for any act, omission, or other allegation of misconduct” unless the agency completes its investigation and notifies the officer of its proposed discipline “within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”   An administrative hearing determined that the overtime misconduct allegations were time-barred, but that the allegations of misconduct unrelated to scheduling manipulations were also time-barred.  It upheld the demotion.  The plaintiff challenged the result by petition to the superior court for writ of mandate.  The superior court upheld the department's decision.

The appellate court agreed. The plaintiff argued that the one-year statute of limitations under section 3304(d)(1) started running as to all alleged acts of misconduct in May 2018, when the alleged scheduling misconduct was discovered.  The appellate court rejected that interpretation of the statute.  Based on the statutory language and other case law interpreting the statute, the court concluded that the statute of limitation as to each act of alleged misconduct began running upon discovery of that misconduct--even if other misconduct had been discovered earlier, and even if the misconduct is discovered while investigating the earlier misconduct.

No-Contest Plea Held in Abeyance and Dismissed Does Not Bar Suit under Heck v. Humphrey

In Duarte v. City of Stockton, published February 16, 2023, the 9th Circuit Court of Appeals reversed dismissal of the plaintiff's 42 U.S.C. section 1983 suit.  The plaintiff was involved in an encounter with city police officers in which force was used upon the plaintiff.  The plaintiff pleaded no contest to a charge under Penal Code section 148 for willfully resisting, obstructing,
and delaying a peace officer.  The court accepted the plea and ordered it held in abeyance.  The conditions from the plea form required the plaintiff to complete ten hours of community service and obey all laws.  Six months later, after another hearing, the judge dismissed the case, on the prosecutor's motion and "in the interests of justice."  The plaintiff sued for alleged excessive use of force and false arrest.  The district court concluded that the suit was barred by the plaintiff's guilty plea, under Heck v. Humphrey (1994) 512 U.S. 477.  It further concluded that the city and police department wre not "persons" subject to suit under section 1983.

The appellate court disagreed with both propositions.  Heck requires a conviction and subsequent sentence. Here, there was no conviction or sentence. The plaintiff was never found or proved guilty.  Although he pleaded no contest, a plea is not a conviction.  There is no conviction without a subsequent order from the court. Here, the plea was held in abeyance, and then the case was dismissed.  A dismissal is the opposite of a conviction.  Further, both municipalities and their police departments are entities subject to Monell liability under section 1983.

Immunity for Injury Caused by Prisoner Applies to FEHA Cause of Action

In Bitner v. Department of Corrections and Rehabilitation, ordered published January 26, 2023, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant department.  The plaintiffs were employed by the department as vocational nurses.  They alleged that while they were assigned to one-on-one suicide monitoring, they were subjected to acts of sexual harassment by inmates, and that the department failed to remedy the situation, in violation of the Fair Employment and Housing Act.  The trial court granted the department summary judgment under Government Code section 844.6, which immunizes public entities for injuries proximately caused by any prisoner.

The appellate court agreed that section 844.6 immunized the department.  It rejected the plaintiffs' arguments that section 844.6 did not apply to liability under FEHA.  Section 844.6 sets forth a list of statutory exceptions to the immunity, and FEHA is not included in that list.  When faced with conflicting statutes providing for governmental immunity and liability, the statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent.  The court further rejected the argument that FEHA is an exemption to section 844.6 because FEHA creates a "direct" duty.  Since all public entity liability is statutory, interpreting section 844.6 not to apply to any statute creating a "direct" duty would interpret the immunity out of existence.  Plaintiffs argued that the immunity did not apply because their injury was caused not only by the prisoner's acts, but also the department's acts in breaching its duty.  The court rejected this argument as well, both because the plaintiffs forfeited it by not arguing it in the trial court or properly setting it forth in their opening brief, but also on the merits.  Where the undisputed material facts show that the alleged injury was proximately caused by a prisoner, it is not enough for a plaintiff to simply present evidence that additional, concurrent causes may have also contributed to the same injury.