Government Liability Update

Social Workers Not Entitled to Qualified Immunity for Judicial Deception, but Employing County Not Liable for Minor Medical Examinations in Violation of Policy

In Benevidez v. County of San Diego, published April 12, 2021, the 9th Circuit affirmed in part and reversed in part a district court's dismissal of an action against social workers and their county employer.  The complaint alleged that the defendant social workers obtained a protective custody warrant and removed the minors from their home.  A juvenile court held a detention hearing to remove the minors and issued an order allowing medical examination of the minors.  The parents were present at the detention hearing, but neither the defendant social workers nor any county employees discussed the medical examinations with the parents before or after the hearings.  There were no discussions of medical examinations at the hearings.  No county employee sought the parents' consent to the examinations, or advised them of their right to be present  at the examinations.  These alleged actions contravened a 2015 county policy requiring employees to obtain parental consent and advise parents of their right to be present.  The minors were then examined under the court orders.  The parents were not informed until after the examinations took place.  The parents appealed the juvenile court's removal decisions but not the medical examinations or related orders.  The parents then filed suit in federal court.  The federal court dismissed the second amended complaint.

The 9th Circuit affirmed the district court's decision that the Rooker-Feldman doctrine did not deprive the federal court of jurisdiction.  The doctrine prevents federal lawsuits that challenge a state court's judicial actions, and thus act as de facto appeals from the state court action.  The doctrine does not apply where a plaintiff alleges that court orders were obtained through extrinsic fraud.  Here, the plaintiffs adequately pleaded that the examination orders were obtained without their knowledge, and that the requests falsely represented that reasonable efforts had been made to notify the parents about the medical examinations.  The parents' lack of appeal of the juvenile court decision on the medical examinations did not affect the doctrine, since an appeal would not have remedied the damage done by the examinations having taken place.  The district court erred by granting the social workers qualified immunity, because regardless of whether liability for performing the examination was settled or not, the law barring judicial deception in regard to child custody proceedings was sufficiently established to give the defendants fair notice that what they were allegedly doing violated the parents' Fourteenth Amendment right to familial association.  The district court properly dismissed the Monell allegations of county liability.  Because the social workers' conduct allegedly violated the county's policy, the policy itself could not have caused the injury.  And a single incident in a non-life-threatening situation was insufficient to support liability for failure to train.

Verdict in Federal Lawsuit that Police Strip Search Was Reasonable Bars Negligence Liability for Strip Search

In Shuler v. City of Los Angeles, published April 5, 2021, the Second District Court of Appeal, Division 8 affirmed judgment on the pleadings for the defendant city.  Police officers stopped the plaintiff's car and detained her during a narcotics investigation.  They arrested her passenger on suspicion of drug dealing.  The officers took the plaintiff and her car to a police station.  An officer strip searched the plaintiff, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges.  The plaintiff sued the city and officers in federal court.  She alleged violation of 42 U.S.C. section 1983, and state law claims including negligence.  The court bifurcated the claims and tried the section 1983 claims to a jury.  The jury found that the officers had arrested and strip searched the plaintiff, but that the arrest and search were reasonable and did not violate her Fourth Amendment rights.  The federal court then declined to exercise supplemental jurisdiction over the plaintiff's state law claims and dismissed them without prejudice.  The plaintiff then filed suit in state court asserting her state law claims.  The state court granted judgment on the pleadings on the ground that the verdict in the federal case barred the state law claims.

The appellate court agreed. Collateral estoppel applied.  The only element of collateral estoppel that the plaintiff disputed was whether the issues in the two proceedings were identical.  Hernandez v. City of Pomona (2009) 46 Cal.4th 501 held that a federal verdict that a police use of lethal force was reasonable under the Fourth Amendment barred a negligence action under California law for the same use of force.  Although this case involves a strip search instead of use of lethal force, the result is the same.  The plaintiff contended that because the federal jury was instructed it had to find the search was intentional to find liability, the verdict did not preclude a negligence claim.  But the intentional instruction did not relate to the issue of reasonableness.  It only required that the jury find the officers intentional strip-searched the plaintiff, rather than accidentally.  Whether the officers intentionally strip-searched her is not in dispute in the state court case.  The dispute is over the reasonableness of the strip search.  Since the federal jury found the search reasonable, and the reasonableness element is the same under state and federal law, the verdict that the search was reasonable bars the action.

District Court May Bar Prisoner Plaintiff's Crucial Expert Evidence for Failure to Timely Comply with Expert Discovery

In Merchant v. Corizon Health, published April 2, 2021, the 9th Circuit Court of Appeals affirmed a district court's exclusion of expert evidence and summary judgment in favor of prison officials.  The plaintiff, a prisoner, alleged that the state department of corrections and its medical provider were deliberately indifferent to his medical needs and were negligent.  After obtaining a continuance of expert disclosure to accommodate his attorney's vacation, the plaintiff disclosed his only non-retained expert two days late; disclosed his expert report and non-retained experts five days late, and without the required information for the non-retained experts; disclosed more non-retained experts 61 days past the deadline; disclosed three rebuttal experts but produced the report for only one, and the report for another five days past the deadline; and disclosed a late affidavit from a non-retained expert.  The district court granted the provider's motion in limine to exclude the plaintiff's expert witnesses under Federal Rules of Civil Procedure 37(c)(1).  The district court excluded all expert witnesses except the single rebuttal expert whose report was disclosed timely.  The court then granted summary judgment on the ground that the plaintiff had insufficient expert evidence to establish either deliberate indifference or negligence.  It also ruled that the Prison Litigation Reform Act barred the plaintiff's 42 U.S.C. § 1983 claim because the plaintiff failed to exhaust his administrative remedies.

The 9th Circuit agreed that in light of the plaintiff's persistent disregard of Rule 26(a)(2)'s disclosure deadlines through the course of discovery, the district court acted within its discretion in excluding his improperly disclosed expert evidence.  The party facing that sanction bears the burden of showing that the discovery violation is either substantially justified or harmless, and whether a lesser sanction would be appropriate.  Where the violating party fails to move for a lesser sanction, district courts need not consider lesser sanctions.  The plaintiff did not do so.  The defendants also established that the plaintiff did not exhaust the administrative remedies he was required to exhaust.

Laches Barred Brown Act Claim Where Petitioners Challenged First Step in Dissolution Process, then Waited until after Special Election to Pursue Challenge

In Julian Volunteer Fire Company Association v. Julian-Cuyamaca Fire Protection District (County of San Diego), published March 30, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment against the petitioner association in a Brown Act lawsuit.  The association provided fire prevention and emergency services through a local fire district.  The district voted to seek to dissolve and be replaced by the county fire authority.  This triggered a mandatory review process by the Local Agency Formation Commission.  Two weeks after the district's board approved the dissolution resolution, the association sued the district, alleging the resolution approval violated the Brown Act.  The association sought a writ of mandate ordering the district to vacate the resolution.  While the lawsuit was pending, the county and commission processed the resolution, including holding public hearings and triggering a special election.  The district initially opposed the association's lawsuit.  But after a board membership change, the board disagreed with the earlier dissolution resolution.  It therefore no longer contested the lawsuit.  The association waited to prosecute its lawsuit until after the special election results in favor of dissolution.  The association then moved ex parte to enter judgment on the Brown Act claims.  The district told the court it did not oppose the motion.  The court entered judgment for the association and issued the writ.  The association, relying on this judgment, then filed suit seeking to preclude the commission from certifying the election result favoring dissolution.  The county and commission then intervened in the Brown Act lawsuit as necessary or indispensable parties.  They successfully moved to vacate the judgment and writ.  The trial court stated it was not previously aware of these parties' direct interests in the litigation.  The court then granted the intervenors judgment on the pleadings on a number of grounds, including laches.

The court of appeal agreed that laches barred the lawsuit.  Laches requires the defendant to show unreasonable delay and either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.  Even if a plaintiff timely files a complaint, laches can bar relief if the plaintiff unreasonably delays in bringing the litigation to completion.  Here, the association did not seek a ruling on the merits for about one year, while the dissolution process proceeded.  The association then rushed to the courthouse, without opposition from the sole opposing party, and obtained a judgment it sought to use against the interested entities.  Nothing in the record shows justification for the delay; and the association could have obtained a ruling on its claims much earlier had it sought to do so.  The association's deliberate decision to wait and see whether the special election or other proceedings would have mooted the Brown Act claim underscores the unreasonableness of the association's actions.  An action to rescind a public agency’s resolution for violating the Brown Act is subject to an unusually short limitations period because it is vital that the validity of an agency’s actions be resolved expeditiously.  A party cannot justify waiting to resolve Brown Act allegations pertaining to an initial agency decision merely because other avenues exist for achieving similar results.  The prejudice is obvious from the record:  the association caused the county and commission to incur substantial costs to comply with the statutorily required proceedings while it waited to challenge the initiating decision.

Using Force against a Suspect to Stop the Suspect Is a Fourth-Amendment Seizure, even if the Suspect Evades Capture

In Torres v. Madrid, published March 25, 2021, the U.S. Supreme Court, 5-8 (with Justice Barrett taking no part in the decision), reversed a Court of Appeals ruling that a suspect's continued flight after being shot by police negates a Fourth Amendment excessive-force claim.  Officers executing a warrant at an apartment complex approached the plaintiff as she got into the driver's seat of her vehicle.  The plaintiff believed the officers were carjackers.  She hit the gas to escape.  The officers fired their pistols at her to stop her, hitting her twice.  She drove to a nearby parking lot, and stole a car to escape.  She was eventually arrested after she sought medical help.  She sued the officers under 42 U.S.C. § 1983 for use of excessive force.  She contended the shooting was an unreasonable seizure under the Fourth Amendment.  The district court granted the officers summary judgment, on the ground that the plaintiff was not seized under the Fourth Amendment.  The 10th Circuit affirmed.

The Supreme Court majority disagreed.  Reviewing common law (particularly debtor arrest law), the majority concluded that police touching of a person with the intent to arrest is an arrest, and thus a seizure under the Fourth Amendment, even if the person escapes.  The analysis does not change because the officers used force from a distance--firearms--to restrain the plaintiff.  What is required is corporal seizing or touching the defendant's body.  That can be accomplished by a bullet as by the tip of a finger.  The use of force standing alone is not a seizure, it must be accompanied by the intent to restrain, as opposed to force applied by accident or for some other purpose.  Because the officer's subjective intent and the suspect's subjective perception are not factors in the use of force analysis, the proper inquiry is whether the conduct objectively manifests an intent to restrain.  The seizure by force lasts only as long as the force is applied, unless the subject submits.  The majority rejected intentional acquisition of physical control of the suspect as the test.  In this case, the officers seized the plaintiff by shooting her with the intent to restrain her movement.

Three justices dissented.  They held that seizure of a suspect requires actual possession of the suspect.

Because Permitting Football Coach's Onfield Prayers, under the Circumstances, Would Violate the Establishment Clause, School District Did Not Violate His Rights by Firing Him

In Kennedy v. Bremerton School District, published March 18, 2021, the 9th Circuit Court of Appeals affirmed a district court's grant of summary judgment to the defendant school district.  The plaintiff, assistant coach' to a district high school's varsity football team and head coach to its junior varsity team, had religious beliefs that required him to pray on the field immediately after the game.  Over time, students joined him; at least one felt compelled to participate to avoid having his playing time reduced.  The district informed the plaintiff of its policy concerning religious related activities, which required that school staff neither encourage nor discourage student prayer.  The plaintiff initially complied by giving secular motivational talks.  He then informed the district that he would resume praying on the fifty-yard line immediately after the conclusion of the game.  The plaintiff and his representatives appeared and announced on media what he would do.  At the game, the plaintiff prayed audibly, and a stampede of persons from the audience joined him.  The plaintiff then made numerous media appearances to spread the word of what had happened.  The district offered to allow the plaintiff to pray in a private location, or to pray on the field after the stands emptied.  The plaintiff maintained that he would continue.  The district placed the plaintiff on administrative leave. After they did so, members of the staff felt repercussions from the public because of the attention given to the plaintiff's acts.  At the end of his annual contact, the district recommended the plaintiff not be rehired.  The plaintiff alleged that his rights under the First Amendment and Title VII were violated.

The 9th Circuit first analyzed the plaintiff's free speech claim.  It determined, under the Pickering test, that he had spoken as a public employee, since his job involved communicating on the field.  Further, even if the plaintiff had spoken as a private citizen, the district's treatment of him differently from other members of the public was adequately justified.  An objective observer, familiar with the history of the plaintiff's on-field religious activity coupled with his efforts to generate publicity to gain approval of those activities, would view the district's allowance of that activity as stamped with the district's approval.  Because an objective observer would view that as an endorsement of the plaintiff's faith, the district's interest in avoiding an Establishment Clause violation justified its narrowly-tailored conduct in response, including offering the plaintiff an accommodation process the plaintiff declined to cooperate with.  As to the plaintiff's Title VII claims, the plaintiff failed to establish a prima facie claim of religious discrimination, because similarly-situated employees outside his protected class were not treated more favorably.  While the plaintiff established a prima facie claim for failure to accommodate religious beliefs, the district carried its burden of showing an attempt to accommodate the plaintiff.

Public Entity Owes No Duty under Government Code section 835 to Person Not on or Using Property or Adjacent Property; Public Health Immunity Applies to Failure to Control Disease on Public Property

In City of Los Angeles v. Superior Court (Wong), published March 18, 2021, the Second District Court of Appeal, Division 4 issued a writ directing the trial court to sustain the petitioner city's demurrer to the real party's lawsuit.  The real party plaintiff alleged that her husband, a city police officer, contracted typhus from unsanitary conditions in and around the police station where he worked, and that the plaintiff then contracted typhus from her husband.  She sued the city under Government Code section 835 for maintaining a dangerous condition of public property.  The city demurred on the ground that it owed no duty to the plaintiff, because she did not have contact with the allegedly dangerous property, and because it was immune under Government Code section 855.4 for its decisions to perform or not to perform acts to promote public health of the community by preventing disease or controlling communication of disease.  The trial court rejected both arguments.

The appellate court ruled that the city did not owe the plaintiff a duty under section 835.  Although section 835 imposes a duty on public entities not to maintain property in a dangerous condition, it does not expressly state to whom the duty is owed.  The plaintiff contended that causation was sufficient to establish that the city owed a duty to her, even if she did not have contact with the property.  But no case finds liability under section 835 where the plaintiff has had no physical contact with the dangerous condition on the subject property or any adjacent property.  The trial court analogized to case law that a private landowner can be liable when a person takes home asbestos fibers, and the exposure to the fibers causes another person to become ill.  But that law concerns private landowners.  Section 835 liability is not coextensive with private liability.  Further, the plaintiff did not allege the husband brought home fleas or other infection vectors from the public property; she alleges she contracted the disease from her husband.  The city therefore owed no duty to the plaintiff, and the demurrer should have been sustained on that ground.

Further, even if the city owed a duty, it was immune under section 855.4.  Keeping city property free from disease-causing conditions is a discretionary discretion subject to the immunity.  The plaintiff had the duty to plead with particularity facts showing the city's actions did not fall within the immunity.  She did not do so.  She did not allege a nondiscretionary mandatory duty the city failed to comply with.  Although the immunity does not apply to failure to carry out decisions with due care, the plaintiff did not allege facts in her complaint that the city carried out any particular act or omission without due care.  Instead, she alleged the decision not to abate the dangerous condition of the property caused the injury.

Suit against City for Releasing Police Officer Records without Prior Notice to Officer Was Subject to Anti-SLAPP; because Law Required Production, the Plaintiff's Claims Were Unlikely to Succeed

In Collondrez v. City of Rio Vista, published March 16, 2021, the First District Court of Appeal, Division 3 affirmed in part and reversed in part a trial court's ruling on an anti-SLAPP special motion to strike.  When the plaintiff was a police officer, he received a notice of intent to impose discipline for allegedly falsifying a police report concerning an arrest and use of force.  The officer pursued his Skelly rights and administrative appeal, but settled before the appeal was arbitrated.  A provision of the settlement agreement required the city to give the plaintiff prior notice before releasing disciplinary notices and reports concerning him. When Penal Code section 832.7, requiring disclosure of police personnel records pertaining to sustained findings of dishonesty or making false reports, went into effect, the city received media requests under the California Public Records Act and section 832.7 for the plaintiff's records.  The city released them, giving the plaintiff notice before some but not all of the releases.  Due to media coverage, the plaintiff's then-current employer fired him.  The plaintiff sued the city for breach of contract, invasion of privacy, interference with prospective economic advantage, and intentional infliction of emotional distress.  The trial court denied the city’s anti-SLAPP suit as to the breach of contract and privacy counts, and granted it as to the other counts.  It found the entire action arose from acts in furtherance of free speech and in connection with an issue of public concern, but found the plaintiff made a showing he would likely prevail on the breach of contract and privacy counts.

The appellate court agreed that the action arose out of conduct protected by the anti-SLAPP statute.  The focus is the defendant’s activity giving rise to the statute.  Here, the activity is release of the plaintiff’s personnel information to media outlets.  That is the activity that gave rise to the plaintiff’s alleged harm.  The addition of breach of contract causes of action does not change the gravamen of the suit.  Providing information to news outlets involves a matter of public interest.  The court rejected the plaintiff’s argument that anti-SLAPP did not appear because the city had a nondiscretionary duty to comply with the CPRA.  The CPRA requires agencies to make determinations whether the requested records are subject to or exempt from disclosure, and whether public interest in nondisclosure outweighs that served by disclosure.  That determination is not immune from the chilling effect of potential litigation anti-SLAPP is designed to prevent. 

The appellate court disagreed with the trial court’s determination that the plaintiff was likely to prevail on the breach of contract and invasion of privacy claims.  The court concluded the disclosure was required by Penal Code section 832.7(b)(1)(C).  The plaintiff contended that the statute required a “sustained finding” of dishonesty, which requires completion of the administrative appeal process.  The appellate court concluded that the “sustained finding” language includes an agency finding that remains in place because the plaintiff settles the case before his administrative appeal is heard.  The appellate court further rejected the plaintiff’s argument that the agency failed to properly redact information in the produced files as required by statute.

Using "Police Lead" Position on Passively Resisting Suspect Violates Clearly-Established Law

In Rice v. Morehouse, published March 8, 2021, the 9th Circuit reversed partial summary judgment granted to police officer defendants in a police use of force case.  An officer made a traffic stop of plaintiff for changing lanes without signaling for five seconds first. The plaintiff showed the officer his license on command, but refused to show registration and proof of insurance.  The officer called in a "Code 3 assist," which is the most urgent request for backup officers.  The plaintiff refused the officer's orders to exit the car.  The officer called in an update downgrading the backup assist.  The arriving officers were not on the frequency and did not receive that call.  Officers including the defendants arrived.  The initial officer told the backup officers that the plaintiff was not complying with her instructions, she she just needed somebody to help her get the plaintiff out of the car.  The plaintiff continued to refuse to exit the car, but did roll down his window and unlock the car.  The defendant officers pulled the plaintiff out of the car.  The plaintiff asserts he did not resist.  After they removed the plaintiff, the defendant officers attempted to hold the plaintiff in a "police lead" position, gripping both his arms, tripping him, and throwing him to the ground face-first as a "takedown" maneuver.  Officers repeatedly struck and kneed the plaintiff on the ground.  The district court granted the defendant officers who participated in the takedown summary judgment for the takedown, based on qualified immunity.  The rest of the case against the defendant officers for the scrum after the takedown proceeded to trial, at which the defendants prevailed.  The plaintiff appealed.

The 9th Circuit first ruled that the plaintiff's appeal from the final judgment would be interpreted to permit appeal from the partial summary judgment in favor of the officer defendants, particularly given the centrality of the issue in the district court and the appellate briefs.  The court determined that, resolving material issues of fact in the plaintiff's favor, a reasonable jury could find that the officers used unreasonable force.  The plaintiff's passive resistance did not present an emergency, the purported traffic offense was minor, a jury could find that the officers could not have reasonably believed the plaintiff had committed a serious crime and that he did not present an immediate threat to the officers or others, and that the plaintiff was not actively resisting arrest but rather passively resisting arrest.  The officers also failed to consider what other tactics, if any, were available.  Officer failure to consider clear, reasonable, and less intrusive alternatives to the force used militates against finding the use of force reasonable.  The law clearly established that use of substantial force against a passively resisting person violated the Fourth Amendment.  The officers therefore were not entitled to summary judgment based on qualified immunity.

A Plaintiff Who Seeks Prospective Relief That Has Been Rendered Moot May Still Pursue Civil Rights Suit for Nominal Damages

In Uzuegbunam v. Presczewski, published March 8, 2021, the U.S. Supreme Court reversed a circuit court decision that a plaintiff could not maintain standing in a lawsuit alleging violation of the right to free speech.  A student of a public university was told that even though he had a permit to speak in a designated speaking area on campus, he had to stop speaking because his speech was drawing complaints.  He and another student, who was discouraged from speaking, brought suit for injunctive relief and nominal damages based on alleged violation of their First Amendment rights.  In response to the suit, the university changed its policy.  The university then argued the suit was moot.  The students agreed the injunctive relief was moot, but argued that the nominal damages claim conferred standing.  The circuit court stated a claim for nominal damages may save a suit for compensatory damages from mootness, but not a suit that never sought compensatory damages.

The Supreme Court majority disagreed.  Standing requires an injury in fact, fairly traceable to the challenged conduct, and a remedy that is likely to redress the injury.  The third element is the issue here:  Whether nominal damages can redress the injury.  Examining common law, the court determined that every legal injury causes damage, so that nominal damages are awardable absent evidence of other (compensatory, statutory, or punitive) damages, including where there was no apparent continuing or threatening injury for nominal damages to redress.  Therefore, a request for nominal damages satisfies the redressability element of standing where a plaintiff's claim is based on a completed violation of a legal right.

The Chief Justice dissented, and opined that redressability required more than a dollar at stake.  Both the Chief Justice and a concurring justice also opined that where only nominal damages are at stake, a defendant should be able to end the lawsuit by paying the nominal damages.