Government Liability Update

College Professor Did Not Violate Clearly-Established Establishment Clause or Free Exercise Rights by Teaching Course Allegedly Critical of a Religion

In Sabra v. Maricopa County Community College District, published August 10, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit.  The defendant professor at the defendant community college district taught a course on world politics.  One module of that course was on Islamic terrorism.  The plaintiff student took the course. The student alleged that the course included material that denigrated Islam and was misleading.  The plaintiff was a Muslim.  The course included a multiple-choice quiz that allegedly required the student to choose answers that attacked the student's faith or else be graded downward.  An organization that advocates on behalf of American Muslims joined the student as a plaintiff.  The plaintiffs alleged that the Islamic Terrorism module violated the Establishment Clause of the 1st Amendment because its primary message is the disapproval of Islam, allegedly presenting a biased and one-sided portrayal of Islam as though it were presenting fact.  The lawsuit also alleged that the quiz violated the student's rights under the Free Exercise Clause of the 1st Amendment by allegedly requiring the student to disavow his religion by selecting the correct answer choice or be penalized by answering in accordance with his beliefs.  The lawsuit named the professor in his personal and official capacities and named the district under a theory of municipal liability.  The district court concluded that the organizational plaintiff lacked standing under a theory of organizational injury.  The court further determined that the complaint did not state violations of the student's 1st Amendment rights, and that the professor was entitled to qualified immunity.

The appellate court ruled that the organizational client had established standing, by alleging that the district's and professors' acts required it to divert its resources to create a campaign correcting the allegedly Islamophobic information in the course materials.  The panel majority concluded that the plaintiffs had abandoned their municipal liability claim on appeal, because the district raised the municipal liability argument in its answering brief and the plaintiffs failed to respond to it in their appellate reply brief.  Further, on the merits, the majority rejected the argument that because the professor taught the course for 24 years, the district had a longstanding practice and custom of teaching that disapproved Islam.  The complaint failed to allege facts that the challenged material was taught for a long period.  The allegation that the professor was a policymaker for the district because he was the chair of a department failed; under law, the district's board was the policymaking  body.  The complaint failed to plausibly allege a ratification theory of liability, because it did not plausibly allege that a policymaker had actual or constructive knowledge of the offending material and sanctioned its use in the classroom.  Because the plaintiffs abandoned the municipal liability claim on appeal, they were not entitled to a remand to allow them to amend their complaint.  Addressing the claims against the professor, the panel majority agreed with the district court that the professor was entitled to qualified immunity.  No case law established beyond debate that teaching material that allegedly denigrated a religion, or administering a quiz that required a student to make choices contrary to the student's beliefs, violated the Establishment or Free Exercise clauses.  Given that there were powerful arguments on both sides, the violations were not so "obvious" as to be clearly established without precedent.  The panel did not address the merits of the alleged violations.

A judge dissented, opining that the alleged conduct in giving the quiz violated the student's clearly-established Free Exercise rights.  The judge also disagreed with the appellate abandonment holding.  Another judge concurred with the majority, writing separately to respond to the dissenting judge's opinion regarding qualified immunity.  The concurring judge also opined that while 9th Circuit precedent compelled the decision on organizational standing, the 9th Circuit precedent was incorrect.

Social Media Posts of Police Officer Protected by First Amendment Despite Objectionable Content

In Hernandez v. City of Phoenix, published August 5, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part dismissal of a police officer's suit against the defendant city under 42 U.S.C. section 1983.  The city's police department adopted a social media policy for employees that prohibited employees from engaging in speech that would be detrimental to the mission and functions of the department, undermine respect or public confidence in the department, or impair working relationships in the department.  While off-duty, the plaintiff officer posted to his personal Facebook profile of news articles and memes, accessible to the public, with content that was negative to Muslims and Islam.  Over five years later, a project that maintains a database of Facebook posts from law enforcement officers across the country, published the plaintiff's posts.  This generated public criticism of the department and negative media attention.  The department investigated the posts.  The officer asserted that he posted the items to drive discussion about issues in the news at the time.  The investigation concluded that the officer had violated the department's social media policy.  Before the department decided what discipline to impose, the officer and others filed the lawsuit.  The plaintiffs contend that the department violated the 1st Amendment by retaliating against the officer for exercising his right to freedom of speech. and that portions of the social media policy are facially invalid under the 1st Amendment as vague and overbroad.  They sought damages and injunctive relief.  The district court granted an FRCP 12(b)(6) motion to dismiss the retaliation and facial overbreadth challenge.  It then granted summary judgment on the facial vagueness claim.

The 9th Circuit reversed the dismissal of the retaliation claim.  The Pickering test for whether a public employee spoke on a matter of public concern as a private citizen, rather than as an employee, applies.  The district court determined that the officer had not spoken on a matter of public concern.  That is an issue of law subject to de novo review.  The court analyzes the content, form, and context in which the statements are made.  The content here did not address internal work matters; they addressed matters of social and political concern of interest to others outside the department.  Regarding form and context, the plaintiff posted the items on his own time, outside the workplace, using his personal Facebook profile.  The intended audience was not limited to fellow employees, and the posts were open to the public.  While the posts expressed hostility toward, and sought to denigrate or mock, a major faith and its adherents, the inappropriate or controversial character of a statement is irrelevant to whether it deals with a matter of public concern.  The court remanded the claim to the district court for further development of the record.  The court emphasized that the department may not face an onerous burden to justify disciplining the officer for the posts, given the comparatively low value of his speech and the deference given to a police department's determination that an officer's speech warrants deference.  The department may permissibly consider the special status officers occupy in the community  when deciding what limitations to place on officers’ off-duty speech.  Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to
effectively carry out its mission. 

Regarding the facial challenge to the social media policy, the appellate court largely agreed with the district court.  Most of the challenged restrictions directly promote valid bases for imposing restrictions on public employee speech: prohibiting speech that undermines the employer's mission or hampers effective functioning of operations.  The challenge to the provisions prohibiting speech that would cause embarrassment to or discredit the department, however, cannot be rejected at the pleading stage.  The department does not have a legitimate interest in prohibiting speech merely on those grounds.  The same applies to the challenge to the portion of the policy that department personnel may not divulge information gained in the performance of their official duties.

 

The Unruh Act Does Not Apply to School Districts or Other Public Entities

In Brennon B. v. Superior Court (West Contra Costa Unified School Dist.), published August 4, 2022, the California Supreme Court affirmed a demurrer sustained to a cause of action against a school district for violation of the Unruh Civil Rights Act.  The plaintiff, a disabled student, alleged that the school district violated the Unruh Act by failing to protect him against sexual assault.  The trial court sustained the demurrer on the ground that the district was not a "business establishment" within the meaning of the act.  The plaintiff petitioned the lower court of appeal for writ relief.  The appellate court agreed with the trial court.

The California Supreme Court agreed as well. The Unruh Civil Rights Act, Civil Code section 51, subdivision (b) bars discrimination "in all business establishments of every kind whatsoever." The court examined the language of the Unruh Act, its legislative history, and the history of cases interpreting it, and concluded that the phrase "all business establishments of every kind whatsoever" is limited to entities acting as private business establishments.  In particular, earlier versions of the bill that became the Unruh Act stated that it applied to schools, but reflect a progressive narrowing of the legislation's applicability to "schools' before completely eliminating the reference to schools, while leaving the language concerning "business establishments" untouched.  The district was therefore not a "business establishment" when it provided educational services for the plaintiff.  The court also rejected an alternative argument that subdivision (f) of Civil Code section 51, which makes a violation of the federal Americans with Disabilities Act of 1990 actionable under the Unruh Act, expanded the Unruh Act's application to school districts.  Analyzing the language and legislative history, the court concluded that subdivision (f) means that any violation of the ADA by a business establishment is also a violation of the Unruh Act.  The court further rejected an argument that the language of Education Code section 201, subdivision (g), as amended in 1998, stating a legislative intent that the chapter of the Education Code be interpreted as consistent with the Unruh Civil Rights Act, incorporated the Unruh Act's remedies into the Education Code.  Treating the amendment as bringing public school districts within the ambit of the Unruh Act would have exceeded the stated intention behind the 1998 amendment and been in tension with the Legislature's professed goal of mitigating litigation costs for schools.

City Policy of Grinding Down Larger Displacements Does Not Prevent a 3/4" Sidewalk Displacement from Being Trivial as a Matter of Law

In Nunez v. City of Redondo Beach, partially published July 27, 2022, the Second District Court of Appeal, Division 3 affirmed summary judgment granted for the defendant city in a dangerous condition of public property lawsuit.  The plaintiff, a part-time fitness instructor, wearing running shoes, tripped one morning on a raised sidewalk slab and fell.  The height of the displacement ranged from zero to 5/8”.  The plaintiff was looking straight ahead when she fell.  She sued the city.  The city moved for summary judgment on the ground that the sidewalk panel displacement was a trivial defect.  The plaintiff argued the offset constituted a dangerous condition under the city’s policy that offsets half of an inch or greater were tripping hazards needing repair, and that aggravating circumstances existed here—the existence of shadows, with the continuity of the walking surface color, shrouded the defect, and the plaintiff was unfamiliar with the area—that substantially increased the risk that the plaintiff would fall.  The trial court concluded that the displacement was a trivial defect.

The appellate court agreed.  Under the trivial defect doctrine, the plaintiff must plead and prove, as an element of duty, that the defect is not minor, trivial, or insignificant, since a property owner’s duty of care does not include a duty to repair such defects.  A court applies a two-step analysis to determine whether a defect is trivial as a matter of law.  First, the court considers the size and nature of the defect.  If that analysis indicates the defect is trivial, the court considers whether any additional factors bear on whether the defect presented a substantial risk of injury.    Here, the city’s policy of grinding down defects of a half-inch or more did not create a triable issue on triviality.  While defects of a half-inch may pose a tripping hazard to pedestrians, the city owes only a duty to protect pedestrians from displacements that pose a substantial risk to pedestrians using due care.

In the unpublished portion of the case, the court held that, here, the size of the displacement was just under three-quarters of an inch.  Such sidewalk displacements are trivial as a matter of law absent aggravating factors.  The city contended there were no aggravating factors:  it was a sunny, dry morning; the offset between the two adjoining slabs had no jagged edges, debris did not cover the defect, the sidewalk was free of cracks, holes, loose concrete, liquid, or other defects, and the city had no record of any earlier complaints about accidents involving the offset.  The court rejected the plaintiff’s argument that the lack of color differentiation between slabs was an aggravating factor; that factor would apply to most sidewalks, and would render the trivial defect doctrine practically inapplicable to sidewalks. Further, since the plaintiff was looking straight ahead, there was no evidence that the color differentiation caused the accident.  Nor was there evidence the plaintiff’s unfamiliarity with the area contributed to the fall.  The mere fact that the plaintiff tripped despite being athletic did not raise a factual issue on triviality.  Any size defect can cause a person to trip. The court also rejected the argument that the fact the defect was in shadow at certain times of the day, in itself, was an aggravating factor. As the sun moves during the day, shadows are ubiquitous.  Further, from the photos of the defect, a fact finder could not reasonably find that the presence of shadows would decrease the visibility of the defect.

Alleged Participation in Obtaining Restraining Order without Informing Court of Custody Order, and Participation in Removing Child without Reasonable Cause and Detaining Child beyond Reasonable Period, Violates Clearly Established Law

in David v. Kaulukukui, published June 27, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer's motion to dismiss a 42 U.S.C. section 1983 lawsuit.  According to the complaint, a custody order awarded the plaintiff full custody of her daughter, denied the father visitation rights, and ordered that the father stay away and have no contact with the plaintiff.  The plaintiff and daughter lived on the Island of Hawaii, while the father lived on Kauai.  The plaintiff and child visited family on Kauai.  During the visit, the father had contact with the plaintiff and daughter over the plaintiff's protests.  The plaintiff then took the daughter to the father's workplace and demanded he apologize to the daughter.  When the plaintiff yelled at, pushed, and taunted the father, the police arrested her.  She posted bail, and she and the daughter returned to the island of Hawaii.  According to the plaintiff's complaint, after the altercation the defendant officer met with the father at the Kauai county police department.  The officer prepared and filed a petition for a protective order in family court on the father's behalf seeking to prohibit the mother from contacting any of the father's family members, including the daughter.  The petition did not mention the custody order.  The family court granted the petition and issued a TRO prohibiting the mother from having any contact with her daughter.  Two weeks later, a child welfare services official visited the mother's home and rated the mother a low to moderate risk score.  During the visit, the mother informed the CWS worker of the custody order.  A few days later, CWS officials conducted a "grab and go," taking the daughter from her school without a court order or prior notice to the mother, and put her in the father's custody on Kauai.  When the plaintiff attempted to report to the Kauai county police department that the daughter had been "kidnapped and was in the custody of an allegedly abusive, non-custodial parent, the defendant officer allegedly worked with other defendants to prevent the allegations from being investigated or a police report from being filed.  Eleven days later, the family court held a hearing on the TRO, learned of the custody order, and dismissed the prohibition against the plaintiff having contact with her daughter.  The daughter was returned home 21 days after being grabbed from her school.  The district court denied the defendant officer's motion for dismissal based on qualified immunity, on the ground that the operative complaint stated a plausible claim for violation of a clearly established right to familial association.

The court of appeals agreed.  A right to familial association under the 14th Amendment (for parents) and the 4th Amendment (for children) is clearly established.  9th Circuit case law at the time of the incident clearly established that as part of that right, parents and children have a right to be free from judicial deception in child custody proceedings and removal orders.  Judicial deception may occur through either affirmative misrepresentation or deliberate omission.  The facts alleged state a plausible claim that the defendant officer prepared a petition that intentionally omitted any reference to the custody order, and did not otherwise inform the court of the order; and that had the judge been informed, the court would not have granted the order.  It therefore stated a plausible claim for violation of the mother's and child's right familial association based on judicial deception.  Any reasonable official would understand that deliberately concealing material custody information from a court for the purpose of depriving a custodial parent of a child violates the law.  The allegations that the defendant officer's participation in removing the daughter and placing her in the father's custody also stated a plausible claim that the defendant violated clearly established law that removal of a child from a parent without the parent's consent or a court order, absent reasonable cause to believe the child is in imminent danger, violates the right to familial association.  The facts alleged also state a plausible claim that the continued separation exceeded that reasonably necessary to avert the specific injury at issue.

HIgh School Owed Duty of Care to Student Stabbed on Campus After Hours

In Achay v. Huntington Beach Union High School Dist., published June 28, 2022, the Fourth District Court of Appeal, Division 3 reversed summary judgment for the defendant school district.  The plaintiff, a 10th grader, was on the school track team.  Her last class ended at 2:30 p.m. Between 2:30 p.m. and 10 p.m., the public could come onto campus freely.  The plaintiff usually had track practice on campus between 3-5:30 p.m.  One day, track practice ended at 4:30 p.m.  The plaintiff and a friend walked to a nearby Starbucks at left at 5:00 p.m.  They walked back to campus to retrieve their schoolbooks from the girls' locker room.  As they walked back, they encountered a stranger on roller blades, who taunted them.  When they returned to the school campus at 5:15 p.m., the stranger was in the parking lot, talking with students.  The students went to the locker room, which was customarily not locked until 6 p.m.  They went to an inner locker room with a lockable door, because they did not feel safe.  Eventually, they went to the school parking lot to be picked up by the plaintiff's friend's mother.  They passed the school swimming pool where practice was taking place.  After they passed the pool, the stranger roller bladed behind the plaintiff and stabbed her in the back, seriously injuring her.  The plaintiff sued the school for breaching a duty to provide security for students.  The district moved for summary judgment on the grounds that the school district owed her no duty of care, and that there was no causal connection between the alleged negligence and the swift, unpredictable attack.  The trial court granted summary judgment.

The appellate court held that the school district owed the plaintiff a duty of care.  School personnel owe students under their supervision a protective duty of ordinary care, including the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties.  Schools have a general duty to supervise the conduct of children on school grounds during school activities.  The appellate court ruled that the District owed the plaintiff a duty of care because she was stabbed while she was on campus during school-related activities, after-school sports.  The district argued its duty to protect the student ended when her track practice was over and she left campus for 45 minutes.  But the incident occurred on school grounds, during ongoing after school sports activities (the swim practice was ongoing nearby).  That she left campus briefly and returned to be picked up made no difference.  Because the plaintiff's track practice usually lasted until 5:30 p.m. and the locker room was open until 6:00 p.m., it was reasonably foreseeable that a student would leave campus briefly, return to pick up schoolbooks, and walk to the school parking lot to be picked up.  All was part of the school activity.  As for causation, the facts that the campus was open after 2:30 p.m., after-school activities continued on campus after that, and the plaintiff and her friend were fearful about the assailant being on campus raised a triable issue of fact on whether the presence of security the girls could have summoned would have prevented the attack.

Use of Police Car As Roadblock for Fleeing Bicyclist Did Not Violate Clearly-Established Law

In Seidner v. De Vries, published June 30, 2022, a divided panel of the 9th Circuit Court of Appeals reversed a district court's denial of summary judgment based on qualified immunity in a 42 U.S.C. section 1983 case based on alleged use of excessive force.  The plaintiff was riding his bicycle on a well-lit street without a front light, in violation of state law.  The defendant officer pulled his car ahead of the plaintiff to confirm the violation, and activated his lights.  As the officer stepped out of his car to talk to the plaintiff, the plaintiff continued pedaling past the officer and began to flee.  The officer got back into the car and pursue the bicyclist, who was traveling around 15 miles per hour.  The officer accelerated, pulled his car at an angle across the street, and stopped.  As the officer started to step out of the car, the plaintiff's bicycle crashed into the car.  The plaintiff was injured.  The plaintiff sued the officer for use of excessive force.  The district court denied the officer's motion for summary judgment, ruling that a jury could find the use of force excessive and that the law clearly established that the conduct could constitute excessive force.  The officer brought an interlocutory appeal.

The panel majority ruled that the officer was not entitled to summary judgment on the first prong of qualified immunity (whether the officer violated the right at issue) but was entitled to summary judgment on the second prong (whether the law was clearly established).  On the first prong, under the circumstances, the officer used an intermediate level of force in setting up a roadblock in front of a fleeing bicycle, particularly since the bike crashed into the car rather than the car hitting the bike.  The government's interest in using force for a minor bicycle violation was low, but once the plaintiff started fleeing, the government had an interest justifying some use of force to stop him from fleeing despite how the incident arose.  To conclude otherwise would hamstring law enforcement officers in trying to hold suspects on bikes accountable for unlawful conduct.  Under the circumstances, the court cannot say as a matter of law that a jury would be compelled to find the way the officer used his car to stop the bicyclist reasonable.  There was therefore an issue of fact on reasonableness that prevented summary judgment on the first prong.  On the second prong, there was no law at the time of the incident that put beyond debate that the officer's use of his car as a roadblock for a bicyclist under similar circumstances would be excessive force.  The law was therefore not clearly established, and the officer was entitled to summary judgment based on qualified immunity.

One judge concurred that the officer was entitled to qualified immunity on the second prong, but would hold that the use of force was excessive.

Because Sheriff Was Not Employee of County, Report of Investigation Commissioned by County of Complaint against Sheriff Is Not a Personnel Record Exempt from CPRA

In Essick v. County of Sonoma, published June 29, 2022, the First District Court of Appeal, Division 4 affirmed a trial court's denial of a preliminary injunction in a reverse-CPRA case.  A county supervisor lodged with the county administrator a harassment complaint against the county sheriff.  The county administrator, HR director, and chair of the board of supervisors retained a private law firm to conduct an impartial investigation.  After the report was rendered, the board of supervisors gave the sheriff a Formal Notice of Outcome of Investigation.  A newspaper requested the investigation report under the California Public Records Act.  The county informed the sheriff that it had received the request and intended to release the report.  The sheriff's attorney objected to the proposed release on the ground that the investigation report was a personnel document protected from disclosure under the Pitchess statutes, particularly Penal Code section 832.7.  The county disagreed.  The sheriff brought a complaint for declaratory and injunctive relief requesting the court bar the release of the report.  The trial court issued a temporary restraining order, then denied the requested preliminary injunction, ruling there was no evidence to show the investigative records should be classified as "personnel records" under section 832.7.  The sheriff appealed.

The appellate court agreed with the trial court.  The issue is whether Government Code section 6254, subdivision (k) exempted the report from production under the CPRA.  Subdivision (k) incorporates other disclosure prohibitions established under law, including the Pitchess statutes protecting officer personnel records.  The report was not a personnel record, because the county was not the sheriff's employer.  Although the county has chosen to pay its elected officials, under the California constitution the sheriff is a public official elected by the voters, and is ultimately responsible to them, rather than the county board of supervisors or anyone else in county government.  The board of supervisors cannot hire, fire, or discipline the sheriff.  The county's investigation of the sheriff does not make him the county's employee.  The report was the product of an independent outside inquiry.  That the county promised the sheriff the investigation would comply with the Peace Officers' Bill of Rights did not estop the county from releasing the report, because POBRA does not contain any provisions exempting documents from production under the CPRA.

In Split of Authority, Appellate Court Holds That Claimant Can Argue Actual Claim Compliance in Government Code Section 946.6 Petition for Relief from Late Claim Petiti

In Simms v. Bear Valley Community Health Care District, published June 28, 2022, the Fourth District Court of Appeal, Division 2 reversed an order denying a Government Code section 946.6 petition for relief from the claim requirements and dismissing the case.  The respondent is a local health care district.  On December 8, 2017, the plaintiff was injured and sought treatment at the district’s emergency room.  In December 2017 and January 2018, he went to appointments with several district providers to obtain additional treatment.  He verbally complained about his treatment on December 26, 2017 and January 26, 2018, alleging the providers were refusing to investigate and treat his complaints because they perceived him as trying to obtain drugs on false pretenses.  The district responded to the complaints with a January 30, 2018 letter.  Appointments in March and April 2018 also did not meet the plaintiff’s expectations.  On April 24, 2018, the District sent plaintiff a “formal notice” that it would no longer serve as his primary care provider.  On May 13, 2018, the plaintiff sent the district a letter, framed as a response to the January 30, 2018 letter.  In the letter, he complained about his treatment.  He demanded all references to “drug seeking behavior” be removed from his medical records, and that he receive a written apology from one doctor.  He threatened that if he continued to be “defamed, harassed, mistreated, and ignored” by the district, he would “take his concerns to a higher level” by “filing a lawsuit for restitution.”  The district did not respond to this letter.  On July 11, 2019, Simms sent the district a letter framed as a Code of Civil Procedure section 364 notice, addressed to the same District employee as the May 2018 letter.  In this letter, the plaintiff wrote he intended to file a medical malpractice suit against the district.  He represented that in July and September 2018 he had received results of MRI scans that revealed spinal injuries from the 2017 fall that the district had failed to diagnose, resulting in further damage and delay of treatment.  He also complained of withdrawal symptoms from failure to prescribe medications.  The district treated this letter as a claim under the Government Claims Act.  It responded with a Notice of Return of Late claim.  On July 30, 2019, the plaintiff applied to the district for leave to present a late claim.  The district denied it on August 20, 2019.  On November 18, 2019, plaintiff petitioned the trial court under Government Code section 946.6 for relief from the claim requirement.  The court denied the petition.  It ruled that the May 2018 letter did not comply with the Government Claims Act’s requirements, and could not be deemed either a claim or a defective claim.  It further found that the plaintiff had failed to show entitlement to relief.

The appellate court ruled that the trial court should have treated the plaintiff’s May 2018 letter as a defective claim; the district had waived any defect by failing to timely serve a Notice of Insufficiency; and therefore the trial court should have allowed the plaintiff to proceed with a lawsuit alleging causes of action encompassed by that claim.  The court acknowledged the split of authority among appellate courts on whether a party could assert in a section 946.6 petition that the claimant had actually submitted a timely claim, or whether the argument could only be made in a subsequent lawsuit.  The court decided that it would side with the courts allowing a petition to show actual compliance, so long as the issue did not depend on disputed issues of fact that would have to be submitted to a jury.  Where raised in an appeal from a claim-relief proceeding, after having been argued fully in the trial court and submitted on appeal without reservation or argument that the issue remains pending below, the issue of actual compliance is properly addressed on appeal. The court further observed that the notices a public entity is statutorily required to send to a claimant whose claim is untimely, or whose late-claim applications are denied, are inaccurate for claimants who actually submitted a timely claim, in that they advise the claimant that the “only recourse” is to follow the late-claim procedure.  The issue of whether the plaintiff’s May 2018 letter qualified as a claim, or as a “claim as presented” or “trigger claim” that triggered the district’s duty to respond with a Notice of Insufficiency, is an issue of law the appellate court reviews de novo.  The letter communicated that he felt he had compensable claims for defamation and medical malpractice against the district, and that if it was not settled he would bring a suit for restitution—i.e., damages.  It therefore qualified as a “claim as presented,” and the district waived its defects by not sending a timely Notice of Insufficiency.  The district contended that the plaintiff’s cause of action did not accrue until the MRI scans he had after he sent the letter.  But his causes of action accrued when he sustained injury and suspected a negligent cause, which could have been as early as December 2017 or January 2018, when he orally complained.  The plaintiff failed to present a late-claim application within a year of accrual, which deprived the trial court of jurisdiction to grant him relief from the claim requirements.  But it did not deprive the court of jurisdiction to deem his claim actually timely.  The issue of whether the statute of limitations for filing suit had also passed.  Although the two-year statute of limitations under Government Code section 945.6(a)(2) would have expired by May 2020, the court deemed the statute of limitations equitably tolled as of January 10, 2020, when the trial court found the May 2018 letter was neither a claim nor a defective claim.  As of that date, the plaintiff was bound by claim preclusion from filing suit and arguing that he had complied with the claim requirement.  The tolling period would run through the remittitur on the appeal.  The appellate court directed the trial court to deny the petition for relief without prejudice to the plaintiff filing a complaint and proceeding with a lawsuit.

Claim for Fabrication of Evidence Does Not Require Evidence of Motive or “But For” Causation

In Richards v. County of San Bernardino, published June 24, 2022, the 9th Circuit Court of Appeals reversed summary judgment granted to the defendant county and a county investigator in a 42 U.S.C. section 1983 action.  The plaintiff was accused of murdering his wife.  The defendant investigator found, under the fingernails of fingers of the remains that had been severed after the autopsy (and that had been scraped for trace evidence) a visible blue fiber that matched a shirt the plaintiff had been wearing.  Two trials of the charges against the plaintiff ended with hung juries.  A third ended in mistrial.  Before the fourth attempt, the county retained a forensic odontologist who opined a bruise on the decedent’s hand (which the medical examiner had determined was not a bitemark) was a bitemark that was consistent with the plaintiff’s teeth.  Plaintiff spent 20 years in prison before a habeas corpus petition with new evidence (including the odontologist recanting his testimony) resulted in vacation of his conviction.  The plaintiff then sued various sheriff’s officers and the county for constitutional violations allegedly committed during the murder investigation and prosecution.  In particular, he alleged that the investigator had fabricated the blue fiber evidence, and that the county’s customs and policies resulted in the alleged constitutional violations.  The district court granted summary judgment for all defendants.  It found that the plaintiff did not carry his burden of showing any constitutional errors, and therefore could not prove the county’s Monell liability.

The court of appeals disagreed on those points.  It held that the district court erred in rejecting the deliberate fabrication claim on the grounds that the plaintiff was unable to point to evidence of a motive to deliberately manipulate the evidence; there were more plausible explanations for the late discovery of the fibers; and that the plaintiff had failed to prove causation.  There is a clearly established constitutional due process right not to be subjected to criminal charges based on false evidence deliberately fabricated by the government.  The district court erred in requiring the plaintiff to show evidence of motive.  While motive is potentially strong circumstantial evidence in support of a fabrication claim, it is never required.  The plaintiff had direct evidence of fabrication.  He therefore had no need to show motive.  The finding of a more plausible explanation of the fiber was error, because it resulted from the district court weighing the evidence.  The district court had to accept the plaintiff’s evidence as true without making credibility determinations or weighing the evidence.  Further, the plaintiff presented evidence from which a jury could reasonably infer that the fibers were not under the decedent’s fingernails at the time of the autopsy.  The district court also erred in concluding that the fiber evidence was not the “but for” cause of the conviction, in light of the bitemark.  Because of the fundamental due process right at issue, the correct standard was not but-for causation, but rather whether the evidence was “material”—i.e, there is a reasonable likelihood that the allegedly fabricated evidence could have affected the judgment of the jury.  Finally, the court erred in holding the Monell claims failed because there was no predicate constitutional violation by a government official.  Because there was an issue of fact as to whether the investigator fabricated the evidence, there was an issue of fact on constitutional violation.  Further, even if no individual violated the Constitution, if the plaintiff can establish he suffered constitutional injury by a county policy, the fact that individual officers are exonerated is immaterial to Monell liability.  Here, the plaintiff put forth theories of Monell liability not premised on findings of liability by any individual officer.