Government Liability Update

Because Prison Staff Member's Sexual Assault of Prisoner Violates Eighth Amendment, Jury Instruction Requiring Prisoner to Prove Elements of Excessive Force Claim Was Plain Error

In Bearchild v. Cobban, published January 16, 2020, a divided 9th Circuit panel reversed and remanded the judgment entered after the jury trial of a prisoner's Eighth Amendment claim against prison officials.  The plaintiff alleged that during an intrusive search, a prison guard improperly rubbed, groped, stroked, and squeezed the plaintiff in intimate areas.  During the trial of the prisoner's 42 U.S.C. section 1983 suit for violation of his Eighth Amendment rights, the district court gave the jury the 9th CIrcuit model Eighth Amendment instruction, which focused on the amount of force used, the need for the use of force, the user's subjective state of mind, and the harm.  The pro se inmate did not object to the instruction.  The jury returned a defense verdict.

The majority ruled that the jury instruction was erroneous.  Past 9th Circuit cases of alleged sexual assault of prisoners by prison staff established that a sexual assault violates the Eighth Amendment, since it serves no penological purpose; the defendant is presumed to have acted maliciously and sadistically for the purpose of causing harm, satisfying the subjective state of mind element; and the inmate need not prove he or she suffered injury to prove a violation.  Therefore, a prisoner presents a viable Eighth Amendment claim where where he  or she proves that a prison staff member, acting under color
of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.  Because the instruction given required the prisoner to prove additional elements concerning excessive force, it was plain error.  A further instruction defining sexual assault did not cure the error, because a reasonable jury would not necessarily understand the instruction applied to the Eighth Amendment claim.  A dissenting judge opined that the combined instructions adequately informed the jury of the plaintiff's burden.

Period Probationary Employee Was Relieved of Duty, with Pay, Was Period Away from Actual Service, Permitting Employer to Extend Probationary Period

In Amezcua v. Los Angeles County Civil Service Commission, ordered published January 17, 2020, the Second District Court of Appeal, Division 5, affirmed a trial court order denying writ petitions of ordinary and administrative mandamus challenging the dismissal of a sheriff's deputy.  The county's civil service rules prescribe that a county employee's probationary period shall be no longer than 12 months from date of appointment to permanent position.  The rules further provide that if an employee is absent from duty, the appointing power may calculate the probationary period based on the date of actual service, exclusive of the time away.   The rules define "actual service" to mean time engaged in the performance of the duties of a position or positions including absences with pay.  The plaintiff was placed on a 12-month probationary period.  During the period, he was relieved of duty during an administrative investigation.  He was told to turn in his gun and badge and remain at home during work hours.  He received pay.  He was notified that his probationary period was being extended.  More than 12 months after his hire, he was terminated without a hearing.  He contended that his probationary period was not properly extended; that he therefore became a permanent employee when the 12 months expired; and that he was entitled to a hearing before termination.

The appellate court majority concluded that the probationary period was properly extended.  It interpreted the time during which plaintiff was relieved of duty to be time absent from duty, since he had no duties except to surrender his badge and gun and remain home during work hours.  It rejected an argument that because actual service included absences with pay, the time during which he was relieved of duty was a period of actual service.  A dissenting justice disagreed, and opined the text of the rules supported the plaintiff's interpretation.

School District Plan Limiting Parent's Communications with Teachers Did Not Violate Parent's First Amendment Rights

In L.F. v. Lake Washington School District, published January 17, 2020, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 lawsuit based on the plaintiff parent's First Amendment rights.  The plaintiff allegedly engaged in a pattern of sending incessant e-mails to school staff accusing them of wrongdoing, making demands, and leveling insults, and also acted agressively and in an intimidating manne in face-to-face interactions concerning the district's decisions about his children, including the plaintiff's contention that his daughter would benefit from a plan under section 504 of the Rehabilitation Act.  The district imposed a communication plan, under which the parent's substantive communications with the district about his children's education would be limited to bi-weekly, in-person meetings with two administrators.  The e-mail communicating the plan advised the plaintiff against e-mail or other communications with any district employees outside the bi-weekly meetings, as the employees would not respond to them.  The plan did not apply in the event of an emergency, did not prevent him from pursuing administrative appeals, and did not bar him from attending school activities or accessing school records.  The plaintiff was told he could appeal the communication plan to state court.  He did not do so.  When the district determined the plaintiff had violated the plan, it changed the frequency of meetings to monthly.  The district court concluded that the communication plan did not violate the plaintiff's First Amendment rights.

The 9th Circuit agreed.  The plan did not restrict the plaintiff's speech, because the only penalty for violating the plan was that the district employees would not respond to him.  The plan therefore restricted the employees' speech, not the plaintiffs.  Even if the plan could be deemed a restriction on the plaintiff's speech, it was a reasonable one.  Under the circumstances, a parent's communication with the school about his children was a non-public forum.  The regulation was therefore subject to limited First Amendment review:  it needed only to be reasonable to comply with the First Amendment, so long as it was not an effort to suppress the speaker's activity based on disagreement with the speaker's message.  These restrictions were reasonable, and were based on the manner in which the plaintiff communicated with the district--not the content of his speech.  The plan was therefore a reasonable effort to manage a parent's relentless and unproductive communications with district staff.

Going and Coming Rule Bars City's Vicarious Liability for Employee's Auto vs. Pedestrian Accident, Despite Workers Compensation Treatment of Employee's Injury

In Bingener v. City of Los Angeles, ordered published January 9, 2020, the Second District Court of Appeal, Division 3 affirmed summary judgment for the defendant city in a personal injury suit.  A city employee who worked in a lab, seldom left the lab, and never used his personal vehicle for work-related travel, struck a pedestrian during the employee's morning commute to work.  The pedestrian passed away.  The city sought summary judgment based on the going and coming rule, which provides that an employee is generally not considered to be acting within the scope of employment when going to or coming from his regular place of work.  The Plaintiff argued that there was a dispute of fact on the work-spawned risk exception, because the city allegedly knew of health conditions that impaired the employee's ability to drive, but allowed him to return to work prematurely without placing restrictions on his driving.  The trial court granted summary judgment based on the going and coming rule.

The appellate court agreed that there was no issue of fact on the work-spawned risk exception.  The evidence established without dispute that the employee did not have a health condition or took medication that impaired his ability to drive on the date of the accident.  The employee's treating physician, not the city, cleared the plaintiff to return to work after a back injury, and did not place restrictions on the employee's driving.  No evidence supported the plaintiff's theory that the accident was a foreseeable consequence of the employee's back injury two months earlier.

Administrative Decision in Employee's Termination Precludes First Amendment Retaliation Claim, but Not Labor Code section 1102.5 Claim

In Bahra v. County of San Bernardino, published December 30, 2019, the 9th Circuit affirmed in part and reversed in part a district court's dismissal of a suit against the defendant county and two employees for alleged retaliatory termination.  The employee was fired from county Children and Family Services after informing his superior of database errors.  He was issued a notice of proposed dismissal.  He sought an administrative hearing.  The hearing officer issued a notice of dismissal.  The plaintiff administratively appealed the dismissal.  After an evidentiary hearing, the hearing officer concluded that the plaintiff had not produced evidence of retaliation, and that allegations against him were substantiated.  The county civil  service commission adopted the hearing officer's recommendation and sustained the dismissal order.  The commission advised the plaintiff of his right to seek review of the decision from the trial court via a Code of Civil Procedure section 1094.5 writ petition.  The plaintiff did not seek a writ.  Instead, he sued under 42 U.S.C. section 1983 and Labor Code section 1102.5, alleging he was terminated in retaliation for whistleblowing.  The district court ruled that the administrative decision precluded the plaintiff's claims.

The 9th Circuit reversed the dismissal of the plaintiff's Labor Code section 1102.5 claim.  Federal courts grant the same preclusive effect to state administrative agency decisions that those decisions would receive in state court.  In California, administrative agency decisions typically have preclusive effect, provided that they have a sufficiently judicial character and that the elements of claim or issue preclusion are satisfied.  The exception is where affording preclusive effect would contravene the California legislature's intent.  Taswell v. Regents of UC (2018) 23 Cal.App.5th 343 ruled that the exception applied to claims for retaliation brought under Labor Code section 1102.5.  The Ninth Circuit concluded that the California Supreme Court would not rule differently, and therefore followed Taswell.  But the 9th Circuit affirmed the dismissal of the § 1983 claim of retaliatory termination in violation of the First Amendment.  The administrative decision, based on an administrative hearing, had a sufficient judicial character for issue preclusion.  The elements of issue preclusion were met.

Using a Chokehold on a Restrained, Non-Resisting Person Violates Clearly-Established Law

In Tuuamalemalo v. Greene, published December 24, 2019, the 9th Circuit affirmed a trial court order denying summary judgment in a 42 U.S.C. section 1983 case on qualified immunity grounds.  In 2014, the plaintiff was involved in a confrontation with police officers.  After five officers took the plaintiff to the ground, the defendant officer put the plaintiff in a lateral vascular neck restraint chokehold.  The plaintiff lost consciousness, and it took several attempts to revive him.  He sued the officers who restrained and used force against him.  The other officers obtained summary judgment based on qualified immunity.  The officer who applied the chokehold was denied summary judgment.

The 9th Circuit agreed with this ruling.  Viewing the facts in the light most favorable to the plaintiff--as the court was required to do when reviewing an order denying summary judgment based on qualified immunity--the plaintiff was restrained and was not resisting when the officer applied the chokehold.  Before 2014, a 2013 case and a 2003 case had held that using a chokehold on a non-resisting, restrained person violated the Fourth Amendment.  Further, a robust consensus of authority from other circuits holds that using a chokehold on a non-resisting person violates the Fourth Amendment.  The law was therefore clearly established in 2014 that use of a chokehold in this specific context violated the Fourth Amendment.

Issues of Fact on Whether Public Raceway Increased Risk to Users Defeats Summary Judgment on Recreational Immunity

In Kim v. County of Monterey, published December 12, 2019, the Sixth District Court of Appeal, in a split decision, reversed summary judgment granted to the defendant county in a lawsuit based on dangerous condition liability.  The county owns a raceway and co-manages it with a vendor.  Professional racing standards require that racetracks maintain flat verges and run-off areas where users whose vehicles that make a mistake, suffer mechanical failure, or strike another vehicle may decelerate or regain control.  Drainage ditches and sandbags are maintained at the racetrack during the rainy season to prevent erosion.  They are removed during professional racing events.  The vendor will remove the sandbags if a renter requests it.  On the day of the accident, a company hosted a track day at the racetrack, at which individuals could ride motorcycles and autos at the track at speeds up to 140 miles per hour.  The plaintiff signed a waiver before riding his motorcycle at the track.  None of the users were warned of the sandbags, which were unmarked and the same color as the ground, placed in the safety zones.  The plaintiff ran his motorcycle into a safety zone and hit a sandbag.  The plaintiff alleged causes of action for dangerous condition and gross negligence.  The county moved for summary judgment.  In opposition to summary judgment, the plaintiff presented an expert declaration that placing the sandbags on the track was below the standard of care.

The appellate court majority evaluated the dangerous condition cause of action using negligence principles.  It interpreted the gross negligence cause of action against the county as an attempt to plead around the county's affirmative defense of hazardous recreational use immunity under Government Code section 831.7, which the majority interpreted as a primary assumption of the risk defense.  There was no dispute that the plaintiff was engaged in a hazardous recreational activity.  The court ruled that the county owed a duty of care not to increase the risk inherent in racing on the track, which is essentially what plaintiff was doing in riding around the track at high speed.  The plaintiff adequately alleged in his complaint that the presence of sandbags was not a danger inherent to the sport.  The county did not carry its burden on summary judgment of producing evidence that it was.  The county therefore failed to establish summary judgment based on lack of duty.  The majority then found a triable issue of fact on whether the county breached that duty.  The reasonableness of the steps taken to prevent erosion was an issue of fact.  There was also a triable issue of fact on whether the presence of sandbags was an extreme departure from care that would support a finding of gross negligence.  The paucity of accidents at the raceway did not remove these issues of facts.  While the standards barring sandbags applied to professional racing, not amateur use, a reasonable trier of fact could find the standards relevant to safety standards at the track generally.

A dissenting justice opined that the majority was collapsing the distinction between ordinary and gross negligence; and that in light of the primary assumption of the risk doctrine, the undisputed facts established that the county and vendor were entitled to summary judgment.

Park Path Used for Recreational Purposes Is Subject to Trail Immunity, Regardless of Purpose for Which It Was Designed

In Loeb v. County of San Diego, ordered published December 16, 2019, the Fourth District Court of Appeal, Division 1 affirmed nonsuit for the defendant County in a dangerous condition case.  The plaintiff was injured when she tripped on an uneven concrete pathway in a county park.  The pathway led to a restroom.   The plaintiff was using the path to travel from a barbecue in the park to the restroom.  The county moved for summary judgment on the ground that the path was a recreational trail under Government Code section 831.4.  The trial court found a triable issue of fact on whether the path was designed and used for a recreational purpose, or simply to provide access to the restroom.  The county renewed its motion for summary judgment, adding evidence of photos of people using the path to ride bikes, walk dogs, and run.  The plaintiff disputed whether the photos depicted people using the path for recreational purposes or simply heading to the restrooms.  The trial court again found a triable issue of fact.  At trial, when the parties debated the special verdict forms to be used, the plaintiff stipulated the path was used for recreational purposes.  She maintained that the issue was whether it was designed for a recreational purpose.  The trial court granted the county nonsuit, on the ground that the use established the trail immunity.

The appellate court agreed.  Under the statutory language, trail immunity applies if a trail is used for recreational purposes, or to provide access to recreational purposes.  The purpose for which the trail is designed is not the determinative factor.  Because the paved path in a park was a trail, and the plaintiff stipulated at trial (as she did not do at the summary judgment level) that the trail was used for recreational purposes, the county was entitled to nonsuit.

Pursuit Policy and Training Need Not Set Forth Speed Limits to Provide Immunity

In Riley v. Alameda County Sheriff's Office, published December 17, 2019, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant sheriff's office under Vehicle Code section 17004.7, which immunizes public agencies from liability for collisions involving vehicles pursued by peace officers if the agency adopts and promulgates a written policy on, and provides regular training for, vehicular pursuits.  The plaintiff's motorcycle was struck by a car fleeing sheriff's deputies.  He alleged that the sheriff's office's policy, promulgation of the policy, and training did not meet statutory requirements.

The court ruled that the policy, promulgation, and training met the requirements.  The plaintiff contended that the policy did not meet the requirement to determine factors to be considered by an officer and supervisor in determining speeds throughout a pursuit.  The court ruled that although the policy did not expressly state factors to be considered in determining speeds, it set forth 17 factors to be considered in making pursuit decisions, which included the speeds involved and other factors that would require the consideration of speed.  Similarly, the training included warnings against excessive speeds, and required consideration of factors involving speed.  The law did not require the policy to include numeric speed limits.  The court also rejected the argument that the department's promulgation of the policy did not meet the requirements of ordering that all officers sign off on the policy.  The department promulgated a general order requiring all officers to read the policy in a timely manner and sign off electronically that they had done so.  Eighty percent of officers in the department had done so.

School Whistleblower Statute Did Not Impliedly Repeal School Districts' Statutory Immunity from Punitive Damages

In Visalia Unified School Dist. v. Superior Court (Harlan), published December 17, 2019, the Fifth District Court of Appeal issued a writ reversing a trial court order denying a motion to strike a prayer for punitive damages against the petitioner school district.  The real party in interest, a district employee, sued the district for alleged retaliation in violation of the Reporting by School Employees of Improper Governmental Activities Act (Ed. Code, §§ 44110–44114).  Education Code section 44114, subdivision (c), allows the award of punitive damages against "persons."  Subdivision (d) of that statute defines "persons" to include any state or local government, or any agency or instrumentality of such governments.  The district moved to strike the real party's prayer for punitive damages on the ground that Government Code section 818 immunizes public entities from punitive damages.  The trial court ruled that the Act, which was passed after Government Code section 818, impliedly repealed section 818 in lawsuits under the Act.

The appellate court ruled that the Act did not impliedly repeal section 818.  Implied repeal is disfavored.  It will be found only where there is no rational basis for harmonizing two potentially conflicting statutes and the two statutes cannot operate concurrently.  Section 818 uses the phrase, “Notwithstanding any other provision of law,” which signals a broad application overriding all other code sections except in limited cases.  The phrase precludes finding implied repeal merely because the section conflicts with a later-passed statute on a single subject.  Section 818 can be correlated with the act to provide punitive damages against "persons" except public entities.  The conclusion is supported by the strong public policy underpinnings for section 818.  If the Legislature intended to create an exception to section 818, it would have expressly done so.