Government Liability Update

Trial Court Erred in Treating Suit Challenging Water Rates as Administrative Mandamus Petition and Excluding Expert Declaration

In Malott v. Summerland Sanitary District, published October 19, 2020, the Second District Court of Appeal, Division 6 reversed a trial court judgment denying a petition for writ of administrative mandamus.  The defendant district, which provides wastewater collection, noticed a public hearing on a service rate increase.  The plaintiff, an apartment house owner, did not attend the hearing.  The rate increase was approved at the hearing.  The plaintiff then filed the administrative mandamus writ petition challenging the rate increase.  She alleged she was excused from exhausting the administrative remedy of the hearing because it was an inadequate remedy.  She challenged the district's method for calculating rates as violating the state constitution.  She filed a motion for judgment that included an expert declaration supporting her contentions.  The trial court granted a motion to strike the declaration on the ground that it had not been filed at the public hearing, and therefore was improper extra-record evidence.  The court upheld the rate as valid.

The court of appeal ruled that the trial court had erred both in striking the declaration and in denying the petition.  Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372 ruled that the public hearing required by article XIIID, section 6 of the California Constitution, added by Proposition 218, is an inadequate administrative remedy for challenging the method of calculating service fee allocation among parcels, and therefore does not have to be exhausted before the method is challenged in court.  Plantier involved a declaratory relief action.  The plaintiff's election to petition for administrative mandamus instead of filing a declaratory relief action does not prevent the plaintiff from challenging the rate calculation method.  The formality that the plaintiff styled her lawsuit as an administrative mandamus action does not prevent Plantier from applying.  The distinction between declaratory relief and mandamus is not always clear.  Where a plaintiff mistakenly files an administrative mandamus petition instead of an ordinary mandamus petition or declaratory relief cause of action, relief will not be denied where the allegations of
the petition are sufficient to support the other two causes of action.  Because the petition asked for relief that would be appropriate in a declaratory relief action, the petition should be judged on the substance of its allegations rather than its label.  Although administrative mandamus petitions are generally limited to the evidence in the administrative record, to confine petitioners to the record of an inadequate administrative remedy would improperly elevate an exclusionary rule over the right to have a forum to litigate.  Further, even in administrative mandamus actions, courts have the discretion to admit extra-record evidence if the criteria are met.  Here, the expert declaration was relevant evidence supporting the challenge the plaintiff was entitled to make.  The appellate court remanded the action to the trial court to permit both parties to present evidence before the court makes its decision.

Ballot Measure Cannot Be Challenged Post-Election Due to Alleged Deficiencies in Ballot Materials; Demurrer to Challenge Permissible

In Denny v. Arntz, published October 14, 2020, the First District Court of Appeal, Division 2 affirmed the dismissal based on demurrer of a lawsuit challenging a city proposition.  The proposition was summarized in a voter pamphlet.  Pre-election, public meetings were held to discuss the digest language on the proposition that would go into the pamphlet.  The pamphlet also included the full text of the proposition.  The proposition passed, with 82.7 percent of the votes cast in favor.  Five months after the election, the plaintiff sued the city director of elections and city attorney to set aside the proposition under Elections Code sectoin 16100.  He contended that the digest materials were not fair and impartial.  The trial court sustained the defendants' demurrer without leave to amend.

The appellate court held that the plaintiff failed to state a cause of action under Elections Code section 16100.  A court has a duty to uphold an election if possible, and the election must be upheld unless plainly illegal.  A court's authority to invalidate an election is limited to the grounds of section 16100.  Section 16100 does not set forth grounds to challenge a ballot measure based on alleged deficiencies in the impartial analysis of a ballot measure.  Enforcing the requirements for an impartial analysis of a ballot is a preelection activity, using the preelection remedies for doing so.  The appellate court further rejected the contention that the procedures of the Election Code superseded the Code of Civil Procedure's application, precluding a demurrer.  That would apply only if a cause of action was available under section 16100.

Mobile Billboard Ordinance That Excludes Specific Vehicles Is Content-Based Regulation Subject to Strict Scrutiny

In Boyer v. City of Simi Valley, published October 14,2020, the 9th Circuit Court of Appeals reversed in part and affirmed in part dismissal at the pleadings stage of a lawsuit challenging a city mobile billboard ban.  The ordinance banned mobile billboards on public property.  It excluded authorized emergency or construction-related vehicles.  The plaintiff challenged the ordinance as a content-based regulation of speech that violated the First Amendment. The district court concluded that the ordinance was content-neutral, and passed the rational-relation test as a reasonable time, place, and manner regulation.  It also dismissed the plaintiff's state law claims.

The 9th Circuit ruled that the district court erred in deeming the ordinance content-neutral.  A ban on all mobile billboards on public property would be content-neutral.  But the court could not determine a ground for excluding emergency or construction vehicles from the ban except for the content of the speech, and the city did not supply any.  Content-based speech regulations must satisfy strict scrutiny.  Because the district court did not analyze the ordinance under strict scrutiny, the 9th Circuit reversed and remanded dismissal of the federal law claims.  It affirmed the dismissal of the state law claims.  The district court had jurisdiction to analyze those claims on the merits and dismiss them at the same time it dismissed the federal claims.

Court Granting Preliminary Injunction under California Public Records Act May Require Plaintiff to Post Undertaking

In Stevenson v. City of Sacramento, published October 6, 2020, the Third District Court of Appeal affirmed a trial court order conditioning the grant of a request for a preliminary injunction under the California Public Records Act on posting a $2,349.50 undertaking.  The plaintiffs submitted CPRA requests to the defendant city for e-mails scheduled for automatic deletion.  When the city informed the plaintiffs their request was excessive, but offered to postpone deletion a week to allow plaintiffs to narrow their requests, the plaintiffs agreed to narrow the requests but also sued the city for allegedly refusing to provide them access to the requested records.  At the plaintiffs' request, the trial court issued a temporary restraining order to maintain the status quo.  At a later hearing, the court granted the plaintiffs' request for a temporary restraining order directing the city to preserve the 15 million e-mails the city identified as responsive to the narrowed CPRA requests.  Over the plaintiffs' objection, the court conditioned the grant of the injunction on the plaintiffs posting an undertaking under Code of Civil Procedure section 529, based on the city's estimated cost of complying with the injunction.

The appellate court rejected the various arguments of the plaintiffs and amici curiae that section 529 was incompatible with the CPRA.  The court noted that various statutory schemes that permit injunctive relief expressly exempt certain parties from section 529's requirement that a party seeking a preliminary injunction post an undertaking.  CPRA does not contain an express exemption.  Thus, section 529 provides the general rule, and the CPRA does not provide an exception; although Government Code section 6258, part of the CPRA, expressly allows parties to obtain injunctions, it says nothing about undertakings.  While Government Code sections 6253 and 6259 specify costs that may be charged requesters under the CPRA, these rules do not mean the Legislature, by implication, believed CPRA applicants should be exempted from other generally applicable requirements.  Trial courts retain discretion not to require undertakings if circumstances warrant.

Time to bring Monell Claim Based on Officer's Conduct Tolled until Charges against Plaintiff Dismissed

In Lockett v. County of Los Angeles, published October 2, 2020, the 9th Circuit, ruling on an interlocutory appeal, affirmed denial of a motion to dismiss a Monell claim in a 42 U.S.C. section 1983 case on statute of limitations grounds.  On January 1, 2016, officers from the defendant county arrested the plaintiff.  The plaintiff alleges the officers used excessive force in arresting him.  On January 20, 2016, the plaintiff was charged with attempted murder.  He was held in custody until August 2, 2016, when the charges were dropped.  On July 2, 2018, the plaintiff brought his suit.  The plaintiff alleged that the defendant county tolerated and ignored racially motivated cliques and gangs that led to the alleged use of excessive force.  Because the plaintiff sued two years and five months after his arrest, the defendant argued that the two-year statute of limitations under Code of Civil Procedure section 335.1, which applies to section 1983 actions, barred the Monell claim.  The district court held that the claim was tolled while the plaintiff was in custody.

The 9th Circuit agreed.  Under Government Code section 945.3, no person charged with a criminal offense may sue a peace officer or employing public entity for damages based upon peace officer conduct relating to the offense for which the accused is charged while the charges are pending before a superior court.  Section 1983 charges are tolled by section 945.3 while criminal charges are pending.  Here, "based upon" means "but for" causation.  Section 945.3 tolls the statute when the "but for" cause of the claim is the conduct of the peace officer.  A Monell claim cannot be brought unless the plaintiff proves that a peace officer committed an underlying constitutional violation.  Thus, in this case, the officers' alleged conduct in using excessive force is the "but for" cause of the plaintiff's Monell claim.  His claim was therefore tolled while his criminal charge was pending.

Bicyclist's Dangerous Condition Claim for Striking Pothole Not Barred by Primary Assumption of the Risk

In Williams v. County of Sonoma, published September 28, 2020, the First District Court of Appeal, Division 5 affirmed a judgment against the defendant county after jury trial in a case alleging a dangerous condition of public property.  The plaintiff biked down a hill on a county road, and encountered a pothole four feet long, three feet four inches wide, and four inches deep.  The plaintiff's bike hit the pothole at 25 miles per hour and she was seriously injured.  The trial court rejected the county's argument that the primary assumption of the risk doctrine barred the lawsuit.

The appellate court agreed.  Assuming without deciding that the primary assumption of the risk doctrine applies to a dangerous condition of public property claim, the county failed to establish that the duty not to increase the danger inherent in the sport of cycling did not apply.  The county argued that because it had no role in cycling or relationship with the plaintiff, it owed no duty to avoid unreasonably increasing the inherent risks.  Whether the defendant owes such a duty is guided by the policy goals underlying the doctrine:  avoiding chilling participation in the activity and thereby altering its fundamental nature.  Imposing the duty on the county would not alter the fundamental nature of bicycling on county roads.  Because the county owes a duty to all foreseeable users to maintain safe roads, and the pothole here would pose a danger not only to bikes but to other vehicles, imposing a duty on the county to eliminate such road hazards does not materially increase the county's burden and would not lead it to curtail the speed limit for cyclists or otherwise fundamentally alter the activity.  The county waived the argument that it did not breach the duty by failing to repair the pothole.

Law Clearly Established That Shooting Suspect after Suspect Wounded Officer, but Danger Passed Violated Fourth Amendment, but Fourteenth Amendment Not Violated; No Clear Error in Admitting PTSD Evidence on Recollection Issue

In Lam v. City of Los Banos, published September 25, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part denial of an FRCP 50(b) motion after jury verdict.  The defendant officer was called to the plaintiff's house to assist the plaintiff in dealing with his son, who was displaying mental illness symptoms.  When the officer and plaintiff came to the son's room, the son grabbed a pair of scissors and stabbed the officer.  The officer shot the son in the leg.  He and the plaintiff retreated down a hallway.  The officer's firearm jammed, and he used a method to clear the jam.  He then shot the son again, fatally.  Before trial, the officer moved in limine to bar evidence that he had suffered from post-traumatic stress disorder two years before the incident.  The district court denied the motion, without prejudice to objecting to the evidence at trial. The defendant did not renew the objection at trial. The jury found that the son had stabbed the officer; that the officer had retreated; and that the son did not approach the officer with scissors before the officer filed the second, fatal shot.  The jury found that the officer used force with an intent to harm.  The officer was found liable for violating the decedent's Fourth Amendment rights and the plaintiff's Fourteenth Amendment right to familial relationship.  

The panel majority affirmed the denial of the Rule 50(b) motion as to the Fourth Amendment claim.  Although the evidence established that the first use of deadly force, when the son stabbed the officer, was probably reasonable, the officer's use of deadly force after he and the plaintiff had retreated and the son was no longer armed, after the officer had time to clear his weapon, and in the absence of a warning to the son, supported the jury's finding that the use of force for the second shot was unreasonable.  The majority also ruled that denial of qualified immunity was proper, because the second use of force violated clearly established law.  Precedent from the Ninth Circuit had established that use of deadly force toward a suspect who had previously been armed or wielded a weapon, but was no longer doing so at the time force was used, was unreasonable.  Similarly, precedent established the fact that a suspect had wounded an officer or other person did not render use of deadly force against a suspect who no longer posed a threat reasonable.  The panel unanimously ruled, however, that the evidence did not support the finding of liability under the Fourteenth Amendment.  The time that passed was not sufficient for deliberation before the second shot was fired, so the test for violation of the Fourteenth Amendment--whether the conduct shocked the conscience--was whether the officer used force with an intent to harm that was unrelated to a legitimate law enforcement objective.  The jury's finding of acting with an intent to harm was not sufficient.  There was no evidence the officer used the force to bully the suspect, or out of retaliation.  Finally, the majority ruled that because the defendant did not renew the objection to the PTSD evidence, it could constitute error only if the district court committed plain error in allowing it.  Because the officer's ability to recall and self-report the events was at issue, the district court did not commit plain error in allowing the evidence.

The dissenting judge opined that because no previous case was sufficiently similar to the facts of this matter, the law did not clearly establish the second shot was unreasonable, and thus the officer was entitled to qualified immunity.  The judge also opined that allowing the PTSD evidence in was plain error absent evidence the officer suffered from PTSD at the time of the incident.

Strip Search of Prison Visitor without Giving Visitor Option of Leaving Violates Fourth Amendment, but Law Was Not Clearly Established

In Cates v. Stroud, published September 25, 2020, the 9th Circuit Court of Appeals affirmed summary judgment for defendants in a lawsuit brought under 42 U.S.C. section 1983.  The plaintiff went to a prison to visit her incarcerated boyfriend.  Before she arrived, correctional officers received a tip that the plaintiff might try to bring drugs into the prison. A correctional officer obtained a warrant to search the plaintiff's "person" and vehicle and seize any illegal controlled substances or narcotics.  The warrant was never executed.  When the plaintiff arrived at the prison, she signed a consent form to search of her person.  Two correctional officers led the plaintiff to an administrative building, where a female correctional officer strip-searched the plaintiff.  At no time before or during the strip-search was she told she was free to leave.  The officers detained the plaintiff while they searched her car.  The officers then told the plaintiff they had a search warrant, but that it did not include her cellphone.  She denied the officers permission to search her phone.  The officers then terminated the plaintiff's visit to the prison.

The panel reviewed the law concerning searches of prison visitors, and the holdings of other circuits on the subject.  The panel adopted the holdings of multiple circuits (and rejected the holding of another) and held that strip searches of prison visitors based on reasonable suspicion may be carried out only if the prison gives the visitor the option of leaving the prison rather than being searched.  Since the purpose of the search is to prevent contraband from being introduced into the prison, the need to do so does not outweigh the intrusiveness of the search if the visitor leaves the prison without accessing secure areas of the prison.  But because there was no previous Ninth Circuit ruling on this issue, or a robust body of case law from other circuits, and the rule was not sufficiently "obvious,"  the law on this point was not clearly established.  The correctional officer who carried out the search was therefore protected from liability under the Fourth Amendment by qualified immunity.

The panel rejected the argument that the officers violated the Fourth Amendment when they detained the plaintiff while searching her car; the Fourth Amendment permits a brief detention during a search.  The officers did not violate her due process rights by failing to give her a copy of the search warrant because the search warrant was not executed.

If No Single Police Officer in Chase or Use of Force Was Liable in Tort, Plaintiff Cannot Argue Combined Actions of Officers Were Unreasonable and Rendered City Liable

In Koussaya v. City of Stockton, published September 21, 2020, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city and defendant police officers.  The plaintiff was a teller in a bank robbed at gunpoint.  Police officers confronted the robbers at the bank.  The robbers took the plaintiff and two others as hostages.  The robbers ignored police commands, and commanded a hostage to drive them from the site in her vehicle.  Police pursued.  Soon after the pursuit began, a robber shot the driver in the leg and threw her out of the vehicle, taking over the wheel.  A robber fired multiple shots from an AK-47 at the lead pursuing officer.  The pursuit reached speeds of over 100 MPH over 60 miles, and involved over 30 police cars.  The robbers continued shooting at the police cars.  There was confusion over which police lieutenant was commanding the pursuit, and lieutenants gave conflicting orders.  A captain who went to head off the vehicle saw it exit an offramp with a robber pointing his rifle toward the offramp.  The captain fired  shots toward the robber, who fired his weapon and withdrew into the moving vehicle.  Another officer shot at the vehicle on the exit ramp.  The plaintiff decided her best chance of survival was to throw herself out of the vehicle while it was traveling at high speed.  Minutes later, police officers fired multiple rounds into the vehicle, killing two robbers and the remaining hostage.  The plaintiff sued the officers and the city for assault and battery, intentional infliction of emotional distress, and negligence.  The complaint alleged violation of general orders, police orders, negligence in conducting the pursuit, and use of excessive force that resulted in her injuries.

The appellate court ruled that the trial court had erred in two respects.  It ruled the court abused its discretion in excluding portions of a critical Police Foundation report about the incident as hearsay.  Since the police chief who requested the review of the incident adopted portions of the report in a press conference, the trial court should have admitted those portions under the adoptive admissions exception to hearsay.  The appellate court also ruled that the trial court erred in excluding some of plaintiff's contentions of wrongdoing on the ground that they were not reflected in her claim.  The claim alleged wrongdoing concerning the response at the bank, the use of force, and the pursuit; the complaint merely filled in details to these general allegations, rather than introducing new theories of liability.  The appellate court concluded, however, that these errors were not prejudicial.  As a matter of law, the officers who used deadly force toward the vehicle at the exit ramp used reasonable force under the circumstances.  They had probable cause to believe the robber they shot at posed a significant threat of death or serious physical injury to the pursuing officers and bystanders.  While firing at the vehicle endangered the hostages in the vehicle, no reasonable juror would conclude those actions were outside the range of reasonable conduct under the circumstances.  The contention that the officers violated superiors' orders and general orders did not raise a material issue on reasonableness; those orders are evidence concerning reasonableness, but do not establish the standard of care for using deadly force.  And even if the officers violated a superior's order to fire, that violation was reasonable under the circumstances.  The argument that the officers provoked the use of deadly force by the manner in which they conducted the pursuit failed.  Vehicle Code section 17004 bars liability for the manner in which the officers operated their vehicles during the pursuit.  Vehicle Code section 17001 did not provide an exception, because the plaintiff was not injured by operation of a police vehicle, but by her decision to jump from the vehicle.  

Since none of the individual officers identified as allegedly being negligent were liable, the city could not be held vicariously liable for the allegedly negligent actions of the police collectively.  Doing so would be to hold the city directly liable despite the lack of statutory liability, in violation of Government Code section 815.

Danger, Design Approval, and Lack of Warning Are Immaterial to Trail Immunity

In Nealy v. County of Orange, ordered published September 14, 2020, the Fourth District Court of Appeal, Division 3 affirmed the trial court's dismissal, based on demurrer, of a dangerous condition lawsuit.  A county park included a loop trail used for hiking and bicycling.  In the past, a wooden lodgepole fence ran perpendicularly across the trial, serving as an entrance and exit for the trial and creating a physical barrier bicyclists had to maneuver around when riding north or south on the trail.  The plaintiff knew of the fence's existence and had ridden around it.  The fence was replaced by new fencing, consisting of wooden pylons between which were strung gray colored wired cables.  The fencing also ran parallel to the trail.  The plaintiff noticed the old fencing was removed, and mistakenly believed he could ride between the fenceposts of the new fence across the trail.  He rode into the wire cables, and was injured.  He sued the county for maintaining a dangerous condition of public property.  The county demurred on the ground of Government Code section 831.4's trail immunity.  The court sustained the demurrer with leave to amend.  The plaintiff filed a first amended complaint that changed the description of the fence, and attacked the design of the fencing.  The court sustained a demurrer to the amended complaint without leave to amend.

The appellate court ruled that under the sham pleading rule, the plaintiff could not change the description of the fencing set forth in his claim for damages or original complaint, and could not allege facts contrary to the photos he attached to his pleadings as exhibits.  The plaintiff did not contest that the trail was a trail used for recreation.  Government Code section 831.4's trail immunity therefore applied.  The fence was part of the trail, as established by past case law holding that features such as gateways to recreational trails were part of the trail for purposes of the immunity.  The plaintiff's arguments that the fencing was dangerous did not avoid the immunity, since the statute is an immunity to dangerous condition liability.  The plaintiff's contention that the design of the fence was not approved was immaterial, since the immunity at issue was not design immunity.  His contention that the county failed to warn of the cables was immaterial; the immunity is absolute, and is not dependent on warnings.  Since the plaintiff was riding his bike for recreation on a recreational trail, the fencing was a part and condition of the trail,  and that condition injured him, the immunity applied.  There was no reasonable possibility of further amendment.