Government Liability Update

Prison Guards Do Not Violate Clearly-Established Law by Making Excessive Noise While Conducting Court-Ordered Welfare Checks

In Rico v. Ducart, published November 20, 2020, a divided 9th Circuit panel held reversed denial of prison guards' motion to dismiss a 42 U.S.C. section 1983 lawsuit brought by a plaintiff prisoner.  A federal court had ordered the California Department of Corrections to conduct welfare checks on inmates in Security Housing Units every half hour.  The electronic system for confirming the welfare check makes a loud noise for twelve seconds.  The unique physical structure of the SHU units at Pelican Bay prison creates more noise.  An inmate (released after he began his lawsuit) sued various administrative defendants and four guards for allegedly violating his EIghth Amendment right against cruel and unusual punishment by causing excessive noise and depriving him of sleep.  He sued the guards for allegedly conducting the welfare checks in a haphazard way that made extra noise.  The district court granted the administrative defendants' motion to dismiss based on qualified immunity, but denied the motion as to the guards.  The guards filed an interlocutory appeal from the denial of qualified immunity.

The panel majority ruled that the guards were entitled to qualified immunity under the second prong of the qualified immunity affirmative defense:  The guards did not violate a clearly-established constitutional right.  The court rejected the argument that the qualified immunity standard governing Fourth Amendment cases--requiring factually-specific prior case law establishing the constitutional violation--does not apply to Eighth Amendment cases.  The fact-specific, contextualized nature of the inquiry does not depend on the particular constitutional right alleged to have been violated.  Existing case law holding that failure to prevent excess noise by other inmates that causes sleep deprivation did not put prison guards on notice that causing noise while carrying out a court-ordered system of welfare checks violated an inmate's Eighth Amendment rights, or that the immutable characteristics of a solitary confinement unit was not conducive to those activities.  A court order does not give carte blanche to prison officials to commit obvious violations of rights.   But the order here did not fall into that category of obvious unlawfulness.  Further, that the guards implemented the welfare check system at a court's behest and under the supervision of a special  master plays a large role in determining what reasonable officials in the defendants' shoes would have understood about whether they were violating prisoners' rights.  To the extent the guards allegedly caused the excessive noise by conducting the welfare checks haphazardly, the alleged conduct fell under the category of reasonable mistakes that are covered by qualified immunity.

A dissenting judge opined that taking the facts alleged in the complaint as true, the guards' actions were not protected by qualified immunity.

While Familial Relationship Claims of Parent and Child Raise Identical Issues, Ambiguous State Court Verdict Prevents Claim Preclusion

In Hardwick v. County of Orange, published November 18, 2020, the 9th Circuit affirmed a district court's denial of summary adjudication in a plaintiff's favor of a claim for loss of familial association.  County social workers allegedly made misrepresentations to a court that resulted in minors being removed from their mother's custody and put into foster care.  The mother sued the social workers and the county in California state court.  She obtained a verdict against some of the social workers that they had violated her Fourteenth Amendment right to familial relationship, or her right of privacy.  She obtained a verdict against the county based on failure to train.  When one of the minors obtained the age of majority, she sued the social workers and county in federal court, asserting violation of her right to familial association.  She sought summary adjudication against the social workers and county based on claim preclusion from the state court verdict in her mother's favor.  The district court denied summary adjudication, and granted a defense summary judgment motion by the county.  The case against the social workers proceeded to jury trial, where the jury entered a verdict in favor of the social workers held liable in the state action.

The 9th Circuit affirmed the denial of claim preclusion.  Both a parent and a child have a right to familial association under the Constitution.  A parent's right is to custody and companionship, and is governed by the Fourteenth Amendment.  The child's right is to companionship, and loss of it due to removal from custody is governed by the Fourth Amendment.  But the same legal standard applies to evaluating both rights.  But claim preclusion requires that the prior action adjudicate the identical issue.  Since the verdict in the state court case found violation of either the right to familial relationship or the right of privacy, it is unclear whether the jury in the state case found violation of the familial relationship right.  The district court therefore properly rejected claim preclusion.  Further, because the Monell claim against the county was based on alleged violation of the constitutional right, the district court properly rejected claim preclusion against the county.

Because School Districts Are Not Business Establishments, the Unruh Act Does Not Apply to Them

In Brennon B. v. Superior Court (West Contra Costa Unified School District), published November 13, 2020, the First District Court of Appeal, Division 1 denied a petition for a writ of mandate challenging an order sustaining the real party school district's demurrer to the petitioner's cause of action under the Unruh Act without leave to amend.  The petitioner, who suffers from autism, alleged he has been the victim of disability discrimination by the school, and that the school had violated the Unruh Act.  He contended that the school district was a "business establishment" under the Unruh Act.  He alternatively argued that even if a school district is not a business establishment, Civil Code section 51, subdivision (f) made any violation of the ADA a violation of the Unruh Act.

The appellate court rejected both arguments. The California Supreme Court has not addressed whether a government entity, and specifically a public school district, is a business establishment within the meaning of the Unruh Act.  The appellate court followed the analytical template the Supreme Court has employed in deciding whether a particular entity is a business establishment for purposes of the Act.  The court examined the historical background of the Act, and concluded nothing in that historical context (as a legislative reaction to the U.S. Supreme Court's Civil Rights cases, dealing with federal legislation imposing antidiscrimination protections on private enterprises) supported application to public entities.  In examining the Unruh Act's legislative history, the court noted that successive versions of the legislation reduced the statute's discussion of "schools," first limiting it to business and vocational training schools and then eliminating any mention of schools.  By the time the Unruh Act was enacted, Brown v. Board of Education had already held racial discrimination in public schools unconstitutional.  Nothing in the legislative history of the Act suggests that it was intended to reach discriminatory conduct by state agents, such as public schools.  Supreme Court precedent grappling with the meaning of the term "business establishment" in the Unruh Act confirm that the elements the Court viewed as determining an entity was a business establishment--overall function enhancing economic value; providing athletic facilitiesas a principal activity and reason for existence; providing a physical plant for patrons to use at their convenience; conducting commercial transactions as an integral part of overall operations;  providing the functional equivalent of a classic place of public accommodation or amusement; or providing the sale of a good--apply to school districts.  Other lower court decisions have examined various legislative activities by public entities and concluded they were not the acts of a "business establishment" for purposes of the Unruh Act.  Those California court decisions that have discussed the Act as applying to public entities have not analyzed the issue.  Federal district court cases have split on whether the Unruh Act applies to California public school districts.  The ones that conclude that it does do not properly analyze the issue.  The court addressed whether Education Code section 200 et. seq.'s statement that the statute shall be interpreted as consistent with the Unruh Act did not expand the Act to covering school districts.

The appellate court also analyzed the argument that under statutory language, any violation of the ADA is a violation of the Unruh Act.  It concluded that this language actually indicates that any violation of the ADA by a business establishment is a violation of the Unruh Act.  The amendment of the Act to address ADA violations consistently discusses disability discrimination by business establishments.  An interpretation of the Act to apply to any violation of the ADA would also run afoul of the California Supreme Court's holding that employment discrimination is not covered by the Unruh Act.

Regulations Favoring Recent Recipients of Taxi Medallions Do Not Violate Equal Protection, Due Process, CEQA, or Age Discrimination Laws

In San Francisco Taxi Coalition v. City and County of San Francisco, published November 9, 2020, the 9th Circuit affirmed in part and reversed in part judgment on the pleadings for the defendant city.  In light of ride-sharing businesses eroding demand for taxi service, and the fact that recent taxi medallion purchasers paid $250,000 to the city for each medallion, the city enacted regulations favoring recent medallion purchasers for, e.g., lucrative airport rides.  A group of drivers holding older medallions alleged that the regulations violate equal protection, due process, CEQA, and age discrimination under Government Code section 11135 (prohibiting state actions that discriminate based on age).

The 9th Circuit agreed with the district court that the plaintiff failed to state a claim.  Because no suspect class is involved, only rational basis review applies.  There is a rational basis for favoring newer medallion purchasers, because the regulations reduce traffic at the airport, encourage drivers to service the city rather than the airport, and mitigate economic fallout for newer medallion owners.  All are legitimate government actions.  The regulations do not violate CEQA because they do not involve a "project" as defined by CEQA.  Finally, Government Code section 11135 does not apply to the regulations because the state does not directly fund the challenged program.  The 9th Circuit affirmed dismissal of the federal claims with prejudiced, but remanded the state law claims to the district court for possible amendment.

Prison Officials Not Entitled to Qualified Immunity for Confining Inmate in Unsanitary Cells; Eighth Amendment Violation under Facts Is "Obvious"

In Taylor v. Riojas, published November 2, 2020, the Supreme Court reversed a circuit court's ruling that correctional officials were entitled to summary judgment in a 42 U.S.C. section 1983 case.  The inmate alleged that for six days he was confined to two unsanitary cells.  The first was allegedly covered nearly floor to ceiling in massive amounts of feces.  The second was frigidly cold, had no bunk, and had only a clogged drain in the floor to dispose of bodily wastes.  The plaintiff was allegedly confined without clothing and had to sleep naked in sewage.  The circuit court held that the conditions violated the inmate's Eighth Amendment right to be free of cruel and unusual punishment; but that the prison officials were entitled to qualified immunity, because the law was not clearly established that prisoners could not be housed in cells teeming with human waste for six days.

The Supreme Court ruled that the circuit erred in granting qualified immunity on that basis. No reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house the inmate in such deplorably unsanitary conditions for such an extended period of time.   The circuit cited no evidence that the confinement was compelled by necessity or exigency.  There was no evidence the conditions could not be mitigated in degree or duration.  There was evidence, based on officers' statements, that they were deliberately indifferent to the condition of the cells.  Other case law was too dissimilar to create any doubt about the obviousness of the inmate's right.

Justice Thomas dissented, but did not write a separate opinion.  Justice Barrett did not take part in the consideration or decision.  Justice Alito concurred but opined the court should not have granted review.

Although Use of Less-Lethal Force on Armed Suspect Refusing to Raise Hands Reasonable, Issue of Fact Exists on Whether Officer Using Foot to Force Non-Resisting Suspect Down Reasonable or Subject to Qualified Immunity

In Cortesluna v. Leon, published October 27, 2020, a split 9th Circuit Court of Appeals panel affirmed in part and reversed in part summary judgment for the defendant police officers and city in a 42 U.S.C. section 1983 case.  A 911 operator received a call from a 12-year-old that her mother's boyfriend was carrying a chainsaw and sawing his way into the room where she, her sister, and her mother had barricaded themselves.  Officers were dispatched.  When they approached the home, they saw the suspect holding only a beer.  Police knocked on the front door, identified themselves, and told the suspect to come to the front door.  The suspect emerged from a sliding glass door near the front door, holding a large metal object.  The officers ordered the suspect to drop the object.  He did.  An officer said, "I'm going to hit him with less-lethal," and told another officer to get out of the way.  Officers ordered the suspect to come out, put his hands up, and walk toward them.  He complied.  The officers told him to stop and get on his knees.  An officer saw a knife in the front left pocket of the suspect's sweatpants.  The officer told the suspect not to put his hands down, and to put his hands up.  The suspect turned his head toward the officer, lowered his head, and lowered his hands.  An officer shot the plaintiff with two beanbag rounds.  The suspect then raised his hands.  The officers ordered him to get down.  As the suspect lowered himself to the ground, an officer used his foot briefly to push the suspect to the ground.  He then pressed his knee against the suspect's back and handcuffed him.  A video of the incident appears at https://cdn.ca9.uscourts.gov/datastore/opinions/media/19-15105-Cortesluna-Videotape.mp4  The suspect sued the officers and city for use of excessive force.  The district court granted all of the defendants summary judgment.

The majority affirmed summary judgment for the use of the less-lethal bean bag shotgun.  It concluded under the circumstances--the suspected crime, the knife in the pocket, the suspect's failure to obey orders to keep his hand raised--the use of force was objectively reasonable.  As for the knee on the back, the majority found a genuine issue of fact on whether the use of force was reasonable.  Viewing the facts in the light most favorable to the plaintiff, a reasonable jury could find that the suspect was not resisting, that the knife was blade-up and could not be grabbed and used, and that the knee was applied with enough pressure to cause the suspect pain.  Because existing precedent held that use of a knee on a suspect under similar circumstances violated the Fourth Amendment, the majority held, the officer was not entitled to qualified immunity.  The majority affirmed dismissal of state law claims against the officer who used the less-lethal weapon and reversed the dismissal as to the officer who used his knee.

A judge dissented from the portion of the opinion affirming summary judgment in favor of the officer who used the less-lethal weapon, opining that issues of fact prevented a finding that the use of force was reasonable.  Another judge dissented from the portion of the opinion reversing summary judgment as to the officer who used his knee.

Officer Did Not Violate Clearly-Established Law by Using Deadly Force on Suspect Approaching Previous Assault Victim with Drawn Knife

In Ventura v. Rutledge, published October 22, 2020, the 9th Circuit Court of Appeals affirmed summary judgment granted to a police officer in a 42 U.S.C. section 1983 case.  In 2015, the mother of the decedent's children called 911 and reported that the decedent had hit her and the decedent's mother.  The call was classified as a violent domestic disturbance.  As the defendant officer was interviewing the reporting party, the decedent began walking up the sidewalk toward the party's home.  The reporting party told the officer, "That's him."  She moved behind trash cans.  The officer issued several orders to "stop."  The decedent continued approaching, and drew a knife.  The decedent said, "Is this what you wanted?"  He continued to approach.  The officer shouted, "Stop or I'll shoot."  The decedent did not stop.  The officer shot and killed the decedent.  The decedent was within 10-15 feet of the reporting party when the officer fired.  The district court ruled that the officer was entitled to qualified immunity.

The 9th Circuit agreed.  The court resolved the qualified immunity issue on the second prong of the immunity:  whether the officer's use of force violated clearly-established law.  As of 2015, the court determined, the law had not clearly established that using deadly force against a suspect who was advancing with a knife toward the woman he had reportedly just assaulted, and who ignored an officer's repeated commands to stop, amounted to constitutionally excessive force.

Filing Lawsuit and Presenting Late-Claim Application on Same Day Does Not Comply with Claim-Presentation Requirement

In Lowry v. Port San Luis Harbor District, published October 22, 2020, the Second District Court of Appeal, Division 6 affirmed judgment entered for the defendant district based on a motion for judgment on the pleadings.  The plaintiff filed a complaint in superior court against the district.  On the same day, he faxed the district an application for permission to present a late claim, with a proposed claim attached.  The district's harbor manager received the application the next day, and presented it to the board of commissioners 16 days later.  The district sent the plaintiff a notice rejecting the claim, but not mentioning the application.  The plaintiff later served the summons and complaint upon the district.  The district filed an answer asserting failure to comply with the Government Claims Act.  The trial court granted the district's motion for judgment on the pleadings based on noncompliance with the Act.

The court of appeal ruled that the plaintiff timely presented the late-claim application to the board within a year of accrual.  The fact that the harbor master did not present it to the board until 16 days later did not affect the timeliness of the presentation, because the plaintiff faxed the application to the proper recipient, the district.  Because the district sent a Government Code section 913 notice denying the claim on its merits, and did not send a Government Code section 911.8 notice denying the application (and warning that the plaintiff had six months to petition the court for late-claim relief), the district was estopped from asserting that it did not grant the application to file a late claim.  The application was therefore deemed granted.  But the plaintiff did not wait for the district to take action on the claim or application, or for the time for it to do so to expire, before filing suit.  Therefore, his complaint was premature.  The appellate court disagreed with various cases that allowed plaintiffs to file premature complaints before claims were rejected.  In light of the California Supreme Court's decision that claim presentation requirements were to be strictly applied, the appellate court deemed those cases no longer good law.  The plaintiff therefore failed to comply with the Government Claims Act.  The trial court properly granted judgment on the pleadings without leave to amend.

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.