Government Liability Update

Challenge to One-Time Benefit Program Is Moot after Money Spent

In Cerletti v. Newsom, published November 17, 2021, the Second District Court of Appeal, Division 5 dismissed an appeal from denial of a temporary restraining order against government spending in connection with a one-time benefit program as moot.  In April 2020, Governor Newsom established a $75 million Disaster Relief Fund to support undocumented Californians impacted by COVID-19.  The plaintiffs, as taxpayers, sued to challenge the project as an unlawful expenditure of funds.  In May 2020, they applied ex parte for a temporary restraining order and order to show cause re a preliminary injunction, seeking to halt distribution of benefits under the project.  The court denied the application on grounds including that prejudgment injunctive relief is not ordinarily available to remedy an alleged harm based on taxpayer standing.  The plaintiffs petitioned the appellate court for writ relief.  The appellate court denied the petition on grounds including the availability of an appeal.  The plaintiffs appealed the denial of the TRO.  They petitioned for a writ of supersedeas staying the order denying the TRO and the project itself.  The appellate court denied the petition, citing the rule that taxpayer harm is ordinarily insufficient to establish irreparable harm warranting preliminary injunctive relief.  While the appeal was briefed, the project money was all spent.

The appellate court ruled that because the money was spent, the appeal was moot.  While the court could resolve the case anyway if it raised an important issue likely to recur, but that evades timely appellate review, the court ruled that this was not such a case.  This was an emergency project to provide one-time payments during an extraordinary pandemic, which caused a state of emergency and a temporary pause in the operation of the Legislature.  There was nothing suggesting it was likely to recur.  

School District and Administrators Immune from Liability for Failure to Prevent Student Bullying Allegedly Causing Victim's Off-Campus Suicide

In Leroy v. Yarboi, ordered published November 16, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment for the defendant district, its principal, and its assistant principal.  The plaintiffs' decedent, a high school student, suffered from Tourette's Syndrome, sensory integration disorder, and borderline Asperger's Syndrome.  He was in a virtual school program, and attended the high school physically during only two periods.  In one of his classes, several students bullied and harassed the decedent.  The decedent reported one student for harassing him and calling him names.  Both students signed a "no contact" contract agreeing not to have contact with each other.  The day after summer break began, decedent took his own life.  The decedent's parents alleged that the administrators had negligently failed to address and prevent student bullying of the decedent, which caused the decedent to commit suicide; and that the school was vicariously liable for their conduct.  The trial court granted summary judgment on the ground that the administrators did not breach their duties to the decedent, and on the ground that Education Code section 44808 immunized the district and administrators from negligence liability.

The appellate court affirmed the summary judgment on the ground of immunity.  Section 44808 immunizes school districts and their employees from liability for the conduct or safety of students when students are not on school property, unless the district or person has undertaken to provide transportation or a school-sponsored activity, or has otherwise specifically assumed responsibility or liability for off-campus activities.  There is an except for failure to exercise reasonable care under the circumstances.  The plaintiffs asserted that the district and administrators failed to exercise reasonable care under the circumstances.  They argued that the immunity did not cover negligent failure to protect a student from bullying on-campus that led to the student's off-campus suicide.  But the weight of authority holds that 44808 immunize districts and employees from liability for student safety outside school property unless the student was or should have been directly supervised during a specific undertaking.  The provision concerning reasonable care refers to failure to exercise reasonable care during one of the undertakings.  Because the decedent committed suicide off-campus during summer break in his home, while he was not and should not have been supervised by any district employee, and no one at the district had assumed responsibility for his well-being, the district and its administrators were immune from liability under section 44808.

Officers Did Not Violate Clearly-Established Law by Accepting Arrestee's Representations about Her Health

In J.K.J. v. City of San Diego, published November 15, 2021, a divided panel of the 9th Circuit Court of Appeals dismissal of a complaint against defendant city and officers.  The defendant officers stopped a car with an expired registration.  The decedent was riding in the car as a passenger.  The officers questioned the decedent, who was coherent and showed no signs of distress.  The officers learned there was an outstanding arrest warrant for the decedent involving a prior methamphetamine offense.  They handcuffed her and put her in their vehicle.  The officers searched the stopped car and found a saran-like plastic commonly used for narcotics sales.  They found no drugs.  Inside the police cruiser, the decedent vomited.  One of the officers called for paramedics.  The officers asked decedent if she was detoxing or withdrawing.  The decedent replied, "No," and stated that she was sick, her stomach was turning, and that she was pregnant.  One of the officers called off the paramedics.  An officer asked if she ate something.  She shook her head and said, "Mmm-mm."  The officers began the hour-long drive to the police station.  En route, the decedent told the officers she did not want to go to jail; requested water and a bathroom break; and groaned and screamed on several occasions.  At one point, she screamed for help.  One of the officers asked her what was going on.  She remained silent for ten minutes.  The officers stopped the car to check on her.  An officer opened the door and told her she needed to stay awake.  When she screamed she needed help, the officers told her to knock it off and that she was fine.  On arrival (about three minutes after that incident), decedent was lying face down across the backseat.  She screamed and breathed rapidly.  One of the officers told her to stop hyperventilating.  The officers removed the decedent from the cruiser to the pavement, and fingerprinted her as she lay on her side.  The officers asked if she wanted water, and she requested water.  They returned her to the cruiser.  Eleven minutes later, decedent had fallen unconscious.  The officers immediately removed her from the car, called paramedics, and performed CPR.  Decedent fell into a coma and died.  The plaintiff, decedent's child, alleged decedent died from an overdose.  The plaintiff sued under 42 U.S.C. section 1983 for denial of medical care under the Fourth Amendment, denial of due process, and Monell liability for the city.  The district court granted the motion, ruling that the complaint failed to state a plausible claim for denial of medical care; that the officers were entitled to qualified immunity; and that the complaint failed to state a Monell claim against the city.

The panel majority agreed with this rulings.  It affirmed the district court's decision to consider a publicly-available video of the incident that was incorporated into the complaint by reference.  Where the complaint makes conclusory allegations contracted by a document incorporated by reference into the complaint, the court may decline to accept the conclusory allegations as true.  The district court properly limited its consideration of the video according to this rule.  The district court properly dismissed the Monell action.  Although the complaint alleged failure to train, it failed to allege facts showing a failure to train caused this incident.  Instead, the complaint alleged that the officers departed from their training.  For the defendant officers, the appellate court ruled that they were entitled to qualified immunity on both prongs.  On the first prong, the facts alleged in the complaint failed to show the objective reasonableness that would be necessary to state a claim for denial of medical care under either the Fourteenth Amendment (due process) or the Fourth Amendment (excessive force).  The officers' actions--including taking the arrestee's representations about her status at face value--were objectively reasonable under the circumstances.  Arguments that the officers should have concluded the decedent had ingested drugs, and that she was not pregnant, were merely exercises of 20-20 hindsight.  The test is whether the officers acted reasonably under the circumstances.  On the second prong, the plaintiff was unable to identify any precedent that clearly established under similar circumstances that the officers' actions violated the requirement to provide a detainee or arrestee with medical care.

A judge, dissenting in part, opined that the complaint stated a plausible case against at least one of the officers for failing to take action in light of an acute medical emergency.

Because the Treble Damages Award for Cover-up of Childhood Sexual Assault Is Primarily Punitive in Nature, Government Code section 818 Bars Treble Damages Awards against Public Entity Defendants

In X.M. V. Superior Court (Hesperia Unified School District), published September 16, 2021, the Fourth District Court of Appeal, Division 2 agreed with Los Angeles Unified School Dist. V. Superior Court (currently being reviewed by the California Supreme Court) and held that the treble-damages provision of Code of Civil Procedure section 340.1 for cover-up of childhood sexual abuse is barred by Government Code section 818, which immunizes public entities such as school districts from punitive damages.  Because by definition they are in addition to compensatory damages, treble damages are generally deemed punitive.  The exceptions are where the legislature intended the provision to be primarily compensatory, or where there is a complex situation that renders compensatory damages an incomplete compensatory remedy.  The court found that the announcements of legislative intent behind the treble damages provision could be read as making sure that victims of cover-up are fully compensated, or they might be read as intending the treble damages to be punitive.  Comparing the treble damages provision in section 340.1 to treble damages provisions that were found not to be primarily punitive, the court determined that the primary purpose of the treble damages provision is punitive.  It is therefore barred as against public entity defendants.

Constructive Notice Standard for Defect in Alley Is Different from Standard for Sidewalk Defect

In Martinez v. City of Beverly Hills, published November 10, 2021, the Second District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant city.  The plaintiff tripped and fell when her rubber flipflop edge hit the edge of a drainage swale in the alley through which she walked.  The asphalt that was normally flush against the edge of the swale had worn away, creating an approximately 1.75" divot.  The divot had been there for at least two years.  The city has an inspection program under which it hires a contractor every two years to inspect the city's streets and alleys and prepare a report spelling out the condition of the alley or street, which the city uses to prioritize resurfacing projects.  The project is not to identify specific divots.  The city will also inspect and if warranted repair any potential hazards in response to user calls.  The city had not inspected this alley since at least seven years before the accident.  In the six years before the accident, the city had received no complaints or work orders concerning this divot.  The year before the accident, the city received a user call reporting a large indentation in the alley.  A city crew went to the alley to repair the indentation, and filled three large potholes.  The crew did not repair the divot.  Per the supervisor, if the crew had seen the divot, it would have done nothing to fix it because the size was insignificant and the material used to patch the potholes cannot be used for small divots.  The trial court granted summary judgment on the ground that the city had no actual or constructive notice of the divot.

The appellate court agreed that summary judgment was appropriate on the notice issue.  It found no triable issue of fact on whether the city had actual notice.  It rejected the argument that every possible city employee who may have been in the alley in the past had to present a declaration denying knowledge of the divot.  In light of the supervisor's declaration that the crew that fixed the potholes that the crew would have taken no notice of the divot because it was too insignificant, any inference that employees who did not present declarations would have noticed the divot was not reasonable.  To prove constructive notice, the test is whether the defect was sufficiently obvious under the circumstances.  Under Government Code section 835.2, the test for obviousness includes considering whether the property was safe for intended or actual known uses of the property.  While sidewalks are intended for persons to walk on, alleys are intended for vehicle use and only occasional pedestrian use.  Public policy warrants requiring more rigorous scrutiny of sidewalks for defects than alleys.  Because alley surfaces degrade far more quickly than sidewalk surfaces, due to use by heavy vehicles, the cost of keeping alleys safe for pedestrians is higher than for sidewalks, and the likelihood of injury to pedestrians is lower.  Public entities may therefore reasonably elect to apply less rigorous scrutiny for defects as compared to sidewalks.  The divot here was therefore, as a matter of law, not sufficiently obvious to create constructive notice.

Under Evidence Code Sections 1106 and 783, "Sexual Conduct" include Sexual Abuse

In Doe v. Superior Court (Mountain View School District), published October 29, 2021, the Second District Court of Appeal, Division 2 denied a writ petition challenging a trial court's decision to allow the defendant school district to present evidence of a plaintiff student's past sexual abuse.  The plaintiff sued the school district for allegedly negligently supervising a fourth-grade teacher who molested the plaintiff in 2010 and 2011.  The district sought to introduce evidence that a family friend sexually abused the plaintiff in 2013.  The plaintiff moved in limine to exclude the evidence under Evidence Code sections 1106 and 352.  In civil actions alleging sexual misconduct, section 1106 bars evidence of specific instances of the plaintiff's sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff.  An exception to the bar is evidence admissible under Evidence Code section 783, which allows evidence of sexual misconduct by the plaintiff offered to attack the credibility of the plaintiff if the court (in a motion proceeding described by the statute) concludes the evidence is relevant and is not barred under Evidence Code section 352 (requiring evidence be more probative than prejudicial).  The district filed a motion for admission of the evidence under section 783.  The trial court ruled that neither section 1106 nor section 783 applied, because "sexual conduct" was limited to voluntary sexual misconduct.  The court then ruled the evidence was not barred by section 352.

The appellate court concluded that the trial court erred in interpreting sections 1106 and 783 to exclude involuntary sexual conduct.  Section 1106 was intended both to exclude evidence of a civil plaintiff's character trait for promiscuity, and to encourage civil complainants to bring lawsuits without fear of having the sexual aspects of their lives scrutinized.  The second, privacy-focused objective applies to both voluntary and involuntary sexual conduct.  Further, interpreting the statute not to apply to sexual abuse would lead to absurd results, such as allowing admission of evidence of all sexual conduct of a person under 18.  The weight of precedent in California and other states also interpreted "sexual conduct" to reach involuntary sexual conduct inflicted on a victim.  Although the trial court erred, the appellate court ruled that the error was not prejudicial, because the section 352 analysis the court conducted adhered to all but one aspect of the section 783 motion procedure.

Officers Did Not Violate Clearly Established Law by Using Deadly Force against Suspect Who Threatened Officers with Hammer

In City of Tahlequah v. Bond, published October 18, 2021, the U.S. Supreme Court, per curiam, reversed a 10th Circuit decision reversing summary judgment for officer defendants.  The officers responded to a call that the complaining party's ex-husband was in her garage, was intoxicated, and would not leave.  The officers went to the side-entrance of the garage and attempted to persuade the suspect to submit to a pat-down search.  He refused.  One of the officers stepped toward the doorway.  The suspect stepped back and walked toward the back of the garage, where his tools were hanging.  The officers followed, and ordered him to stop.  The suspect kept walking.  He grabbed a hammer in both hands and pulled it up to shoulder level.  The officers drew their guns and ordered the suspect to drop the hammer.  The suspect did not do so, and instead walked around furniture so that he had a clear path toward an officer.  He raised the hammer higher back behind his head, as if to throw the hammer or charge the officers.  The defendant officers fired and killed the suspect.  The suspect's estate sued the officers under 42 U.S.C. section 1983, alleging use of excessive force.  The district court granted the officers summary judgment based on qualified immunity.  The 10th Circuit concluded the officers violated the Fourth Amendment by engaging in conduct that brought about the use of deadly force, and held that several cases clearly established the officers' actions were unlawful.

The Supreme Court declined to rule whether the officers violated the Fourth Amendment, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment.  None of the cases the 10th Circuit relied on dealt with a situation where the officers engaged in a conversation with the suspect, followed him into a garage at a distance of 6 to 10 feet, and did not yell until he picked up a hammer.  The most similar case involved officers sprinting toward a potentially suicidal person and attempting to wrest a gun from his hands.  Because neither the circuit nor the plaintiff could identify a single precedent finding a Fourth Amendment violation under similar circumstances, the officers were entitled to qualified  immunity.

Officers Did Not Violate Clearly Established Law by Pressing on Prone Suspect's Back with Knee while Handcuffing Suspect

In Rivas-Villegas v. Cortesluna, published October 18, 2021, the U.S. Supreme Court, per curiam, reversed a 9th Circuit ruling dreversing summary judgment in a 42  U.S.C. section 1983 case.  A 12-year-old called 911 reporting that her mother's boyfriend had a chainsaw and was trying to hurt her, her mother, and her sister.  Officers observed the house and concluded the family had no escape routes.  The defendant officer knocked on the door and identified himself.  An officer shouted the suspect was coming and had a weapon.  The defendant officer ordered the suspect to "drop it."  The suspect dropped a metal tool.  In response to officer commands, the suspect put his hands up and walked toward the officers, stopping 10-11 feet from them.  An officer saw a knife sticking out from the suspect's pocket.  An officer ordered the suspect not to lower his hands.  The suspect lowered his hands, and an officer shot the suspect twice with beanbag rounds.  The suspect then raised his hands and obeyed orders to get down.  The defendant officer raised the suspect's arms and knelt on his back, near the knife, while removing the knife.  The officer knelt on the back for eight seconds.  He got up while holding the suspect's arms as another officer handcuffed the suspect.  The defendant officer lifted the suspect by the arms and moved him away from the door.  The suspect alleged the officer used excessive force.  The district court granted the officer summary judgment.  The 9th Circuit reversed summary judgment, ruling that the officer was not entitled to qualified immunity because he had violated clearly established law.

The Supreme Court ruled that existing precedent did not give the defendant officer fair notice that what he did violated the Fourth Amendment.  Assuming circuit precedent can clearly establish the law, the case the 9th Circuit relied on, LaLonde v. County of Riverside, 204 F. 3d 947 (9th Cir. 2000), involved an officer responding to a noise complaint by pressing his knee into the back of an unarmed suspect hard enough to cause injury.  Here, the defendant officer, responding to a serious case of domestic violence possibly involving a chainsaw, pressed his knee on the side of the suspect's back near the knife that officers were retrieving, and for no more than eight seconds.

Officers Violate Clearly-Established Law if Failure to Identify Selves and Failure to Obtain Warrant Brought About Use of Force

In Murchison v. County of Tehama, published October 4, 2021, the Third District Court of Appeal reversed summary judgment granted in favor of the defendant officers.    Viewing the facts in the light most favorable to the plaintiff, the plaintiff owned property at the end of a public road, which the plaintiff had blocked.  When a real estate agent and a client went past the blockade, the plaintiff told them the road was closed.  The client said he thought he saw something in the plaintiff's pocket that was possibly a handgun.  The agent called the sheriff's department to confirm he had a legal right to use the road, and may have mentioned the handgun.  The defendant officers determined that the plaintiff was a convicted felon who was prohibited from owning firearms, and believed the plaintiff had improperly blocked a public roadway.  The officers did not obtain a warrant to search the plaintiff's property.  An officer admitted they lacked probable cause to obtain a warrant at that time.  Instead, the officers formulated a plan to approach the property in plainclothes, provoke the plaintiff into brandishing a firearm, then arrest him for owning a firearm.  The plaintiff observed the officers enter his property, and called 911.  The officers decided to leave, but then saw an unloaded rifle through the open door of the plaintiff's shop adjacent to his house.  The officers again decided not to obtain a warrant, but instead walk toward the rifle.  They acknowledged there was no emergency present.  The plaintiff, believing he was being robbed, began running toward the rifle.  The officers ran toward the rifle.  An officer drew his weapon, identified himself as an officer,  and ordered the plaintiff onto the ground.  As the plaintiff began to comply, the other officer tackled him.  The officers handcuffed the plaintiff and left him lying in the dirt.  When they asked him about the rifle, the plaintiff informed the officers he had an expungement order he believed allowed him to own rifles.  The officers confirmed the conviction had been expunged, removed the handcuffs, and left.  The plaintiff sued the officers for conducting an illegal search for walking towards the shop and rifle, and using excessive force when they arrested him.  He also asserted claims under the Bane Act and assault and battery.

The appellate court ruled that triable issues of fact defeated summary judgment because, viewing the facts in the light most favorable to the plaintiff, the officers violated the plaintiff's Fourth Amendment rights and were not entitled to qualified immunity to the section 1983 claims.  A reasonable jury could find that an officer violated the Fourth Amendment by leaving the public driveway and entering the plaintiff's curtilage before the plaintiff began running toward the rifle.  Under those facts, the exigent circumstances exception to the warrant requirement would not apply.  A reasonable jury could also find that the use of force was excessive, in light of evidence that the officers' earlier actions may have created the need for their use of force, their purpose of provoking the plaintiff to brandish a firearm, the relatively minor crime at issue, and the degree of force used.  Regarding qualified immunity, the law clearly precluded entering the curtilage of the plaintiff's property without a warrant or exigent circumstances, and multiple cases have held that an officer's failure to identify himself can lead to the unnecessary and excessive application of force.  Regarding the Bane Act claim, there was evidence from which a reasonable jury could find that the officers acted in reckless disregard to the plaintiff's constitutional rights, supporting a specific intent to violate the plaintiff's rights.  Finally, a finding that the officers used excessive force under the Fourth Amendment would also support a claim for assault and battery by a police officer.

 

 

Police Chief Violates Clearly-Established Law by Allegedly Discriminating against Female Officer and Retaliating against Her for Filing Suit

In Ballou v. McElvain, published September 28, 2021, the 9th Circuit Court of Appeals affirmed a district court's denial of a police chief's summary judgment based on qualified immunity.  The plaintiff took an exam to determine elegibility for promotion to sergeant.  Soon after the exam, the plaintiff was investigated by internal affairs for failing to write a report on an incident.  The plaintiff received a letter of reprimand, and the police chief announced that based on the investigation and the plaintiff's failure to follow protocol, he did not intend to promote her.  A group of female officers (not including plaintiff) met with the police chief and pointed out a male officer accused of similar conduct had received an oral reprimand and had not been investigated by internal affairs.  The day after the meeting, the chief announced he would promote the officer ranked directly below the plaintiff on the sergeant's list.  The plaintiff emailed the chief and city manager, complaining that the chief had promoted male officers who had sustained IA investigations against them for more serious offenses.  She stated she had hired a lawyer, but wanted to work the matter out.  After the e-mail, the plaintiff was the subject of eight IA investigations.  After the plaintiff presented two state law tort claims and filed her lawsuit, the chief promoted the male officer ranked below the plaintiff on the list.  The chief asserted he did not know of the lawsuit when he promoted the officer. The plaintiff was eventually promoted to sergeant, months later. The plaintiff alleged denial of equal protection and retaliation for exercise of her First Amendment rights.  The district court denied the chief's motion for summary judgment on these claims based on qualified immunity.

The 9th Circuit ruled that the plaintiff had stated a prima facie case of disparate treatment under Equal Protection and had raised a genuine issue of fact on whether the chief's legitimate reason for his actions was prextextual.  The chief asserted that proof of discriminatory animus will not establish an Equal Protection violation absent proof that others similarly situated were treated more favorably.  The 9th Circuit ruled that this was "profoundly incorrect."  Although comparator evidence may substitute for direct evidence of discriminatory animus, it is not necessary if there is direct proof of discriminatory animus.  Regarding qualified immunity, if the factual issues were resolved in the plaintiff's favor, the chief's alleged conduct of discriminatorily conducting an investigation and using the investigation to deny promotion fell within previously decided 9th Circuit cases, such that any reasonable officer would recognize that conduct as unconstitutional.  Similarly, existing precedent established that retaliating against an employee for the lawsuit, the state tort claims, and the internal e-mail violated the First Amendment, particularly in light of the multiple officers who met with the chief, showing the public interest in the situation.