Government Liability Update

Immunity for Injury Caused by Prisoner Applies to FEHA Cause of Action

In Bitner v. Department of Corrections and Rehabilitation, ordered published January 26, 2023, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant department.  The plaintiffs were employed by the department as vocational nurses.  They alleged that while they were assigned to one-on-one suicide monitoring, they were subjected to acts of sexual harassment by inmates, and that the department failed to remedy the situation, in violation of the Fair Employment and Housing Act.  The trial court granted the department summary judgment under Government Code section 844.6, which immunizes public entities for injuries proximately caused by any prisoner.

The appellate court agreed that section 844.6 immunized the department.  It rejected the plaintiffs' arguments that section 844.6 did not apply to liability under FEHA.  Section 844.6 sets forth a list of statutory exceptions to the immunity, and FEHA is not included in that list.  When faced with conflicting statutes providing for governmental immunity and liability, the statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent.  The court further rejected the argument that FEHA is an exemption to section 844.6 because FEHA creates a "direct" duty.  Since all public entity liability is statutory, interpreting section 844.6 not to apply to any statute creating a "direct" duty would interpret the immunity out of existence.  Plaintiffs argued that the immunity did not apply because their injury was caused not only by the prisoner's acts, but also the department's acts in breaching its duty.  The court rejected this argument as well, both because the plaintiffs forfeited it by not arguing it in the trial court or properly setting it forth in their opening brief, but also on the merits.  Where the undisputed material facts show that the alleged injury was proximately caused by a prisoner, it is not enough for a plaintiff to simply present evidence that additional, concurrent causes may have also contributed to the same injury.  

While Autopsy Photos and Crime Scene Photos Are Exempt from CPRA, other Coroner Documents Requested by Family Are Not

 

In Edais v. Superior Court (Foucrault), published January 17, 2023, the First District Court of Appeal, Division 3 reversed a decision by a trial court on a writ petition brought under the California Public Records Act.  A police officer died in his home, of hanging.  The coroner’s office published a report classifying the death a suicide.  The decedent’s parents, suspecting foul play, hired a forensic pathologist to undertake a forensic autopsy review.  The review requires examination of scene photos, autopsy photos, coroner reports, notes and recordings taken by the coroner’s investigator and the pathologist who examined the body, and recuts of microscopic slides of any tissues retained.  The parents served a CPRA request on the county coroner.  They requested all documents received or generated by or currently in the possession in connection with the decedent’s death.  For physical evidence that could not be reproduced, they requested an in-person inspection.  The coroner’s office produced various reports, but declined to provide photos of the scene or autopsy, and declined to provide the full summary and investigation notes report prepared by the coroner’s investigator, on the ground that the decedent’s widow had not consented to the disclosure.  The petitioners sought a writ of mandate to compel production, as well as declaratory and injunctive relief.  The trial court denied relief under the CPRA petition.  On its own motion, the trial court required the respondents to produce to the parents the requested photos and investigation report.  It relied on Code of Civil Procedure section 129(a), which authorizes a court (on good cause and after notice to the District Attorney) to order the release of a coroner’s photos of the deceased.  The court ordered the parties to negotiate a protective order to prevent the documents’ further release.  The parents petitioned the appellate court for an extraordinary writ, directing the trial court to release all of the public records it generated or received in connection with the death investigation.

The appellate court ruled that the trial court had erred in denying the CPRA request in its entirety.  Coroner and autopsy reports are public records.  The CPRA exception for investigatory files compiled for law enforcement purposes is not at issue in this case.  All of the requested records, including the photos, are public records for purposes of the CPRA.  Certain postmortem and autopsy photos are exempted from disclosure under Government Code section 7927.704, which exempts documents exempted or prohibited  pursuant to federal or state law.  Among the statutes listed in the CPRA that may exempt or prohibit production is Code of Civil Procedure section 129, postmortem or autopsy photos.  These provisions together exempt from disclosure under the CPRA postmortem or autopsy photos whose disclosure section 129(a) prohibits.  The court declined to resolve whether the requested photos fall with the scope of section 129(a)’s prohibition on disclosure, since the trial court ordered the photos produced under a protective order, respondents do not challenge the ruling and have already turned over the photos.  While records released to one requestor under the CPRA generally must be made available to other members of the public, records released pursuant to section 129(a) are likely not subject to the same requirement.  As to the investigation report, the court addressed whether the exemption for medical files and the “catch-all” provision exempted it.  When applying the medical files exemption, the court balances the public interest in disclosure against the individual’s interest in privacy.  The public interest in releasing the coroner’s office documents is significant.  It would assist members of the public in assessing whether the coroner’s office investigated the death thoroughly and competently.  The public interest in correctly distinguishing suicide from homicide is patent.  As for privacy, the decedent has no more privacy interest.  The family has a privacy interest, but the parents are the ones requesting the records, and the widow has not objected.  Another important fact is that the documents to be produced are not photos and videos of the deceased, but technical documents such as coroner’s notes and observations.  The state law recognizing the extreme sensitivity of death-scene and autopsy photos does not protect the other coroner documents (except the decedent’s medical information).  Further, it is common practice for coroners and medical examiners to perform a secondary review of medical evidence.  The public interest in disclosure therefore outweighs any individual privacy interest.  The “catch-all” exemption requires weighing the public interest in disclosure against the public interest against disclosure.  The respondents did not establish any public interest in withholding the documents that is any more substantial than the private interests the court found insufficient.

Public University Professor's Post-Publication Correspondence, Using University E-mail, on Articles Subject to Production under California Public Records Act

In Iloh v. Regents of the University of California (The Center for Scientific Integrity, Inc.), published January 13, 2023, the Fourth District Court of Appeal, Division 3 affirmed a trial court's decision denying a preliminary injunction to bar production of documents under the California Public Records Act.  While the plaintiff was a professor at University of California, Irvine, she published research articles in academic journals.  She used her UCI e-mail address to communicate with the journals about her article submissions.  She submitted the articles on her own behalf, not on behalf of UCI.  UCI had no ownership interest in the articles, and they did not contain UCI's imprimatur.  After four such articles were published, the articles were retracted or corrected by the journals.  In communicating with the retractions, the plaintiff used her UCI e-mail address.  It appears the retractions occurred due to concerns about possible plagerism or inaccurate citation references in Iloh's articles.  Retraction Watch, published by the Center for Scientific Integrity, investigated the retractions.  Retraction Watch sent a CPRA request to UCI seeking correspondence between UCI and the plaintiff regarding articles published in the journals, and correspondence between UCI or the plaintiff and the journals regarding the plaintiff's articles.  UCI notified the plaintiff of the request and its intent to disclose the responsive records.  The plaintiff petitioned for a writ of mandate, declaratory relief, and injunctive relief to prevent disclosure.  The Regents of the University of California, which operates UCI, filed a notice of nonopposition to the plaintiff's motion for a preliminary injunction.  The requestor opposed the motion.  The trial court denied the motion, finding the plaintiff had not established a likelihood of prevailing on the merits because she had not shown the records were not "public records" under the CPRA, nor that the records were otherwise exempt from disclosure.  The plaintiff appealed denial of the preliminary injunction.

The appellate court ruled that the trial court had not abused its discretion in denying the injunction.  The California Constitution requires that the CPRA's definition of "public records" subject to the CPRA be broadly construed, and that the exemptions from the CPRA be narrowly construed.  The trial court acted within its discretion in deeming the requested correspondence to be public records.  The requested correspondence was sent and received using UCI e-mail addresses and is therefore "owned, used, or retained" by UCI, a state agency.  The articles at issue discuss topics directly relevant to the plaintiff's field of study at UCI, and were published in journals devoted to the same field of study.  The requested communications appear to concern whether the plaintiff committed plagiarism or otherwise violated university policies on academic integrity--an issue tied to the use of public funds.  The communications therefore involve the "public's business."  The trial court also did not abuse its discretion in concluding that the communications were not exempt from disclosure.  The plaintiff invoked the CPRA's "catch-all" exemption, which weighs whether the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.  To prove the documents exempt, the plaintiff must establish a clear overbalance on the side of nondisclosure.  Several public interests support disclosure:  expenditure of public funds to pay the  plaintiff and to investigate alleged academic dishonesty; academic research is central to UCI's public function; and the public has an interest in understanding how UCI addresses allegations of academic dishonesty.  That is balanced against a legitimate public interest in protecting academic freedom.  Case law establishes disclosure of prepublication communications about university research may impair the research process and have a chilling effect on academics.  But those concerns do not apply to postpublication communications.  The plaintiff did not meet her burden of establishing a clear overbalance on the side of nondisclosure.  The trial court also acted within its discretion in concluding the communications were not exempt as personnel records.  Even if copies of the communications were placed in the plaintiff's personnel file, the public interest in disclosure of the communications outweighs any privacy concerns in the communications.

Councilperson Can Compel Speech of Appointed Volunteer, and Remove Volunteer from Position for Her Speech, if Volunteer is "Public Face" of Councilperson

In Lathus v. City of Huntington Beach, published January 5, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 action.  A city councilperson appointed the plaintiff to the city's Citizen Participation Advisory Board.  Under the municipal code, each councilperson appoints one member to the board, and may remove the member without cause.  The board's mandate is to provide citizen participation and coordination in the city's planning processes.  After her appointment, plaintiff was photographed at an immigrants' rights rally standing near individuals whom the councilmember who appointed plaintiff believed to be "Antifa."  She directed the plaintiff to write a public statement on social media denouncing Antifa.  The plaintiff did so.  She believed continuing her position depended on doing so.  The councilmember deemed the statement insufficient.  She removed the plaintiff from the board.  The councilmember stated that “[t]hose that do not immediately denounce hateful, violent groups do not share my values and will not be a part of my team.”  The plaintiff sued the city, claiming retaliation for exercising her First Amendment rights to free speech, association, and assembly.  She further alleged that the demand for a public statement amounted to unconstitutionally compelled speech.  The district court dismissed the complaint, holding that the councilmember acted within her rights.

The 9th Circuit agreed.   The critical issue is whether the plaintiff was effectively "a political extension" of the councilmember on the board.  While the plaintiff's attendance at the rally was First Amendment protected activity, the First Amendment did not insulate her from dismissal that was the outcome of the regular functioning of the political process.  The plaintiff was an appointed volunteer in public service.  That by itself did not remove her First Amendment protection.  The question was whether commonality of political purpose with the appointing official was an appropriate requirement for the plaintiff's service on the board. Because each member of the board, appointed by a separate councilmember who can also remove that person without cause, each member speaks to the public and other policymakers on behalf of the official who appointed them.  The board is a conduit between the community and the city council on the vital political issue of providing housing to low and middle income city residents.  Each board member is thus an advisor who formulates plans for the implementation of broad goals.  A councilperson is therefore entitled to an appointee who represents her political views and priorities.  She cannot claim retaliation because she was dismissed for not sharing her appointing councilmember's values.  Further, an elected official can compel the public speech of her representative, because that speech will be perceived as the elected official's own.  The plaintiff's compelled speech claim thus fails as well.

Issues of Fact on Whether Resisting Suspect Posed Imminent Threat of Serious Harm and Whether Officers Had Time to Issue Deadly Force Warning Prevent Summary Judgment Based on Qualified Immunity

 

In Smith v. Agdeppa, published December 30, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed denial of a summary judgment motion based on qualified immunity.  Two police officers responded to a gym’s report of trespassing and disruptive conduct.  When they arrived, staff reported that a man in the locker room was irate, was not listening, had hurt a few gym members, and had assaulted security.  The police entered the shower area of the locker room, where the man was naked, and spent several minutes ordering the man to get dressed, to turn off his music, and to leave the gym.  The man ignored the officers except to raise his middle finger.  The officers attempted to handcuff the man.  For a minute and 20 seconds, the man used his size to thwart the smaller officers’ attempts to handcuff him.  As he resisted, both officers’ body cams were knocked off their uniforms.  The next three minutes were not visible on video, but the cams continued to record audio.The defendant officer alleges that after the cams fell down, the struggle escalated and turned violent.  One officer used her taser in dart mode on the man, and both officers used their tasers in stun mode.  The defendant officer testified that the man repeatedly struck him in the face and knocked him backward into a wall, disorienting him and causing him to drop his taser.  According to the officer, the man straddled his partner and pummeled her head and face with punches.  He believed her life was in danger.  He drew his weapon and gave the man a verbal warning that he needed to stop.  He testified that the man continued to pummel the officer, so the defendant officer fired five shots from six to eight feet away.  The man began falling backwards and away when he fired the final shot.  The district court found that evidence contradicted the defendant officer’s version of events.  The warning to stop cannot be heard in the bodycam audio.  Security guards’ accounts, recounted in an internal investigation of the shooting, differed from the officers’ accounts in several respects.  A guard said that the man was holding the defendant officer’s arm when the shots were fired, contradicting the officer’s statement that he was standing away from the man.  The guards disagreed with the officers on the number of shots fired, the whether the man reached for the defendant officer’s firearm, and whether the man was holding the officer’s wrist until after the second shot was fired.  The internal investigation concluded the defendant officer’s use of lethal force was unreasonable, because there was no exigency preventing the officers from withdrawing and redeploying with greater resources.  Further, the evidence indicated the officers’ injuries were only minor, according to the panel majority.  An autopsy report also put into question the officer’s statement that he shot the man from six to eight feet away.  The district court concluded that a jury could find a reasonable officer in the defendant’s position would have understood his use of deadly force violated the man’s Fourth Amendment ri

 

The panel majority upheld the district court’s finding. In an interlocutory appeal from denial of qualified immunity at the summary judgment stage, the court determines whether the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right; and whether the right in question was clearly established at the time of the officer’s action.  If either question is answered in the negative, the officer is entitled to qualified immunity.  Deadly force is reasonable only if the officer has probable cause to believe the suspect poses an immediate and significant threat of death or serious physical injury to the officer or others.  Further, an officer must give warning before using deadly force whenever practicable.  When the suspect is shot dead, and other evidence in the record (such as medical reports, contemporaneous statements by the officer, available physical evidence, and any expert testimony proffered by the plaintiff) is inconsistent with material evidence offered by the defendant, the majority held, qualified immunity should not be granted.  A jury should consider the contradictory evidence and decide whether they were persuaded by the officers’ testimony.  Here, depending on what happened in the locker room, a jury could find that the officer had an opportunity to give the suspect a “deadly force warning” before escalating to deadly force.  The officer provided several warnings before using intermediate force, but at no point did he warn the suspect he was escalating to the use of his firearm.  The officer’s version of events was materially contradicted by the record, including whether the officer was engaged in hand-to-hand combat with the suspect or stood six to  eight feet away.  While the suspect posed some danger to the officers’ safety by actively resisting arrest, a jury could reasonably reject the officer’s description of a deadly fight and find that a reasonable officer in the defendant’s position would not have believed the fellow officer or anyone else was in imminent danger.  Further, the officer never claimed it was not practicable to give a deadline force warning.  On the contrary, the officer gave a declaration that he gave a verbal warning, stating words to the effect that the suspect needed to stop.  Because the officers had tased the suspect a few times, a warning to stop would do nothing to warn the suspect that the officer was preparing to ramp up to use deadline force.  While the officer would likely prevail if a jury believed his version, the court cannot overlook the internal investigation’s contrary finding that no exigency required use of deadly force.

 

A dissenting judge opined that the undisputed facts, including the audio from the body cams and two independent witnesses’ verification of the officer’s account, indicated that the officers faced an imminent threat, and that the law did not require them to issue another warning before using deadly force.

Principal's Warning to Teacher Wearing MAGA Hat to Training Raises Triable Issue of Fact of First Amendment Retaliation

In Dodge v. Evergreen School Dist. #114, published December 29, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment for the defendants.  The plaintiff teacher wore a red Make America Great Again hat to mandatory teacher training, taking the hat off when he entered the school where the training was held.  The professor leading the training reported to the school's principal that she felt intimidated and traumatized by the hat.  The principal also learned that the hat upset a few teachers at the training.  She spoke with the school's HR officer to discuss what could be done.  They agreed the best option was to talk to the teacher directly.  She told the plaintiff that some people take the hat as a symbol of hatred and bigotry, and that while should could not ask him to stop wearing it, he should use "better judgment" in the future.  The next day, the plaintiff attended another teacher training at a school in the district.  He again wore the MAGA hat until he entered the building.  The principal again contacted the HR director.  They agreed the principal needed to set a "clear directive" that the plaintiff not have the hat in the training.  Later that day, the teacher went to a training at his school, and left his hat in his truck.  The principal again spoke with the plaintiff.  According to the plaintiff, the principal swore during the conversation, called the plaintiff a homophobe, a bigot, and hateful; used profanity; told him that she did not want him wearing the hat; and said, "[N]ext time I see you with that hat, you need to have your union rep.  Bring your rep because I'll have mine."  The principal denied using profanity in the conversation.  The plaintiff made an HR complaint about the principal.  After investigation, the district found that the principal did not violate district policy.  The HR officer informed the plaintiff that no further action would be taken on the complaint; but she granted the plaintiff's request for a transfer to another school.  The plaintiff appealed to the school board.  During a second investigation, the board gave the principal a choice of resigning as principal, accepting demotion, or facing disciplinary proceedings.  She resigned.  The plaintiff sued the district, the principal, and the HR officer for retaliation in violation of his First Amendment free speech rights.  The district court granted summary judgment on the grounds that the principal's and HR officer's actions were protected by qualified immunity, and that the plaintiff had failed to establish that the district had ratified any unconstitutional actions.

The 9th Circuit reversed summary judgment as to the principal.  The plaintiff stated a prima facie claim for first amendment retaliation:  wearing the hat (with the political message it conveyed) was protected speech on a matter of public concern; he acted as a private citizen (rather than as part of his job duties) in wearing the hat to a teacher training; and while the principal "badmouthing" the plaintiff was not an adverse employment action, her threat that he needed to have his union rep if he wore the hat again raised a genuine issue of material fact over whether he faced an adverse employment action--a threat to his employment--for his expression.  The court affirmed summary judgment for the HR officer, because it found no evidence the officer caused or set in motion a series of acts by others that she reasonably should know would cause constitutional injury.  Nor were any of her actions reasonably likely to deter him from engaging in protected speech.  The court then applied Pickering balancing to determine whether the principal established a legitimate administrative interest in preventing the plaintiff's speech that outweighed the plaintiff's First Amendment rights.  While some of the training attendees may have been outraged or offended by the plaintiff's political expression, there was no evidence of actual or tangible disruption to school operations, beyond the inherent controversy of political speech.  The appellate court next applied the second prong of qualified immunity analysis to the principal's acts:  whether she violated clearly-established law.  The court noted that because the Pickering analysis requires a fact-sensitive, context-specific balancing of competing interests, the law will rarely be sufficiently clearly established to preclude qualified immunity.  But Supreme Court and 9th Circuit case law clearly establish that disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail  expression of that viewpoint at a public school, particularly where the only disruption was the effect the speech had on those who disagree with it because they disagree with it.  This is therefore one of the rare Pickering cases where the violation of the First Amendment was clearly established.    Finally, the court agreed with the district court that there was no evidence the district ratified the principal's conduct.

Implied Waiver of Government Claims Act Does Not Require Detrimental Reliance; Attorney for Public Entity May Waive Claim Requirement on Behalf of Entity; Deeming Public Contract Void Ab Initio Does Not Invalidate Contract's Alternative Claim Procedure

In California-American Water Co. v. Marina Coast Water District, published December 28, 2022, the First District Court of Appeal, Division 2 reversed summary judgment arising out of a contract dispute.  A water utility and a water district, among others, agreed on a plan to develop and construct a regional desalination project.  The parties entered into a Water Purchase Agreement, which provided for financing and constructing the facilities.  The district hired a person who worked on the draft WPA, but who was also a paid consultant for a participant in the agreement to advocate for the agreement.  The conflict in interest was discovered.  An attorney opined that the WPA was void as a result of the consultant’s financial interest in the project.  The parties engaged in months of negotiation and mediation to attempt to resolve the future of the project.  An outside counsel for the district e-mailed the parties, announcing that the parties should be free to pursue their legal remedies, and that the district had no objection to the parties being able to raise in court all issues and legal claims reasonably related to the issues and claims referred to in the parties’ pre-mediation correspondence.  The district nevertheless insisted the parties were obligated to comply with the dispute resolution procedure in the WPA.  It then refused to agree that the parties’ efforts complied with those procedures.  In light of that uncertainty, the utility submitted a Government Claims Act claim to the district.  The utility then filed a lawsuit.  In the lawsuit, the district argued that causes of action in the lawsuit for negligence under Government Code sections 815.2 and 815.4 were barred because the claim was deficient.  The utility filed amended complaints pleading that the WPA and the parties’ mediation agreement set forth alternatives to the Government Claims Act; and that the district had waived its rights under the Act.  The trial court granted the utility summary adjudication against Cal-Am on the grounds that the claim presented was insufficient to reflect the tort causes of action; that the district could not have waived its rights under the Act by entering into the WPA because it was void from inception; and that the utility had failed to raise a triable issue of fact on implied or express waiver of the Act.

The appellate court disagreed with the trial court.  The trial court erred in ruling that the district could not have impliedly waived the Act, because the utility did not show detrimental reliance since it presented a claim.  Detrimental reliance is an element of estoppel, but it is not an element of waiver.  The utility also alleged express waiver, based on the district’s attorney’s statements.  The trial court ruled that because only the board of the district had the power to waive the district’s right to notice under the Act, the attorney could not do so.  But that rule applies only to allegations of waiver by public officials.  An attorney for a party has implied authority to enter into procedural waivers.  The utility’s evidence created a triable issue of fact on whether the attorney had the authority to waive the utility’s right to statutory notice.  In addition, under Government Code sectiond 930.2 and 930.4, a local public entity may include in its contracts a procedural alternative to the statutory claim process; and if it does, that alternative procedure exclusively governs.  The WPA contained a detailed pre-litigation procedure.  The appellate court rejected the utility’s argument that the WPA was void ab initio, and thus the statutory claims process does not apply.  Exempting contracts later declared void ab initio from section 930.4’s exclusive governance clause negates the purpose of the statute.  It would also create confusion as to which claims procedure governed.  The mediation agreement also contained a dispute resolution procedure, which the utility contended it also complied with.  The trial court erred in concluding the tort claims the utility asserted fell outside the scope of the mediation agreement.

School District Did Not Violate Students' Free Speech Rights under First Amendment or California Law by Disciplining Them for Off-Campus Social Media Posts Targeting Fellow Students

In Chen v. Albany Unified School District, published December 27, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant school district and associated defendants.  A high school student created a private Instagram account to share memes, images, and comments with his close friends.  He allowed 13 people to follow his account.  He used the account to make cruelly insulting posts about various students in his school, including racist posts, including posts joking about lynching and slavery.  Another student made racist comments in the group, and “liked” offensive posts.  When one of the account’s followers showed posts in the group to students who had been depicted in a post with nooses, knowledge of the group’s contents spread throughout the school, causing great emotional upset and disruption.  Two of the account’s followers were physically assaulted.  The district voted to expel the group creator and the follower who posted racist comments.  Those students filed suits against the school district defendants under 42 U.S.C. section 1983, alleging violation of free speech rights under the First Amendment and California law, as well as violation of procedural due process.  The district court related those cases.  It granted summary judgment for the defendants, reasoning that the district defendants could properly regulate the students’ off-campus speech.

The court of appeals agreed.  The First Amendment’s protection of public school children’s speech is more limited than that of adult speech.  The speech of students in a school setting may be restricted if either it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities; or it collides with the rights of other students to be secure and to be let alone.  Even outside the school setting, the First Amendment rights of minors are not co-extensive with adults’.  That is especially true in connection with school activities.  Students do not have a First Amendment right to target specific classmates with vulgar or abusive language.  Without limiting any political viewpoint or other protected content, schools may insist on civil discourse in the school context.  Here, the First Amendment would not prevent a school from punishing the sort of speech at issue if it had occurred under the school’s supervision.  The content threatens the targeted students’ sense of physical, emotional, and psychological security.  The threat of disruption of school activities is equally obvious (and demonstrated here).  The central question is whether the off-campus nature of the speech places it outside of the school’s authority to regulate or discipline.  Although schools may regulate some off-campus student speech, their authority is diminished as opposed to on-campus speech.  The 9th Circuit has devised a three-factor test for determining whether off-campus speech bears a sufficient nexus to the school to allow school district regulation:  (1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school.  Under these standards, the group’s creator’s speech bore a sufficient nexus to the school to warrant disciplinary action by the school.  The student’s subjective intention to keep the account private is not controlling; the court must consider whether it was reasonably foreseeable that the speech would reach and impact the school.  Given the ease with which electronic communications may be copied or shown to others, it was foreseeable that the posts would ultimately reach the targeted students.  Once the privacy of the account was breached, the degree and likelihood of harm to the school from the speech was significant.  Because the speech caused serious or severe bullying or harassment targeting specific individuals, the school’s regulatory interests remained significant, and strongly implicated the school’s authority and responsibility to act in loco parentis in protecting students from maltreatment by classmates.  A failure to respond to the harassment might have exposed it to potential liability for failure to respond adequately to a racially hostile environment.  Because the student never contended that he was espousing a particular political ideology,  his claim that the school was somehow censoring the promotion of a disfavored ideological message rings hollow.  Although the other student’s involvement in the account was substantially more limited, his contribution properly subjected him to school discipline as well.  The court rejected the students’ arguments that the school violated their rights under the California Constitution and Education Code sections 48950 and 48907.  California’s free speech rights for students under those provisions do no extend further than their First Amendment rights.  The creator student’s claim of violation of procedural due process fails, because the student pursued an administrative writ under California law on that point and lost.  Claim preclusive bars him from relitigating that issue in the federal lawsuit.  His argument that a member of the administrative body was biased against him is governed by the same procedural due process standards under federal law as under state law.

Social Workers Were Not Entitled to Qualified Immunity for Acting with Malice, Oppression, or in Reckless Disregard of Parent's Rights

In Casey N. v. County of Orange, published December 23, 2022, the Fourth District Court of Appeal, Division 3, affirmed a jury verdict against the defendant county and two social workers in a 42 U.S.C. section 1983 suit brought by a parent.  Social workers investigated allegations that the plaintiff's minor daughter was sexually abused by her father, who was divorced from the mother.  One social worker stated in her report her opinion that the mother was emotionally abusing the daughter, and was feeding information or coaching information to the child as part of a family law dispute.  The second social worker, who replaced the first, filed a report stating she was unsure whether sexual abuse had taken place, but also recommended the petition allege emotional abuse by the mother.  The deputy county counsel dismissed the sexual abuse allegations before the dependency court, and replaced them with allegations of emotional damage or endangerment based on allegations the mother had influenced the child to make false sexual abuse claims.  The dependency court found the mother had knowingly caused the minor to make false allegations against the father.  The court granted the agency's request that the minor be removed from the mother and given to the father.  The mother signed a stipulation giving sole legal and physical custody of the minor to the father with visitation by the mother.  She later asserted she had been bullied into signing the stipulation under threat of having her parental rights terminated.  The mother sued the social workers and the county for violating her right to familial association by deceiving the juvenile court into removing the minor from her custody.  The jury found the social workers liable, found the county liable under a Monell theory, and awarded punitive damages against the social workers.

The appellate court ruled that the issue of the materiality of the social workers' statements--whether, but for the dishonest or misleading statements, the challenged action would not have occurred.  In a section 1983 case based on judicial deception, the court decides materiality in a summary judgment proceeding, but the jury determines it at trial.  The court further ruled that substantial evidence supported the verdict against the social workers.  There was medical and other evidence of sexual abuse that the mother's dependency court counsel did not present, because the sexual assault accusation was dismissed and the evidence would have been irrelevant.  The mother also testified she was prevented from offering the evidence at the disposition hearing because she was coerced into signing the stipulation.  The court ruled that the social workers were not entitled to qualified immunity.  The jury's finding that the social workers had acted with malice, oppression, or in reckless disregard of the mother's rights established that their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.  Further, federal case law holds that the doctrine of qualified immunity merges with the merits in a case alleging judicial deception in the procurement of a search warrant.  The court declined to rule whether this holding applied here.  Substantial evidence also supported the Monell liability finding against the county, based on an official policy or custom of using false or misleading evidence, or in failing to disclose exculpatory evidence, in reports, documents, and testimony to the juvenile court, as well as a failure to properly train social workers.

Because Convention Center Is an Extension of City, It Is Exempt from Labor Code Claim

In Allen v. San Diego Convention Center Corporation, published December 16, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court order denying class certification.  The plaintiff was a former employee of the defendant San Diego Convention Center Corporation.  She alleged eight Labor Code violation claims against SDCCC.  SDCCC demurred on the ground that it was exempt from liability for the alleged Labor Code violations because it is a public entity and a wholly-owned subsidiary and instrumentality of the City of San Diego.  The trial court agreed that SDCCC was a public entity for purposes of seven of the Labor Code claims.  The trial court then denied the plaintiff's motion for class certification, on the ground that the proposed class claims related to claims dismissed on demurrer.  The plaintiff appealed the denial of certification as a "death knell" order.

The appellate court agreed that SDCCC was a public entity for purposes of the Labor Code.  Governmental actors are protected from liability under the Labor Code, unless a statute specifically brings a public employee within its ambit.  The Labor Code provisions at issue in this case do not apply to public employers.  The undisputed facts establish that SDCCC is an extension of the City of San Diego, and thus is a public entity for purposes of the Labor Code violation.  The city's municipal code defines the city as including SDCCC.  The city appoints all of SDCCC's board members.  Upon dissolution, SDCCC's assets revert to the city.  SDCCC must publicly account for it s operations.  SDCCC was formed under the authority of state law, which grants cities the authority to construct convention halls.  SDCCC is therefore not an independent corporation; it is an agent and instrumentality of the city.