Government Liability Update

State Controller Cannot Be Held Liable under Abuse of Process for Improperly Using Discovery Product to Conduct Audit

In Yee v. Superior Court (Thrivent Financial for Lutherans), published January 8, 2019, the First District Court of Appeal, Division 2 issued a writ directing the trial court to grant a motion for judgment on the pleadings.  The State Controller's Office initiated an audit of the real party insurance company's records.  The insurance company and Controller's Office filed cross-litigation concerning the audit.  The Controller filed a motion to compel production of records from the insurer sought under discovery.  The court granted the motion, allegedly after the Controller's counsel assured the court that the the information obtained in discovery would not be used to conduct the audit.  The Controller allegedly then used the records produced to pursue the audit.  The litigation was eventually dismissed by order of an appellate court.  The insurer then sued the Controller's office for abuse of process, alleging that Controller's Office employees used the discovery information to conduct the audit, in violation of court order and protective order.

The appellate court ruled that the lawsuit was barred by Government Code section 815.  Section 815 bars nonstatutory causes of action against public entities.  The central issue was whether the Controller's Office could be held vicariously liable under Government Code section 815.2, subdivision (a).  Section 815.2 provides for public entity respondeat superior liability for the acts or omissions of employees, but only if the act or omission would have given rise to a cause of action against the employee.  Under the facts of the case, no Controller's Office employee could be held liable for abuse of process.  The abuse was using the records in the audit.  Only the State Controller's Office, not its individual employees, had the power to perform the audit.

Court May Not Deny Qualified Immunity in Excessive Force Case on Ground That Freedom from Excessive Force is Clearly Established

In City of Escondido v. Emmons, published January 7, 2019, the U.S. Supreme Court, in a per curiam opinion, reversed a 9th Circuit decision holding that excessive force claims against two officers should be sent to trial.  The officers answered a domestic abuse call.  After the officers knocked on the apartment door but were unable to persuade those inside to answer the door for a welfare check, a man exited the apartment door.  One officer told the man not to close the door.  He closed it and brushed past the officer.  The officer stopped the man, took him quickly to the ground, and handcuffed him.  He turned out not to be the suspect.  The district court held that the officer who did not participate in the use of force was entitled to summary judgment, and the other officer was entitled to summary judgment based on qualified immunity.  In an unpublished opinion, the 9th Circuit reversed as to both officers.  Because the right to be free from excessive force was clearly established, the circuit court ruled, the officers were not entitled to qualified immunity.

The Supreme Court ruled that the 9th Circuit erred as to both officers.  As to the officer who did not participate in the use of force, the reversal as to him was unexplained and puzzling.  As to the officer who used force, the circuit erred in not defining the clearly-established right with specificity.  The court should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances. 

Despite Release to Complainants, Written Dispositions of Complaint against High School Coach Are Protected from Release under Public Record Act

In Associated Chino Teachers v. Chino Valley Unified School District, ordered published December 20, 2018, the Fourth District Court of Appeal, Division 2 reversed a trial court order denying an employee organization's writ of mandate to stop production under the California Public Records Act of the respondent district's written dispositions of two complaints against a high school volleyball coach for yelling at and belittling student athletes in public and holding practice at the coach's home.  After investigating the complaints, the district provided the written dispositions to the complainants.  A letter of warning and a letter of concern were placed in the coach's personnel file; the disposition letters were not.  The coach later resigned the coaching position.  A journalist made a CPRA request for documents demonstrating the results of the district's investigation.  The district informed the coach it intended to release the disposition letters unless a court order prevented release.

The appellate court ruled the trial court erred by denying the organization's petition for a writ stopping the release.  Although the records were released to complainants, that did not forfeit the right to assert the personnel and similar files exemption from release under the CPRA , or require the release of the documents to the general public.  That the same or like information in the dispositions is available elsewhere in the public domain does not forfeit the right to assert the records are confidential.  The coach's privacy interests in the letters outweighs any interest the public may have in viewing the insubstantial allegations and findings pertaining to the coach's actions in the coach's former position.  The letters constitute personnel or similar records, exempt from disclosure under Government Code section 6254(c) if release would be an unwarranted invasion of personal privacy.  Alternatively, the catch-all provision of Government Code section 6255, subdivision (a) applies.  The documents contain information about the coach subject to privacy issues:  investigations into allegations of misconduct.  Because the allegations were found to be groundless, and the alleged conduct was not serious, the public interest in disclosure does not outweigh the coach's privacy interest in the documents.

Impounding Vehicles Because Drivers Lacked California Driver's Licenses Violated the Fourth Amendment

In Sandoval v. City of Santa Rosa, published December 21, 2018, the 9th Circuit affirmed a district court's summary judgment rulings for plaintiffs and defendants in a case brought by two drivers whose vehicles were impounded by a defendant city or defendant county because the drivers had current or expired Mexican driver's licenses (and passengers with California driver's licenses) but did not themselves have California-issued driver's licenses.  The seizures were under California Vehicle Code section 14602.6(a)(1), which provides a police officer may impound a vehicle for 30 days if the vehicle's driver had never been issued a driver's license.  The statute did not define "driver's license."  The city and county interpreted the term to refer to a California-issued driver's license.  The district court granted the plaintiffs summary judgment in their monetary claims against the city and county for propounding policies that violated the Fourth Amendment.  It granted summary judgment for the defendants on the plaintiffs' claims under the Bane Act, Civil Code section 52.1.

The 9th Circuit had previously held that 30-day impounds under the statute are seizures for Fourth Amendment purposes.  The question was whether the impounds were reasonable under the Fourth Amendment.  The court ruled that under the circumstances, they were unreasonable warrantless seizures.  The "community caretaking" exception does not categorically permit impounding private property simply because a state law allows the impoundment.  Further, the exception would not apply past the point where the community caretaking function is discharged.  Once the drivers were able to provide a licensed driver who could take possession of the truck, the community caretaking function of preventing improperly licensed drivers from driving was discharged.  There was no dispute that the seizures were under city and county policies.  The defendants argued that the seizures could not support Monell liability because they were legal under state law.  The 9th Circuit avoided that issue by ruling that the statute, interpreted in harmony with Vehicle Code sections 310 and 100, a driver who had been issued a driver's license in a foreign jurisdiction for the type of vehicle seized has not violated Vehicle Code section 14602.6.  The defendants did not violate the Bane Act, however, because if the right at issue is not clearly delineated and plainly applicable under the circumstances of the case, specific intent to violate the plaintiff's rights--an element of the Bane Act claim--cannot be implied.  Because the 9th Circuit's ruling that an impoundment under the statute implicated the Fourth Amendment post-dated the seizure, the right violated was not clearly established and intent could not be implied.

 

Plaintiff States Cause of Action under 42 U.S.C. § 1983 for City's Failure to Apply Vehicle Sales Revenue to Unpaid Parking Tickets

In Modacure v. B & B Vehicle Processing, pubilshed December 21, 2018, the First District Court of Appeal, Division 5 reversed a trial court's dismissal after demurrer of a lawsuit challenging a city's application of vehicle sales proceeds.  The complaint alleged the city contracted with a private company to tow vehicles with more than five parking citations.  In 2010, one of plaintiff's vehicles was towed and sold due to $841 in parking tickets and boot fees.   All of the money was allegedly paid to the towing company. The city allegedly failed to use the sales revenue left over after towing and storage costs to pay off the tickets and boot fees, in violation of Vehicle Code section 22851.1.  Plaintiff was allegedly not given notice the tickets and fees were not paid.  In 2015, another of plaintiff's vehicles was towed due to $1244 in parking tickets and boot fees.  When plaintiff discovered that the parking tickets and fees from the first vehicle had not been paid off, she could not afford to recover the second vehicle.  She alleged a cause of action against the city under 42 U.S.C. § 1983.  The trial court sustained a demurrer to that cause of action, ruling that the plaintiff had failed to allege a constitutional basis for the claim.

The appellate court disagreed.  The complaint alleged that the plaintiff was denied equal protection and due process due to the city's alleged failure to enforce the statute.  The plaintiff had a due process interest in the disposition of the proceeds of her vehicle's sales.  She alleged that the failure to enforce the Vehicle Code section deprived her of due process.

Police Department and City Attorney Violated Officer's Attorney-Client Privilege, but Recusal of City Attorney's Office Not Warranted

In City of San Diego v. Superior Court (Hoover), published December 19, 2018, the Fourth District Court of Appeal, Division 1 issued a writ vacating a trial court order disqualifying a city attorney's office from defending the city in an employment lawsuit.  The real party in interest, a police detective, sued the city, her employer, alleging harassment and retaliation.  While that suit was pending, the attorney representing her in that lawsuit filed another suit against the city for another client, alleging the city failed to properly investigate a sexual assault and then covered the suit up.  An Internet news service referred to a police report that the service had obtained.  Internal Affairs investigated to determine if and how the news service had obtained a confidential police report.  IA interviewed the detective to see if she was the source of the leak. She was warned failure to answer could be treated as insubordination, punishable by termination.  She admitted accessing the report.  She was asked about her communications with her attorney.  Her union representative objected based on attorney-client privilege.  The detective started answering.  The rep again objected and advised the officer not to answer.  The investigators stopped asking about the communications.  Later that day, one of the investigators contacted the detective and told her the city attorney's office had concluded the privilege did not preclude questions about the detective's communications with her attorney as they related to the leaked police report.  She was ordered to return for a follow-up interview in eight days.  The attorney learned of the interviews, and threatened to move to disqualify the city attorney if the city asked the detective about their communications.  At the follow-up interview, the detective had an attorney provided by the police officers' association, and an attorney from the city attorney's office was present.  The detective said she learned of the second lawsuit from her attorney's group text message, and then called him on the teslphone about a different issue.  She admitted printing out the police report regarding the second case out of curiosity, and stated she then shredded it.  The investigators pressed the detective for details of what information the detective's attorney provided during their phone conversation. The deputy city attorney asked whether the second case's allegations were encompassed in the detective's case.  After the interview, the trial court granted the motion to disqualify the city attorney in the detective's harassment and retaliation action, on the grounds that the IA interview violated the attorney-client privilege and Rule 2-100 of the Professional Rules of Conduct, barring a lawyer from contacting a litigant known to be represented by counsel.

The appellate court agreed with the trial court that forcing the detective to divulge the contents of her conversation with her attorney violated the attorney-client privilege.  While the contents of the group text were not confidential communications and were not privileged, the detective's subsequent phone conversation with her attorney was protected.  The city erred by failing to apply ex parte to the court in the detective's lawsuit for a determination of whether the communications were protected by attorney-client privilege before resuming the interview and forcing the detective to speak about the attorney-client communications.  The appellate court also agreed that the Rules of Professional Conduct precluded the deputy city attorney from directly questioning the detective during the interview about matters concerning her lawsuit, without her attorney present and without that attorney's consent.  The deputy should have confined his participation in the meeting to advising the investigators.  But the appellate court, after reviewing the sealed transcript of the interview, concluded there was no reasonable likelihood that the misconduct would give the city an unfair advantage in the detective's suit.  Since attorney disqualification must be prophylactic rather than punitive, and disqualifying an entire city attorney's office should be done with caution, the disqualification order was reversed.

Jury Instruction in Sidewalk Maintenance Case to Disregard Design Elements Was Prejudicially Confusing

In Guernsey v. City of Salinas, published December 17, 2018, the Sixth District Court of Appeal reversed a judgment based on jury verdict in a pedestrian v. auto case.  A crosswalk on city property that runs across a driveway to a shopping center had faded, allegedly due to failure to maintain.  Next to the crosswalk was a strip of pink stamped concrete on private property that also ran across the driveway.  The stop sign for exiting drivers was on the pink strip instead of at the crosswalk.  Bushes next to the driveway limited drivers' vision.  The bushes were on private property.  The city had the power to order them trimmed, but did not.  An exiting driver hit the plaintiff pedestrian, seriously injuring him.  The plaintiff was in the crosswalk.  The driver considered the pink strip to be a crosswalk, and knew that there possibly had been a crosswalk where the faded lines were.  At the city's request, the court instructed the jury:  " “Plaintiffs have not alleged that the design of the Driveway created a dangerous condition. Instead, Plaintiffs have alleged that it was the City’s failure to maintain the crosswalk lines and the bushes that created a dangerous condition. [¶] To find that the Driveway presented a dangerous condition, you cannot rely on characteristics of the Driveway itself (e.g., the placement of the stop sign, the left turn pocket, and the presence of the pink cement). Although you can consider those elements of the Driveway when weighing whether or not the faded crosswalk lines and bushes created a dangerous condition, you cannot rely on those design elements of the intersection to find that a dangerous condition existed.” The court also instructed the jury that city property could be in a dangerous condition if adjacent property conditions, such as the pink strip or the stop sign location, exposed users of city property to a substantial risk of injury in conjuction with adjacent property. The jury found the driver and pedestrian at fault, but not the city.  The jury wrote on the verdict form that the city should paint the crosswalk.  The plaintiff contended that the trial court erred in giving the "design of the driveway" instruction.

 The appellate court ruled the instruction was erroneous.  The city contended that the design was subject to design immunity.  The plaintiff based the case on the failure to maintain the sidewalk.  The instruction went beyond informing the jury that the case was not based on the design.  It extended to conditions that were not on city property, and so could not be the subject of design immunity.  Telling the jury it could not "rely on" the elements of the driveway including the pink strip and bushes was legally incorrect, and conflicted with the instruction that it could consider conditions on adjacent property.  The conflict was hopelessly confusing.  The evidence, as well as the jurors' handwritten notation on the verdict form, showed that the error was prejudicial.

University Not Immune to Potential Liability for Failing to Prevent Mentally Ill Student from Attacking Fellow Student

In Regents of the University of California v. Superior Court (Rosen), published December 3, 2018, the Second District Court of Appeal, Division 7, on remand from the California Supreme Court, affirmed denial of the defendant Regents and university personnel's motion for summary judgment in a negligence case brought by a UCLA student who was stabbed in chemistry lab during a class by a fellow student.  Before the attack, the university received several indications that the attacker was having hallucinations, accused other students of insults that they did not make, and physically confronted one student.  The university moved him to a different dorm and required him to participate in counseling.  The plaintiff's experts opined that the university should have taken further action to address the disturbed student.  The university contended that it did not violate any duty of care to the injured student, and alternatively that it was immune from liability.  It challenged denial of its summary judgment motion by petitioning for writ relief.  The appellate court initially found no duty and granted the petition.  The California Supreme Court reversed, holding that universities owe a duty of reasonable care to students to protect them from foreseeable acts of violence in the classroom or during curricular activities.  It remanded the matter to the appellate court to determine the standard of care under the duty, whether triable issues of fact existed on breach of the duty, and whether the defendants were statutorily immune.

The appellate court held that the standard of care that applied was the reasonable person standard that generally applies to negligence cases, rather than the more limited standard applied to mental health professionals who fail to prevent their patients from attacking others.  The plaintiff must prove three elements to establish the university's vicarious liability under Government Code section 815.2 for its personnel's breach of the duty to protect students:  That the injury occurred while the plaintiff was engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services; that the university was aware of information that placed, or should have placed, it on notice that the perpetrator presented a foreseeable threat of violence to other students; and that the university failed to act with reasonable care in response to the foreseeable threat of violence.  The reasonable person standard of care is similar to that applied in K-12 school situations, although the degree of care may vary due to the different circumstances in a university, which deals with older students.  Based on the information the university personnel had before the attack, triable issues of fact exist on whether the student presented a foreseeable risk of violence and whether the university could have done more to prevent the attack.  The defendants are not immune under Government Code section 856, which immunizes decisions on whether to confine a person for mental illness.  The plaintiff did not contend that the university is liable for failing to confine the attacker, but rather that the school was negligent in its behavior toward the attacker, including failure to use the intervention techniques that were available to the school under its existing policies and procedures.  Discretionary immunity under Government Code section 820.2 also did not apply.  The  immunity applies only to policy and planning decisions.  The plaintiff did not challenge the school's policies and procedures, but rather how those policies were implemented.

Simultaneously Mailing Notice and Posting It upon Affected Property Satisfied both Ordinance and Due Process

In Rasooly v. City of Oakley, ordered published November 21, 2018, the First District Court of Appeal, Division 5 affirmed a Code of Civil Procedure section 1094 motion for judgment on a writ petition based on the petitioner's failure to exhaust administrative remedies.  In 2015, the city red tagged a vacant industrial building the petitioner owned.  The petitioner administratively appealed the 2015 notice to the city.  The city rejected the appeal.  The petitioner then petitioned the court for a writ of mandate to set aside the notice.  After settlement negotiations, the city agreed to rescind the 2015 notice, and the petitioner was to do required work by April 2017.  Based on this understanding, the city requested dismissal of the petition.  Despite e-mail correspondence between the city and the petitioner, the petition was not dismissed and the work was not done.  In March 2017, the city issued a new notice that the property be repaired or demolished.  The city both posted the notice on the property, and mailed it to a post office box the county tax rolls listed as the address for petitioner concerning the property.  The mailing was returned undelivered.  In April 2017, after the 20-day period for the administrative appeal of the 2017 notice passed, the city notified the petitioner's attorney of the 2017 notice.  The next day, the attorney filed an amended petition for writ of administrative mandate challenging the 2017 notice.  The petitioner contended that he did not receive actual notice of the 2017 notice, and that the service did not comply with the International Property Maintenance Code, incorporated into the city's municipal code by reference.

The appellate court agreed with the trial court that the petitioner failed to exhaust his administrative remedies by timely administratively appealing the 2017 notice.  It was undisputed that the petitioner did not receive actual notice, because he did not visit the property while the notice was posted and did not collect his mail at the specified address for at least 30 days.  The IMPC provides that notice is to be served personally, mailed by certified or first-class mail to the owner's last known address, or, if the mailed notice is returned undelivered, posting the notice on the property.  The petitioner contended that this provision required the city to first mail the notice, and then post the notice only after receiving it back undelivered.  The appellate court interpreted the provision as providing a hierarchy of preferred means of notice.  It did not forbid simultaneously posting the notice and mailing it.  Otherwise, waiting for the letter to come back undelivered would deprive property owners of the chance to file a timely administrative appeal. The service also did not violate due process.  Due process does not require actual receipt, only a means reasonably calculated to give an interested party actual notice and an opportunity to respond.

If Law Enforcement Agency Induced Family's Detrimental Reliance on Search Efforts, It Owed Duty to Carry Out Search with Due Care, but Did Not Violate the Constitution

In Arista v. County of Riverside, published November 20, 2018, the Fourth District Court of Appeal, Division 2 reversed in part and affirmed in part a trial court decision sustaining a demurrer without leave to amend and dismissing an action against the defendant county.  According to the complaint's allegations, the plaintiffs' decedent set out mountain biking one morning in light clothing.  He intended to return early that afternoon.  In the early evening, the decedent's wife contacted the decedent by cellphone.  The decedent stated that he had been injured in an accident, but was returning home.  He sounded disoriented and confused.  The wife called 911.  The operator instructed her to stay home and wait for law enforcement.  First city police, and then a sheriff's deputy came to the home.  The deputy had the cellphone company ping the decedent's phone.  The location was near the decedent's original destination on the mountain.  The company had personnel working in the area.  The deputy asked the company to have its personnel be vigilant for the decedent's location.  At 10 p.m. a sheriff's lieutenant arrived at the home.  He identified himself as the "Incident Commander" for the case.  He had no search and rescue training.  He allegedly told the deputy that he believed the decedent was having an affair, and questioned why law enforcement was involved.  The lieutenant told the wife that the sheriff's department would start the search in the morning.  When the wife asked the chances of the decedent dying of hypothermia, the lieutenant replied that the decedent was a grown man and could take care of himself.  The department had a team with all-terrain vehicles that could have been dispatched to search for the decedent, but were not.  Deputies with sedan-type vehicles were assigned to watch the trailheads.  The department allegedly told the wife not to initiate any search.  Nevertheless, the family organized itself into a search team and began searching on foot at 3:45 a.m.  In the morning, a volunteer who worked with the sheriff's department searched for the decedent, and found his body on a fire access road.  He had died of hypothermia.

The appellate court held that based on those allegations, the complaint stated causes of action against the county for wrongful death, negligence, and negligent infliction of emotional distress.  Police officers may owe a duty to provide affirmative assistance if they enter into a special relationship with a member of the public.  A special relationship may be found when the state, through its agents, voluntarily assumes a protective duty toward a member of the public and undertakes actions on behalf of that member, inducing reliance.  One who voluntarily comes to the aid of another is under a duty of due care in performance, and may be held liable in negligence if failure to exercise due care increases the risk to the person or if reliance on the undertaking causes harm.  The court concluded that the sheriff's department's alleged actions showed that they undertook the responsibility of rescuing the decedent.  They induced reliance on their actions, as shown by the allegation that the family did not undertake its own rescue efforts until the lieutenant told the wife the department would not begin searching until morning.   The appellate court affirmed, however, the demurrer as to the Monell cause of action under 42 U.S.C. section 1983.  Monell liability requires facts showing deliberate indifference.  The complaint did not plead any such facts.  Because the plaintiffs did not show how they would amend the complaint to show deliberate indifference, the trial court properly denied leave to amend as to that cause of action.