Government Liability Update

Government Code Statutory Immunities Are Not Jurisdictional; They Must Be Pleaded

In Quigley v. Garden Valley Fire Protection District, published July 15, 2019, the California Supreme Court reversed the lower appellate court's decision affirming a nonsuit.  The plaintiff was a firefighter who was ran over by a service truck while she was sleeping on the ground at a base camp. She alleged that the base camp was a dangerous condition of public property, because the sleeping area was not roped off and warning signs were not posted. The defendant fire district's answer asserted multiple affirmative defenses, including 11 asserting 17 specific immunities under the Government Claims Act.  One affirmative defense asserted all of the defenses and rights granted to the defendants under the entire Government Claims Act.  The answer did not specifically allege Government Code section 850.4, the immunity for the condition of firefighting equipment.  At trial, after the plaintiff's opening statement, the district moved for nonsuit based on section 850.4's immunity.  The plaintiff objected that the district had waived the immunity by not pleading it.  The trial court ruled that the immunity was jurisdictional, and so could not be waived.  It granted the nonsuit.  The appellate court affirmed.

The Supreme Court unanimously disagreed.  The question is whether the immunity is "jurisdictional" in the sense that it deprives the court of jurisdiction to hear the matter.  Such jurisdictional issues can be raised at any time, because waiver cannot give the court jurisdiction. Courts presume that statutes do not limit fundamental jurisdiction absent a clear indication of legislative intent to do so.  The court examined the Government Claims Act's statutes, and found no legislative intent that they be jurisdictional in that sense.  Instead, they are in the nature of affirmative defenses, which must be pleaded or forfeited.  The court of appeal cases that have deemed them jurisdictional do not support that conclusion.  The Government Code immunities limit the substantive liability of public liabilities, rather than the power of the courts to hear cases involving public entities.  The latter question was settled by the passage of Government Code section 945, which gives public entities the right to sue and be sued.  The Supreme Court disapproved court of appeal cases that deemed the immunities jurisdictional.  

The Supreme Court remanded to the court of appeal the question of whether the affirmative defense that encompassed the entire Government Claims Act was sufficient to plead section 850.4.  If that court concludes the affirmative defense is insufficient, the Supreme Court continued, the matter should be remanded to the trial court to determine whether it should exercise its discretion to amend the answer and allow the affirmative defense to be raised at trial.

[Pollak, Vida & Barer represented League of California Cities, California State Association of Counties, California Association of Joint Powers Authorities, California Special Districts Association and International Municipal Lawyers Association as Amici Curiae on behalf of Defendants and Respondents.]

Issues of Fact Defeat Summary Judgment for Officer Shooting Suspected Knife Wielder Without Warning or Identifying Himself

In Nehad v. Browder, published July 11, 2019, the 9th Circuit affirmed in part and reversed in part summary judgment granted in favor of an officer and his employing city.  A store worker had called 911 because a man showed him an unsheathed knife and acted incoherent.  The dispatcher put out a call that a man was threatening people with a knife.  The defendant officer arrived while the man was walking down an alley from the store to the street.  The officer drove down the alley with his high headlight beams on but without sounding his siren or putting on flashing lights.  The officer exited his vehicle as the man walked toward him.  The officer did not turn on his body camera.  Eyewitnesses differed on whether the officer told the man to drop it.  The officer did not recall identifying himself as a police officer or warning the suspect.  Five seconds after exiting his vehicle, the officer shot the man in the chest, killing him.  Investigators did not find any weapon in the alley, although they found a knife sheath.  When shot, the manwas carrying a blue metallic pen.  The officer initially stated that he did not see any weapons when he shot the man.  Five days later, after meeting with an attorney and viewing surveillance footage, the officer told investigators that the man was "aggressing" the vehicle, walking quickly toward it, and that the officer thought the man had a knife.  The district court ruled the officer's use of force was objectively reasonable, and that the officer was entitled to qualified immunity because the law was not clearly established that using deadly force under the circumstances violated the Fourth Amendment.  It also granted summary judgment on the man's family's Fourteenth Amendment claim, because there was no evidence that the officer acted with an intent to harm unrelated to a law enforcement purpose.  The court also granted summary judgment on all state law claims.

The 9th Circuit affirmed summary judgment on the Fourteenth Amendment claim, because there was no evidence that the officer had used force for any reason but self-defense.  But it concluded that there was a genuine dispute of material fact on whether the officer's use of force was objectively reasonable.  Viewing the facts in the light most favorable to the plaintiffs, there were issues over the officer's credibility, whether the suspect posed a danger to anyone, whether the severity of the crime warranted deadly force, whether the officer gave or the man resisted any commands, the significance of the officer's failure to identify himself or give any warnings, and the availability of less intrusive means to subdue the man.  Further, because the law clearly established that using deadly force under the circumstances here, viewing the facts in the light most favorable to the plaintiffs, violated the Fourth Amendment, the issues of fact prevented summary judgment on the ground of qualified immunity.  There was sufficient evidence of Monell liability to raise a genuine issue of fact on that as well.  The issues of fact defeated summary judgment on the state law causes of action.

Section 1983 Claim for Prosecution Based on Fabricated Evidence Accrues When Criminal Prosecution Terminates in Plaintiff's Favor

In McDonough v. Smith, published June 20, 2019, the U.S. Supreme Court reversed a district court's decision that a plaintiff's claim under 42 U.S.C. section 1983 for prosecution based on fabricated evidence was time-barred.  The plaintiff, a commissioner of a county board of elections, processed forged ballots.  He alleges he was unaware the ballots were forged.  He alleges that the prosecutor falsified affidavits, coached witnesses to lie, and orchestrated a suspect DNA analysis to link the plaintiff to the forged ballots, resulting in a grand jury indictment.  The plaintiff was tried in January 2012.  The allegedly fabricated evidence was used.  The case ended in a mistrial.  The case was tried again, with the evidence used.  The trial terminated in December 2012 with an acquittal.  The plaintiff asserted a constitutional claim under section 1983 for fabrication of evidence.  The suit was brought within the statute of limitations as measured from the acquittal date.  The district court concluded that the claim accrued when the plaintiff was arrested, because he was aware that the evidence was false and he had suffered a loss of liberty.

The Supreme Court ruled that the fabrication of evidence claim was analogous to a common law claim for malicious prosecution.  As with a malicious prosecution claim, the claim did not accrue until favorable termination of the criminal case.  That rule serves the policies of avoiding conflicting criminal and civil rulings, collateral attacks on criminal convictions through civil litigation, and requiring a plaintiff to bring suit against the person prosecuting him at the same time that the plaintiff is defending himself in the criminal action.

School District Was Entitled to Private Attorney General Fees for Enforcing Charter School Statutes

In Sweetwater Union High School District v. Julian Union Elementary School District, ordered published June 28, 2019, the Fourth District Court of Appeal, Division 1, affirmed an award of fees to the plaintiff school district under Code of Civil Procedure section 1021.5.  The plaintiff district alleged that the defendant district authorized a defendant charter school operator to operate defendant charter schools in the plaintiff's territory.  The trial court ultimately denied the plaintiff's petition for a writ of mandate directing the defendant district to revoke the defendant operator's charter, concluding that doing so would cause disruption for students of the charter schools.  But the trial court declared that the operator's operation at two of the charter school locations would be in violation of the Education Code, and enjoined operation of both locations.  The court then granted the plaintiff district's motion for attorney fees.

The appellate court affirmed the award of fees.  The parties did not request a statement of decision concerning the fee award, and the court did not issue one.  The appellate court therefore inferred all findings necessary to support the award were made.  The appellate court ruled that the trial court could have found the plaintiff district to be a prevailing party.  Even though the district did not succeed on all of its claims, it succeeded in obtaining declaratory and injunctive relief.  It could also have ruled that enforcement of charter school law was enforcement of an important right affecting public interest, that the ruling provided a significant public benefit by advancing the public interest in lawful operation of charter schools and the legislature's oversight objectives expressed in the charter school law, that the lawsuit was necessary to enforce the law, and that the financial burden made the fee award appropriate.  It could also have found that the amount awarded (the entire amount requested) was justified by the evidence the plaintiff district submitted.

Limited Success in Section 1983 Lawsuit Plus Inflated Fee Request Justified Trial Court in Denying Fee Request Entirely

In Guillory v. Hill, ordered published June 26, 2019, the Fourth District Court of Appeal, Division 3 affirmed a trial court order denying the plaintiffs in a 42 U.S.C. section 1983 case all of the fees they sought.  The plaintiffs sued for alleged overdetention after a search.  Plaintiffs sued multiple defendants.  Eventually one was left. The first trial ended in a directed verdict for the defendant.  The decision was reversed on appeal as to the section 1983 causes of action.  On retrial, the jury found for the plaintiffs, but awarded combined damages of $5,335.  The plaintiffs moved for $3.8 million in fees.  The trial court criticized the motion as poorly organized and supported by unclear evidence.

The appellate court ruled that two circumstances justified the denial of the fee motion in its entirety.  One was the limited success of the plaintiffs.  The plaintiffs sought millions of dollars in damages, and received a fraction of that.  The other was the inflated fees sought.  The trial court was within its discretion to determine that the plaintiffs' counsel made no effort to confine the fees sought to the issues on which the plaintiffs prevailed, and did not contend that the other issues were so intertwined that it was reasonable to recover on all of them.  

Supreme Court Overrules Williamson County; Federal Takings Claims Are Ripe at the Time of Taking without Compensation

In Knick v. Township of Scott, PA., published June 21, 2019, the U.S. Supreme Court reversed a district court decision and a Third Circuit decision dismissing a regulatory takings case as unripe.  The plaintiff, on whose land neighbors were buried, challenged an ordinance that required cemeteries to be kept open and accessible to the public.  The lower courts barred the suit based on Williamson County Regional Planning Comm'n v. Hamilton Bank, a 1985 Supreme Court case which held that property owners must seek just compensation under state law in a state court before bringing a federal takings claim under 42 U.S.C. section 1983 and the Fifth Amendment.

The Supreme Court held, 5-4, that Williamson County was poorly reasoned and should be overruled.  The court held that inverse condemnation occurs at the time property is taken without just compensation--not, as Williamson County held, when state law proves inadequate to provide just compensation.  Williamson County, in connection with another Supreme Court decision, San Remo Hotel v. City and County of San Francisco, created a "Catch-22" for property owners.  The owners had to pursue a state law inverse condemnation before suing in federal court; but if the state court ruled there was no taking without just compensation, the Full Faith and Credit Clause require the federal court to honor that ruling and bar the federal claim.  The majority found no reason to maintain the Williamson rule, and overruled the decision.  

Justice Kagan, joined by three justices, dissented that the majority had improperly interpreted the takings clause, and that the decision violated stare decisis.

Trial Court Properly Granted Conditional New Trial/Remittitur when Size of Verdict indicates Jury Punished Public Entity Employer

In Pearl v. City of Los Angeles, published June 18, 2019, the Second District Court of Appeal, Division 7 affirmed a trial court's grant of conditional new trial.  The plaintiff, an employee of the defendant city, put on evidence that one of his high-ranking managers doctored a photo to show the male plaintiff and a male subordinate embracing on a jet ski.  Another manager published the photo, making homophobic comments along with it.  The plaintiff argued that these activities led to a perception in the workplace that he was gay and encouraged harassment based on his perceived orientation.  Eventually the plaintiff became ill from stress, with lasting health effects.  The defendants denied any misconduct.  The plaintiff sued the city under FEHA for harassment and failure to prevent harassment.  The jury instructions did not include the CACI instruction charging the jury not to punish the public entity defendant.  The city's attorney agreed the instructions given were complete.  The plaintiff counsel's argument included comments asking the jury to "make change" at the city through its verdict. The city did not object to those comments. The jury awarded over $17 million, including $10 in past noneconomic loss and $5 million in future noneconomic loss.  The city moved for new trial.  It argued the damages were excessive.  The new trial motion did not challenge the absence of an instruction against punitive damages.  The trial court concluded that the evidence did not support $10 million in past noneconomic damages.  It found that the jurors intended to punish the city, based on the jury's reaction to what the court concluded was perjury from the defense witnesses as well as the plaintiff's counsel's argument.  It granted new trial unless the plaintiff accepted a remittitur of the past noneconomic damages from $10 million to $5 million.  The plaintiff accepted the remittitur.  The city appealed, contending that a complete new trial should have been granted.

The appellate court rejected the city's argument that the trial court could not grant remittitur because the error was not excessive damages.  The city contended that the error was a defective verdict, based on an improper award of punitive damages.  In granting remittitur, the trial court did not speculate as to the amount of damages that consisted of punitive damages.  Nor did it attempt to address an issue apart from damages, such as reapportioning fault.  Instead, it exercised its discretion as a trier of fact to determine the amount of reasonable damages for the past noneconomic loss.  The court also rejected the arguments that the improper closing and absence of an instruction against punishing the jury required an entire new trial.  The city waived those arguments by failing to object to the closing and certifying the jury instructions as complete.  Further, the trial court considered the punishment and improper argument in ruling that remittitur was the proper remedy.

Decision to Release 5150 Detainee Is Not Protected by Anti-SLAPP Law

In Swanson v. County of Riverside, published June 17, 2019, the Fourth District Court of Appeal, Division 1 affirmed a trial court's denial of a special motion to strike under the anti-SLAPP statute.  The plaintiffs sued the defendant county because the county released a Welfare & Institutions Code section 5150 detainee after evaluation under Welfare & Institutions Code section 5152.

The appellate court concluded that an evaluation under section 5152 is not speech protected by the anti-SLAPP statute.  It is not analogous to a peer review, which is protected.  The suit is for the county's act in releasing the detainee, not for a statement.  The appellate court declined to analyze the plaintiffs' chances for success.

Recission of Peace Officer's Promotion During Probationary Period Did Not Entitle Officer to an Administrative Appeal

In Conger v. County of Los Angeles, published June 14, 2019, the Second District Court of Appeal, Division 1 affirmed a trial court decision denying a writ petition to a deputy sheriff.  The petitioner received a probationary promotion from Sergeant to Lieutenant.  During the six-month probationary period, the sheriff's department informed the petitioner he was under investigation for events occurring before the probationary period.  The department gave the petitioner notice it was releasing him from his probation, based on an alleged failure to report a use of force when he was a sergeant.  The petitioner requested a hearing under Government Code section 3304(b), part of the Public Safety Officers Procedural Bill of Rights,  The county civil service commission denied the request.  The petitioner challenged the denial.  

The appellate court agreed with the trial court that the petitioner was not entitled to writ relief.  Section 3304(b) entitles an officer who has successfully completed the probationary period a hearing before any punitive action or denial of promotion on grounds other than merit is taken against him.  The appellate court ruled that the decision to rescind the probationary promotion and return the petitioner to his previous position was a denial of promotion, not a demotion or punitive action.  The promotion was not yet peronanemnt, and the employer was still evaluating whether the officer deserved the higher position.  The denial was on merit-based grounds, since the alleged failure to report would bear on the petitioner's qualifications to serve as a lieutenant.  The petitioner failed to show that his negative probation evaluation could lead to future adverse consequences.  The statute therefore did not entitle him to a hearing.

Prosecutor's Disclosure to Superiors of Lack of Probable Cause to Prosecute Defendant Is Protected under Whistleblowing Statute

In Ross v. County of Riverside, ordered published June 10, 2019, the Fourth District Court of Appeal, Division 1 reversed summary judgment in favor of the defendant county on the plaintiff's claims for violation of Labor Code section 1102.5 and the disability discrimination provisions of FEHA.  The plaintiff, a deputy district attorney, inherited a case from another attorney, who informed her superiors and the plaintiff that she believed the defendant was innocent and that the defendant's confession was coerced.  The plaintiff repeatedly informed his superiors that he believed the DA's office lacked probable cause to prosecute the defendant.  He sent evidence out for DNA testing, obtained results that exculpated the defendant, and turned the results over to defense counsel.  The DA eventually dismissed the charges against the defendant.  Meanwhile, the plaintiff underwent testing for suspected neurological and autoimmune conditions, and requested that he be accommodated by minimizing his stress at work and not assigning him new cases until his testing was complete.  The DA's office allegedly failed to accommodate him.  The plaintiff left his position, alleging constructive termination.  The DA's office eventually declared he had abandoned his job.  The trial court granted the county summary judgment on the grounds that the plaintiff could not establish he engaged in activity protected under section 1102.5 and that he could not establish he was disabled.

The appellate court ruled that the evidence, if credited by a trier of fact, showed that the plaintiff had disclosed information protected by Labor Code section 1102.5, subdivision (b).  That subdivision forbids an employer from retaliating against an employee for disclosing information to a government or law enforcement agency, or a person with authority over the employee, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.  Disclosing information to his superiors that he reasonably believed disclosed a violation or noncompliance with the federal and state law applying to criminal prosecutions and prosecutors is protected by subdivision (b).  That includes a prosecution that the disclosure reasonably believes violates the defendant's due process rights and a prosecutor's ethical duties under state law.  The appellate court did not determine whether there was a triable issue on whether the DA's office retaliated against the plaintiff based on the disclosure.  The appellate court also determined the evidence raised a triable issue of fact on whether the plaintiff was temporarily disabled at the time he requested accommodation.