Government Liability Update

Individual School Districts May Not Require COVID-19 Vaccination

In Let Them Choose v. San Diego Unified School District, published November 22, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court judgment determining that the defendant school district's COVID-19 requirements were preempted by state law.  The district adopted a "Vaccination Roadmap" requiring students 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities.  Unvaccinated students in this group were involuntarily placed on independent study.  A nonprofit corporation and the parent of a 16-year-old student filed complaints challenging the Roadmap.  The cases were consolidated.  On a motion for judgment, the trial court ruled the district's COVID-19 immunization requirements preempted.

The appellate court agreed.  Health and Safety Code section 120335 provides that a school shall not unconditionally admit students who have not been vaccinated for 10 listed diseases.  It also requires vaccination for any other disease deemed appropriate by the State Department of Public Health, after taking into consideration the recommendations of several medical groups.  In 2015, the Legislature considered whether vaccination should be mandated on a school district by school district basis.  A bill analysis explained that a statewide standard was preferred.  Cal. Code Regs., tit. 17, section 6025 provides that a school shall unconditionally admit or allow continued attendance to any pupil who has provided documentation for each immunization for listed diseases.  The Roadmap is preempted by these provisions because it both contradicts state law (conflict preemption) and enters a field already occupied by state law (field preemption).  By creating a comprehensive state procedure to determine the compulsory vaccinations for school attendance, the statute by negative-but-necessary implication provides that students who comply with state immunization requirements (and other eligibility rules) are entitled to attend schools, and that districts are not allowed to add their own vaccine mandates.  The Department of Public Health interprets the statute the same way in regulation 6025.  The court deferred to this agency interpretation.  The regulation enters a field the state has fully occupied, because the Legislature has covered the matter fully and completely, defining the who, what, when, and where of compulsory student vaccination, leaving districts no discretion in the matter.  The court rejected the multiple arguments the district made otherwise.

State Manual Provision Requiring Social Worker to Make Necessary Collateral Contacts with Persons Who Have Knowledge of Child's Condition Does Not Create Mandatory Duty

In Thompson v. County of Los Angeles, ordered published on November 16, 2022, the Second District Court of Appeal, Division 8 affirmed an order dismissing a lawsuit after demurrer was sustained without leave to amend.  The plaintiff's four-year-old son fell at his school's playground, fracturing his arm.  The child had a developmental delay and was nonverbal.  The parents took the child to a doctor two days after the fall.  The doctor did not diagnose the fracture as abuse.  The principal at the son's school called the police and reported physical abuse of the son by an unknown party.  The defendant county's Department of Children and Family Services investigated the son's injury.  A department social worker reported that when she asked the son who injured him, the son pointed to his father.  The social worker concluded the child was at risk of harm, and took him into protective custody.  A juvenile court found prima facie evidence the son was subject to detention under Welfare & Institutions Code section 300.  After a forensic child abuse expert reported the injury could have been an accident, the juvenile court dismissed the department's petition and released the son to his parents.  The mother sued the county for negligence per se and intentional infliction of emotional distress.  The trial court sustained the demurrer and dismissed the action with prejudice, concluding that the plaintiff did not allege violation of a mandatory duty.

The appellate court concluded the trial court correctly sustained the demurrer.  Under Government Code section 815.6, a public entity may be held liable for violating a mandatory duty where an enactment creates an obligatory duty.  Liability may not be based on an enactment that creates a discretionary or permissive duty, or that requires the entity or employee to perform a function that involves the exercise of discretion.  The plaintiff alleged that a provision of the Child Welfare Services Manual of Policies and Procedure requiring social workers to make “necessary collateral contacts” with people “having knowledge of the condition” of children subject to allegations created a mandatory duty for the social worker to speak to the child's doctor.  Assuming (without deciding) that the provision is a regulation with legal force, the provision is discretionary.  The county must exercise discretion to determine what constitutes a "necessary" collateral contact.  Many people may have knowledge of a child's condition.  Deciding whom to deem a necessary contact requires balancing child safety, family preservation, and limited time and resources.  The provision does not create a mandatory duty to contact particular individuals.

Officers Were Not Negligent in Using Less-than-Lethal Weapons on Suicidal Suspect after Extended Negotiations

In Villalobos v. City of Santa Maria, ordered published November 16, 2022, the Second District Court of Appeal, Division 6 affirmed summary judgment in favor of the defendant city and its police officers.   Officers responding to a report of a suspicious person with a knife saw the plaintiff's decedent standing in a road holding a knife with a long blade.  The officers ordered the decedent to drop the knife.  The decedent held the knife to his own throat.  He pointed, gesticulated, and appeared upset.  The police attempted to negotiate with him for 42 minutes.  Eventually, without warning, the officers deployed less-than-lethal beanbag rounds and 40 mm rubber projectiles against the decedent.  They were 30-40 feet from the decedent.  The decedent saw the officers taking aim, and made a "go ahead" gesture.  The decedent began jumping up  and down and stabbing himself in the abdomen with the knife.  He slashed his own throat with the knife.  He then charged full speed toward the officers, the knife in his right hand.  The officers fired several rounds of live ammunition at the decedent.  He fell a few feet from the officers.  He died of multiple gunshot wounds.  Based on the totality of the circumstances, the trial court found that the officers were not negligent, and that no reasonable juror could find that the police acted unreasonably.  On appeal, the plaintiff conceded that the shooting became reasonable at some point, but that the officers were negligent in their pre-shooting conduct, resulting in the decedent's suicidal assault with the knife.

The appellate court agreed with the trial court.  The officers were not obliged to let the decedent go.  They could use reasonable force to disable him.  The fact that the less-than-lethal force was unsuccessful is not the reason deadly force was needed.  Viewing the facts in the light most favorable to the plaintiff, no reasonable juror could find that officers were negligent or had acted unreasonably. The officers patiently waited approximately 40 minutes before resorting to less-than-lethal weapons.  The decedent charged the officers in an apparent attempt to commit "suicide by cop."  That the officers did not use alternatives to deadly force did not raise a triable issue on negligence.  Officers are not required to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.

Constructive Notice That Employee Is Sexually Abusing Students Is Sufficient for Negligence and CANRA Causes of Action against School District, but Not for Title IX and Education Code Section 220 Claims

In Roe v. Hesperia Unified School District, ordered published November 4, 2022, the Fourth District Court of Appeal, Division 2 reversed dismissal of a case after a demurrer was sustained without leave to amend.  An elementary school custodian allegedly molested multiple six-year-old students.  The plaintiffs sued the school district, alleging negligence in supervising the students and the custodian; negligent hiring and retention; negligence per se; violation of Title IX; failure to perform mandatory duties under CANRA, the mandated reporter act; and sex discrimination in education in violation of Education Code section 220.  The trial court sustained the district’s demurrer to the complaint, on the ground that the complaint failed to allege that the district had actual knowledge of prior acts of abuse by the custodian, or that it had actual knowledge that the custodian was abusing the plaintiffs.

The appellate court held that the complaint adequately pled causes of action against the district.  The district may be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising, and retaining a school employee who sexually harasses and abuses a student.  The negligence standard is “knew or should have known.”  Therefore, actual knowledge that an employee is prone to harming students, or is actually harming students, is not necessary.  Constructive notice is sufficient.  Case law applying an actual knowledge requirement when imposing negligence liability for a third party’s sexual abuse of children deal with non-school settings.  The complaint adequately alleged facts that would show constructive knowledge.  The CANRA cause of action also does not require actual knowledge, because it imposes a duty on mandated reporters to make a report when the reporter “knows or reasonably suspects” a child has been the victim of child abuse.  Reasonable suspicion does not require certainty. A breach of CANRA can support a negligence per se cause of action.  It would be objectively reasonable for persons in the position of the school’s employees who saw the conduct alleged in the complaint to reasonably suspect that the custodian was sexually abusing the plaintiffs.  The trial court properly dismissed the causes of action under Title IX and Education Code section 220, however; those provisions impose liability for a teacher sexually harassing a student only when an official at the district with authority to impose corrective measures on the district’s behalf has actual notice of the misconduct and is deliberately indifferent to it.

Public Hospital Immune from Liability for Employee's Alleged Sexual Abuse of Minor Mental Patient

In State Department of State Hospitals v. Superior Court (Jane Doe), published November 2, 2022, the First District Court of Appeal, Division 5 issued a writ directing a trial court to sustain the petitioner department's demurrer without leave to amend.  The real party plaintiff alleged that between 1997 and 1999, when she was a minor and a ward of the state confined at a state hospital, she was sexually assaulted by a department counselor.  She sued the department for negligence, negligent supervision/training/hiring/retention, sexual battery, assault, and statutory civil rights violations.  The department demurred to the complaint, based on Government Code section 854.8, subdivision (a)(2)'s immunity for injuries to mental patients.  The trial court concluded that section 854.8's exception for liability under Government Code section 855 (failure to provide adequate or sufficient equipment, personnel, or facilities required by statute or regulation) applied.  The trial court reasoned that Government Code section 815.2, which imposes vicarious liability on public employers for their employees' acts and omissions, provides minimum personnel standards.  It overruled the demurrer as to all causes of action except negligent supervision/training/hiring/retention, and granted the plaintiff leave to amend that cause of action to bring it within the scope of the exception to section 854.8.

The court of appeal disagreed with the trial court's reasoning.  Section 854.8 provides public entities broad immunity from liability for injuries suffered by an inpatient of a mental institution.  The immunity prevails over all liability provisions of the Government Claims Act, with the exception of the sections expressly described in the statute as exceptions.  The plaintiff relied on the exception for section 855.  Section 855, subdivision (a) imposes liability only when a statute or regulation sets forth a specific standard that gives the public medical facility clear notice as to the minimum requirements with which it must comply.  The trial court erred in ruling Government Code section 815.2 imposes minimum personnel standards triggering liability under section 855.  Section 815.2 does not require any public entity to provide adequate or sufficient equipment, personnel or facilities.  Further, section 815.2 is not one of the statutes listed in section 854.8 as an exception to the statute's immunity.  Section 815.2 is merely a general liability provision of the Act.  It is trumped by the specific immunity provision of section 845.8.  The plaintiff contended she could amend her complaint to allege the department violated other statutes and regulations, including the mandated reporting statute and regulation.  But neither the statute nor the regulation prescribes minimum standards for equipment, personnel, or facilities; and the plaintiff did not indicate she could allege those provisions were violated or proximately caused her injury.  None of the other regulations plaintiff contended were violated provide the requisite specific minimum standards.  The appellate court overruled its previous decision in Baber v. Napa State Hospital (1989) 209 Cal.App.3d 213 that similar regulations supported liability under section 855.  The court instead followed Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, which requires that statutes or regulations impose specific minimum standards to support section 855 liability.

Civil Code Section 51.9 Does Not Create Statutory Cause of Action against Public Entities for Sexual Harassment; Treble Damages Provision of CCP Section 340.1 Is Not Retroactive and Does Not Apply to School Districts

In K.M. v. Grossmont Union High School District, published October 25, 2022, the Fourth District Court of Appeal, Division 1 affirmed a judgment after jury trial.  The plaintiffs alleged their high school drama teacher sexually abused them.  The causes of action included one against the defendant district under Civil Code section 51.9.  The trial court sustained the district’s demurrer to this cause of action without leave to amend.  The case proceeded to trial against the district on negligence claims.  The jury awarded damages, and apportioned fault 60% to the teacher and 40% to the district.  The plaintiff appealed the ruling on section 51.9.  While the appeal was pending, Code of Civil Procedure section 340.1 was amended to add a provision for treble damages against parties that covered up childhood sexual abuse.  On appeal, the plaintiff contended that under this provision it was entitled to treble damages against the district.

The appellate court concluded that Code of Civil Procedure section 340.1’s treble damages provision is neither retroactive nor applicable to public school districts.  In addition to the treble damages provision, the amendment to section 340.1 in Assembly Bill 218 extended the statute of limitations for childhood sexual abuse and provided a three-year revival period.  The plaintiffs contended that all of AB 218’s provisions, including the new treble damages provision, apply retroactively.  The language of the treble damages provision is silent as to retroactivity, and applying the tests for when statutes are to be interpreted as retroactive, as well as review of the legislative history, supports the conclusion that the provision applies only prospectively.  The court also agreed with two prior appellate decisions (both currently under review by the California Supreme Court) that the treble damages provision is a punitive damages provision that is barred by Government Code section 818, which immunizes public entities from punitive damages.  The court analyzed the treble damages provision and concluded that the damages are punitive rather than compensatory.  The appellate court further upheld the trial court’s ruling that Civil Code section 51.9, together with Civil Code section 52, do not create a statutory cause of action against public entities.  Civil Code section 51.9 renders providers of business services liable for sexual harassment of customers.  The court applied the tests for statutes that create causes of action against public entities, and concluded that a public entity is not a “person” under section 51.9.  Although the statute mentions “teacher” as a type of business relationship to which the statute applies, both public and private entities can employ teachers.  Further, applying section 51.9 to school districts would affect their ability to function by diverting funds needed for education.  Section 52, which provides remedies for violation of section 51.9, does not create a stand-alone cause of action.  Finally, Government Code sections 815.2 and 820, which impose vicarious liability upon public entities for their employees’ violation of duties, do not support imposing section 51.9 or 52 liability upon school districts.

Officers Do Not Violate the Fourth Amendment Merely by Being Present when Fellow Officers Use Deadly Force

In Peck v. Montoya, published October 18, 2022, the 9th Circuit court of appeals affirmed in part and reversed in part a district court’s denial of a summary judgment motion, based on qualified immunity, brought by defendant deputies in a 42 U.S.C. section 1983 case.  Deputies responded to a 911 call that a man was acting erratically and had threatened to shoot a person.  The deputies formed a perimeter around the suspect’s house and watched him through a large window.  The suspect was visibly agitated and continued to act erratically, taunting the deputies about shooting him.  A deputy observed a holstered revolver lying on the couch.  The deputy alerted the other deputies.  In response, the suspect began yelling, “I’ll show you my gun!  You wanna see my gun?”  Another deputy warned the suspect not to go near the gun.  According to the deputies, the suspect began moving toward the gun, bent over, reached for, and grabbed onto the gun.  As soon as he did so, one deputy began firing at the suspect through the window.  Another deputy said he began firing when the suspect raised the gun toward the other deputies.  A neighbor who witnessed the interaction, however, testified that the suspect was moving away from the gun several seconds before the shooting.  According to the suspect’s wife, when she reached her husband after the shooting, she did not see a gun in his hands or near his body; the gun was ultimately found unloaded and holstered under the coffee table.  A ballistics expert concluded that the wounds did not support one of the shooting deputy’s version of the story.  The suspect’s wife sued the deputies for use of excessive force in violation of the 4th Amendment and deprivation of a familial relationship in violation of the 14th Amendment.  The district court denied summary judgment on both claims for all defendants.  The defendants brought an interlocutory appeal.

The 9th Circuit affirmed denial of summary judgment on the 4th Amendment claim as to the shooting deputies.  On an interlocutory appeal from denial of summary judgment based on qualified immunity, the appellate court has no jurisdiction to entertain arguments that the evidence does not support the district court’s finding of a genuine issue of fact.  Here, the district court found a genuine issue of fact on whether the suspect was moving away from the gun when the deputies fired.  Resolving that issue against the defendants, it was clearly established that firing at an unarmed man who, although in the presence of a gun, never picked it up and in fact was moving away from it when shot, was excessive under the 4th Amendment.  The court reversed denial of summary judgment on the 4th Amendment claim for the deputies who did not fire.  An actor may be deemed to have caused a plaintiff to be subjected to a constitutional violation, and thus to be an integral participant in the violation, only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others that the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.  The other deputies did not meet that standard simply by being present at during the unplanned shooting.  Finally, all of the deputies were entitled to qualified immunity to the wife’s 14th Amendment familial relationship claim.  The law was not clearly established that a spouse (as opposed to a parent or child) could assert such a claim.  Further, even under the law relating to parent and child claims, the claim here failed.  Under the circumstances here, requiring a snap judgment under escalating circumstances, the deputies use of deadly force did not “shock the conscience” because the deputies did not shoot the suspect for any purpose other than their (possibly mistaken) perception of the need for self-defense.

Hotel Did Not State Causes of Action against Public Entity for Inverse Condemnation or Nuisance Based on Railway Construction That Disrupted Hotel Operations

In Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority, published October 5, 2022, the Second District Court of Appeal, Division 8 affirmed judgment in favor of the defendant authority after demurrer and motion for judgment on the pleadings.  The plaintiff owns the Bonaventure Hotel in downtown Los Angeles.  The only access to the hotel's parking garage and loading dock, and its main guest/invitee drop-off and pick-up point, is on Flower Street.  The authority's Regional Connector Transit Project runs along and under Flower Street, including under the hotel's location.  Although much of the project's tunnel is being built using an underground tunnel boring machine, which is less disruptive to surface traffic, the project called for a portion of the tunnel being built by the more disruptive cut-and-cover method, due to structural aspects of the street in the area. In 2012, the plaintiff sued under CEQA to halt construction of the project, challenging the Environmental Impact Report for the project.  The plaintiff lost the lawsuit, and the result was upheld on appeal.  In 2016, construction began, and the plaintiff instituted this lawsuit alleging causes of action against the authority for inverse condemnation and nuisance.  The trial court sustained a demurrer without leave to amend to the fourth amended complaint's cause of action for inverse condemnation.  It then granted a co-defendant's motion for judgment on the pleadings--which the authority joined--for nuisance, again without leave to amend.

The appellate court affirmed the resulting judgment.  The inverse condemnation action was based on an intangible intrusion theory.  This theory requires an intrusion that places a burden on the property that is direct, substantial, and peculiar to the property.  Such intrusions have been recognized only in limited circumstances.  The plaintiff asserted two types of intrusion.  The first was impairment of right of access.  Only an unnecessary and substantial temporary interference with rights of access during construction is actionable.  The plaintiff's argument that the use of cut-and-cover rather than the less-disruptive TBM method was barred by claim preclusion, since the previous CEQA litigation resolved the issue.  The plaintiff attempted to avoid claim preclusion by arguing that the method of cut-and-cover used caused unreasonable and unnecessary disruption.  But the construction causing traffic detours interfering with ingress and egress were the type of temporary interference from street construction that the law deems not unreasonable.  Traffic detours and delays are not such direct and substantial burdens peculiar to the hotel as would meet the legal standard:  not far removed from a physical intrusion.  The second theory was excessive noise and dust.  The complaint did not sufficiently plead the intrusion the hotel suffered was unique, special, or peculiar in comparison with other stakeholders in the area.  The plaintiff failed to explain on appeal how the complaint could be amended to save it from demurrer.  The complaint also failed to plead sufficient facts to state a cause of action for nuisance, because it failed to plead facts showing that the seriousness of the harm the hotel suffered outweighed the social utility of the project.  Further, Civil Code section 3482 barred the cause of action.  Under section 3482, nothing done or maintained under the express authority of a statute can be deemed a nuisance.  Public Utilities Code section 30631 provides that the authority may construct rail lines, stations, and any other facilities for rapid transit services, under or over public streets.  The complaint on its face pleaded facts sufficient to invoke section 3482.

Whether Mother's Knowledge of Baby's Death and Request for Autopsy Established Accrual of Medical Malpractice Claim Is Issue of Fact

In Kernan v. Regents of the University of California, ordered published September 20, 2022, the First District Court of Appeal, Division 4 reversed summary judgment for the defendant Regents.  On November 4, 2016, the plaintiff went to the defendants' hospital for a procedure to rotate her healthy fetus to a head-first position.  There was no indication of any problem.  Later that night, after discharge, the plaintiff could not feel any fetal movement.  The next day, she returned to the hospital.  Doctors informed her that day that there was no fetal heartbeat, and she had suffered an interuterine fetal demise.  They told the plaintiff they could not determine the etiology of the death, and that nothing in the literature indicated an association between the procedure performed and fetal demise.  Per medical records, the plaintiff debated that day whether to have an autopsy performed. Her doctors explained that autopsies are often unsuccessful in establishing the underlying cause of the fetal death, although they can provide peace of mind.  The plaintiff denied discussing an autopsy that day.  That day, the doctors induced labor.  The plaintiff delivered a stillborn baby on November 7, 2016.  A doctor told the plaintiff an initial examination of the delivered baby, placenta, and did not show indicators as to why the baby died.  At some point after the delivery, the plaintiff ordered an autopsy.  A doctor met with the mother on July 10, 2017 to discuss the autopsy results.  The doctor told the plaintiff her case had been discussed during a mortality and morbidity conference at the hospital, but the doctor refused to answer the plaintiff's questions about what was said.  The plaintiff states that during this meeting, she first suspected medical negligence caused the death.  She served notice of intention to sue on November 6, 2017, and filed suit on February 2, 2018.  The trial court granted summary judgment on the ground that the lawsuit was filed outside the one-year statute of limitations under Code of Civil Procedure section 340.5.

The appellate court ruled that the date of accrual of the medical malpractice action was an issue of fact.  The statute of limitations began running when the plaintiff suspected or should have suspected that her injury was caused by wrongdoing.  Based on the notice of intent she served, which extended the statute of limitations 90 days, the plaintiff's action was timely if accrual was on or after November 6, 2016.  The defendants contended that the cause of action accrued on November 5, 2016, when the plaintiff learned of the fetus's death and records indicated she discussed an autopsy.  The evidence did not establish without dispute that the plaintiff subjectively suspected negligence that day.  The records state that the plaintiff was interested in an autopsy but was undecided.  The plaintiff herself denied discussing an autopsy that day.  Further, in light of the doctors' discussion with the plaintiff, a reasonable trier of fact could conclude the plaintiff discussed an autopsy to seek closure and obtain information, not because she subjectively suspected wrongdoing.  Further, the plaintiff remained under the doctors' care until she delivered the fetus on November 7.  A fact trier could conclude that the plaintiff had not lost trust in her doctors at that point.  On the objective prong, reasonable minds could differ on whether the events of November 5 the plaintiff should have suspected the defendants' wrongdoing on November 5, given that the doctors did not suspect wrongdoing, and the autopsy report corroborates the plaintiff's understanding that fetuses sometimes die in utero for unknown reasons.

Police Agency's Vehicle Pursuit Policy That Does Not Meet the POST Minimum Annual Training Hours Requirement Cannot Immunize Agency

In Flores v. City of San Diego, published September 15, 2022, the Fourth District Court of Appeal, Division 1 reversed summary judgment granted to the defendant city.  A motorcycle operator died while being pursued by police.  The operator's survivors sued the city for wrongful death.  The city moved for summary judgment based on the immunity under Vehicle Code section 17004.7.  Section 17004.7 immunizes public agencies from liability under Vehicle Code section 17001 if the agencies satisfy the statutory requirements for promulgating, adopting, and training officers on a vehicular pursuit policy.  The statute requires "regular and periodic training," which the statute defines as complying, at a minimum, with the training guidelines established pursuant to Penal Code section 13519.8.  Penal Code section 13519.8, in turn, authorizes the Peace Officers Standards and Training (POST) Commission to set standards pertaining to state-wide training of officers in the handling of high-speed vehicle pursuits.  The defendant department used a 25 minute, 50 second video to train officers on its pursuit policy.  POST Regulation 1081 require a minimum of one hour training annually on high-speed vehicle pursuit training.  The plaintiffs contended that because the city's pursuit policy training did not meet the one-hour minimum annual training regulation, the city was not entitled to immunity under section 17004.7.  The trial court granted summary judgment.

The appellate court concluded that the city had to meet the POST regulation's requirement of at least one hour training on the pursuit policy annually.  The court rejected the city's argument that the regulation applied only to entry-level training.  It further rejected the argument that the regulation does not apply to discretionary training such as vehicle pursuit policy training; if an agency wishes to avail itself of the section 17004.7 immunity, the training and adherence to the POST regulation become mandatory.  The court further rejected the argument that POST was not statutorily authorized to adopt minimum time standards for the training.  Because the City failed to show that its officers received a minimum of one hour training on the policy annually, it was not entitled to summary judgment.