Government Liability Update

Negligent Misrepresentation Immunity Applies to Public Officer's Employee-Compensation Decisions

Government Code section 822.2 grants public employees qualified immunity from liability for  misrepresentations involving business or financial matters.  In County of Kern v. Sparks, the appellate court held that a sheriff who allegedly granted unauthorized premium pay to commanders -- and falsely certified payroll reports to the county in the process -- could be held liable under the state False Claims Act; but was immune under section 822.2 from liability for negligent misrepresentation.  The court concluded the alleged misrepresentations involved business and financial matters.

Ninth Circuit Discusses Circumstances Permitting Police Use of Force During Traffic Stops

In Winterrowd v. Nelson, the Ninth Circuit ruled that Alaskan police were not entitled to qualified immunity for allegedly slamming the plaintiff against the hood of his car, and yanking an arm he contended was injured up and down, after pulling him over for improper license plates.  (Solely for purposes of reviewing summary judgment based on qualified immunity , the plaintiff's version of facts was adopted by the court.)  Neither the plaintiff's purported belligerance; his calling the police "jackbooted thugs" and "cowards"; his asserted belief that he did not have to register his truck with the state; or his multiple pens and pencils on his person justified the use of force, according to the court.

Appeals Can Toll Statutes of Limitations; but Incapacity Does Not

Paniagua v. Orange County Fire Authority is a newly-published case in which we represented the defendant city as appellate counsel.  It resolves two unsettled issues concerning the statute of limitations for filing a complaint against a public entity after a late-claim application is denied.

In 1998, the plaintiff in Paniagua was injured in a fight.  Police officers of the defendant city detained plaintiff, and called paramedics from the defendant fire authority to examine him.  The paramedics recommended plaintiff seek medical treatment.  Plaintiff refused.  The officers drove plaintiff to his home.  After the officers left, plaintiff fell into a coma.  He has never awakened.

Within a year of the incident, attorneys for plaintiff sued the man who hit plaintiff.  A little over a year after the incident, the attorneys filed late-claim applications with the public entity defendants.  Both denied the applications.  The appellate court determined that the denials failed to specifically deny the claims, thus triggering the two-year-from-accrual statute of limitations.

The attorneys petitioned the court for relief from the claims requirements.  They appealed the denial.  In 2002, the appellate court ruled that the public entities should have granted the applications, and therefore affirmed the denial of the petition (as superfluous).  Several months after the case was remitted to trial court, the plaintiffs filed an amended complaint naming the public entity defendants.

The trial court granted the public entities judgment based on the two-year statute of limitations.  The appellate court affirmed.  In the process, it held:

-- Plaintiff's cause of action accrued when he was assaulted.

-- The plaintiff's incapacity did not toll his two years to file a complaint -- even during the time he lacked a guardian or conservator.  Incapacity can only excuse late presentation of a claim or (in certain circumstances) a late-claim application; it cannot excuse a late complaint.

-- The appeal from denial of the section 946.6 petition for relief from claim requirements tolled the statute of limitations.  It was a necessary step before they could file suit.

-- But even subtracting the two years the petition appeal was pending, the complaint was filed more than two years after accrual.  It was therefore time-barred.

Public Entity's Mistaken Statement on Law to Represented Plaintiff Does Not Create Estoppel

Jordan v. City of Sacramento, published today, deals with an issue that arises often in late claim and statute of limitations cases:  Allegations that a public entity is estopped from asserting a time limit because the entity purportedly misled a plaintiff's attorney on the law.  Here, the city's claims administrator told the attorney for a trip and fall plaintiff that the city was not liable for a fall on its sidewalks, based on the city's ordinances.  As a result, the plaintiff's attorney failed to file a complaint within six months after plaintiff's timely claim was rejected.

The court held that absent evidence of bad faith on the public entity's part, or a "confidential relationship" between the entity and plaintiff, entities cannot be estopped based on negligent misrepresentation of the law to a represented party.  That is because:

"[W]here the material facts are
known to both parties and the pertinent provisions of law are
equally accessible to them, a party’s inaccurate statement of
the law or failure to remind the other party about a statute of
limitations cannot give rise to an estoppel."

Further:

"The invocation of estoppel is particularly inappropriate
where the party seeking it was represented by counsel at the
time of the misrepresentation of law."

The court affirmed summary judgment for the city.

Case Sets New Limits on Federal Prosecutorial Immunity

The Ninth Circuit's decision today in Goldstein v. City of Long Beach illustrates the differences between California's broad statutory prosecutorial immunity to liability under state law (discussed in Gillan -- see post below), and the federal common law prosecutorial immunity to liability under 42 U.S.C. section 1983.  The federal immunity applies only to conduct and decisions "intimately associated with the judicial phase of the criminal process"; and does not apply to administrative decisions.

This case limits that immunity still further.  It holds that a DA's office policy on sharing information about jailhouse informants among deputy DAs -- or the decision not to have such a policy -- is an administrative decision, rather than a prosecutorial one; and the DA can therefore be held liable under section 1983 for failure to adequately train and make policy on the subject. 

The decision is a controversial one; and may end up before the U.S. Supreme Court.

Important New Case on Investigation and Prosecution Immunity

Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033 is the culmination of a line of cases holding that Goverment Code section 821.6 immunizes public employees (and vicariously their employers) from liability for statements to the press in the course of or concerning investigations.

In Gillan, city police arrested a high school coach on suspicion of misconduct concerning one of his players.  They released him soon after arrest.  They then held a press conference, announced the arrest, and put a call out for any information concerning possible additional victims.  When the district attorney eventually decided not to prosecute the coach, he sued the city and the officers involved for violation of the Bane Act (CC 52.1) for arrest without probable cause.  He also sued them for defamation and infliction of emotional distress arising out of the press conference.  The trial court found no probable cause for the arrest.  It allowed the defamation and IIED counts to go to the jury, which awarded substantial damages.

The appellate court agreed that the arrest lacked probable cause.  But it reversed the defamation and IIED portions of the judgment.  It held that under Government Code section 821.6, the officers and city were immune from liability for the statements to the press, which were part of and about the investigation.  Although the statements arose out of the arrest, the court ruled, whether the arrest was proper was irrelevant to the immunity.  It remanded the case for retrial of damages on the false arrest count alone.

We represent the defendants as appellate counsel in this case.

"The Claim Book" Updated

We have updated our publication on California government tort claim procedure, "The Claim Book."  It is available as a CD-Rom, which we will provide free to any California public entity, agency, or employee; and to any attorney or firm that defends public entities, agencies or employees.  If you want a copy, please e-mail dpb at pvandf dot com and provide your name, organization, and mailing address.