Government Liability Update

Sacramento Court of Appeal Limits Scope of Mary M.'s Holding

In M.P. v. City of Sacramento, published today, the Third District Court of Appeal ruled that the city was not vicariously liable for a sexual assault its firefighters allegedly committed while on duty, despite an alleged city policy of allowing on-duty firefighters to go to bars, drink, and pick up women. The plaintiff contended that because the firefighters allegedly abused their post-9/11 status as heroes to pick up women, the California Supreme Court case of Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 applied. Mary M. held that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty. The M.P. majority sharply criticized the Mary M. decision, and doubted whether the current Supreme Court would affirm it; and opined that in any case it should be limited to police officers. The court affirmed summary adjudication for the city. A dissenting justice wrote that the alleged city policy created a triable issue of fact that should defeat summary adjudication.

First DCA Concludes That Subdivision Map Act Provision Preempts Local Regulation of Mobilehome Park Conversions

In Sequoia Park Associates v. County of Sonoma, published August 21, 2009, the First District Court of Appeal Concluded that Government Code section 66427.5 governs approval of applications for conversion of mobilehome parks from rental to resident ownership; and preempts local regulations that impose requirements for application approval that are not set forth in the statute or duplicate those in the statute.

Public Employer's Behavior Policies Do Not Create Mandatory Duty Liability for Allegedly Negligent Investigation of Whistleblower Retaliation

In Mueller v. County of Los Angeles, published August 13, 2009, the appellate court upheld summary judgment for the County against a firefighter who alleged he was harassed and retaliated against for complaining about two other employees' transfers.  The court ruled that public employment rules that require employees to comply with behavorial norms do not create mandatory duties to investigate with due care allegations that employees violated the norms. The same applies to local rules concerning investigation of whistleblower allegations.  If the mode of investigation itself is discretionary, purportedly negligent investigation cannot create mandatory duty liability under Government Code 815.6.

Confidentiality Clauses in Public Entity Contracts are Enforceable

In the published portion of Sanchez v. County of San Bernardino, published August 7, 2009, the appellate court upheld confidentiality clauses in public entity contracts; and allowed a former public employee to enforce such a clause in a severance agreement through a breach of contract action.

Released Inmates Need Not Exhaust Prison Administrative Remedies to Sue for Prison Conditions

In Talamantes v. Leyva, published today, the Ninth Circuit joined other circuits that have ruled that the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, does not require a former inmate of a correctional facility to exhaust the facility's internal administrative remedies before suing for complaints arising out of the conditions of his imprisonment.  The PRLA requires only current inmates to exhaust such remedies.