Government Liability Update

A Police Chief Is "Removed" from Office under POBRA Even If Still Paid

In Robinson v. City of Chowchilla, published December 23, 2011, the Fifth District Court of Appeal upheld a trial court decision granting a police chief a writ of mandate ordering his reinstatement on the ground that the chief was removed from office without giving him the notice required under the Public Safety Officers' Procedural Bill of Rights Act.  Among other arguments, the defendant argued that it had not "removed" the chief from office, within the meaning of the act, before the date his contract expired, even though it directed him to remove his belongings from office and leave the department, and then appointed an acting chief in his place.  The defendant contended that because it continued to pay the chief his compensation until the end of his term, it did not "remove" him.  The appellate court ruled that interpreting the statute that way would encourage cities to evade POBRA's procedural protections simply by continuing to pay police chiefs after putting them out of office.  

In Roadway Design Case, Court May Exclude Evidence of Accidents That Occurred Before Roadway Changed

In Ceja v. Department of Transportation, ordered published December 19, 2011, the Fifth District Court of Appeal upheld a trial court's decision in a lawsuit dealing with a cross-median accident to exclude evidence of four cross-median accidents that occurred before the roadway was reconfigured.  In 1992, the roadway met the accident-history criteria ("accident warrant") for installing a median barrier.  The state decided not to install a median, because the roadway was to be reconfigured in 1994 from four lanes of expressway and freeway with an 84-foot median to six lanes of freeway with a 60-foot median.  

The trial court acted within its discretion in excluding the accidents that occurred when the freeway was in a different configuration, the appellate court ruled.  To have the prior accidents admitted into evidence, the plaintiff had to prove that there was no substantial change in the roadway between those accidents and the one at issue.  The change in configuration was a substantial change.  It did not matter that the number of lanes was irrelevant to the accident warrant.  An accident warrant does not govern whether a roadway has substantially changed; it is merely an indication that the roadway's design should be evaluated further.

Police Officer Who Promises Accident Victim He Will Preserve Evidence Is Immune from Liability for Failure to Do So

In Strong v. State, ordered published on December 16, 2011, the Second District Court of Appeal, Division 7, reversed a judgment against the state for a CHP officer's failure to preserve evidence of an accident.  The officer came across the plaintiff injured at the scene.  The plaintiff asked the officer for the identity of the other driver in the accident.  The officer assured the plaintiff the information would be in the accident report.  In reliance on the officer's promise, the plaintiff did not obtain the other driver's identity at the scene.  The officer failed to put the other driver's information in the report, and lost or destroyed his notes of the investigation.  The CHP disciplined the officer.  In a bench trial, the court held the officer violated a mandatory duty by failing to obtain the information; and also entered into a special relationship with the plaintiff that created a duty of care the officer breached.

The appellate court reversed the judgment against the state.  The conclusion that the CHP manual and the traffic report form created a mandatory duty under Government Code section 815.6 was unsupported by evidence that the duty set forth in them had been promulgated as a regulation through the process for doing so.  Absent that procedure, Evidence Code section 669 bars any finding that a police manual or form establishes a mandatory duty.

The appellate court upheld the trial court's ruling that, under the special relationship doctrine, the officer's assurance and the plaintiff's reliance created a duty on the officer's part to preserve the evidence.  It questioned whether the negligence cause of action could succeed in light of the case law barring liability for spoliation of evidence.  It declined to decide the issue, however, because it found the officer immune from liability under Government Code section 821.6.  Section 821.6 immunizes investigations.  Because the officer lost or destroyed the notes during an official CHP investigation, the immunity applied.  Under Government Code section 815.2(b), the staet shared the immunity, and so could not be held vicariously liable for the officer's negligence.

Amendment to Government Code section 915.2 Clears up Conflict with Statute of Limitations After Claim Denied

In 2002, Government Code section 915.2 was amended to add language that provided that "Any period of notice and any duty to respond after receipt of service of a . . . notice is extended five days upon service by mail, if the place of address is within the State of California, 10 days if the place of address is within the United States, and 20 days if the place of address is outside the United States" .   This amendment created a conflict with the statute of limitations prescribed in Government Code section 945.6(a)(1), which stated that a plaintiff had six months after notice of rejection of a claim was "personally delivered or deposited in the mail."  It was therefore unclear whether mailing the notice of rejection added time to the six-month statute of limitations.

SB 647 has resolved this conflict.  It amends section 915.2 to provide that the extension for mailing "shall not apply to the written notice set forth in Section 945.6 or the filing of a complaint after denial 
of a claim."