Government Liability Update

Complaint May Allege Claim Compliance in General Terms, but Specific Allegations May Contradict General Allegations

In Perez v. Golden Empire Transit Dist., published October 5, 2012, the Fifth District Court of Appeal reversed the dismissal, after demurrer, of a lawsuit against a transit district arising out of a bus passenger's accident.  The complaint set forth a general allgation that the plaintiff was required to comply with a claims statute and had complied.  It then set forth specific allegations of the date the claim was presented; that the claim complied with the claims statute; that a representative of the defendant called plaintiff's representatives four days later, stated there was no date on the claim, and requested that a date be provided; and that plaintiff subsequently provided the date to the representative.  The trial court concluded that because the claim did not include a date, the claim was defective and plaintiff had failed to state a cause of action.

The appellate court noted that in State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1240, the California Supreme Court held that a complaint against a public entity for damages under state law must allege "facts demonstrating or excusing compliance with the claim presentation requirement . . ." to survive demurrer.  But the appellate court interpreted this pleading requirement as the need to plead performance of conditions precedent under a statute under Code of Civil Procedure section 459.  Section 459 prescribes that a party may plead performance generally rather than set forth specific allegations.  The court concluded that this rule controls over the general rule that statutory causes of action must be pleaded with particularity.

The court also noted, however, that specific allegations of a complaint control over inconsistent general allegations.  It noted that the specific allegations could be interpreted as admitting that the claim lacked the date of the incident.  But it further interpreted the statement that the date was provided in the light most favorable to the complaint, by inferring that the claim was amended.  

(Two observations:  First, the court's conclusion that claim compliance/excuse may be alleged in general terms is difficult to square with Bodde's requirement that the plaintiff plead "facts" showing compliance or excuse.  Second, the court declined to address whether the demurring defendant could obtain judicial notice of the actual filed claim.  Judicial notice of a defective claim may control over general allegations of claim compliance.)

Use of Taser Multiple Times, Resulting in Domestic Violence Suspect's Death, Not Excessive Force When Suspect Poses Threat to Officers and Others

In Marquez v. City of Phoenix, originally published September 11, 2012 and amended October 4, 2012, a divided 9th Circuit panel upheld summary judgment for police officers who used a Taser multiple times (both in "probe mode" and "drive stun mode") upon a suspect who appeared not to respond to the Taser.  The suspect had barracaded himself into a bedroom with his 19-year-old daughter (whom he had injured) and his three-year-old granddaughter (whom he was choking).  When the officers pushed their way into the bloody bedroom, and tased him once after he failed to obey an order to release the child, the suspect began kicking and flailing at the officers.  After multiple tasings, the suspect (who had preexisting heart problems) went into cardiac arrest and died.  The majority held that under the circumstances, the use of the Taser on an unarmed suspect was not excessive force under the Fourth Amendment, even if it amounted to the use of deadly force.  The dissenting judge opined that whether the use of deadly force was excessive should have gone to the jury.