Government Liability Update

No Dangerous Condition Liability for Accident Caused when Driver Intentionally Crosses Double Yellow Line; Entity Immune for Design That Omits Median Space or Barrier

In Curtis v. County of Los Angeles, published July 30, 2013, the Second District Court of Appeal, Division 4, affirmed summary judgment for the county in a roadway design case.  The driver of the vehicle in front of the plaintiffs' car crossed the double yellow line separating eastbound and westbound traffic.  He hit a westbound vehicle, which spun into the eastbound lane and hit the plaintiffs' vehicle.  The plaintiffs alleged that the lack of median space or barrier, design of the road width and superelevation, design of the shoulders, striping, alignment, road design, speed, and failure to maintain the roadway amounted to a dangerous condition of public property.  Plaintiffs submitted expert testimony that the lanes and shoulder widths did not meet AASHTO and state recommendations.  They further submitted expert evidence of high traffic volume and speed, and four cross-centerline collisions in a five-year period before the accident.  

The appellate court held that the plaintiff failed to raise a triable fact that any factor other than the absence of a center median space or barrier caused the accident.  The accident was caused by the driver's purposeful decision to cross the double yellow line into incoming traffic.  The driver did not identify any condition of the road that caused him to lose control of his vehicle.  Further, the county proved its entitlement to design immunity under Government Code section 830.6 as to the lack of median barrier or space, because an official with discretionary authority approved plans twice that did not include a space or barrier.  The plaintiffs did not show any material change in conditions -- traffic flow, average speed, or accident rate -- between approval of the plans and the accident.

Split in Authority on Whether Design Immunity's Discretionary-Approval Element Requires Adherence to Standards

In Hampton v. County of San Diego, published July 26, 2013, the Fourth District Court of Appeal, Division 1, affirmed summary judgment of a dangerous condition case in favor of the county, based on Government Code section 830.6's design immunity.  On appeal, the plaintiffs argued that the county had failed to establish the element of design immunity that requires discretionary approval of the plan or design before construction.  They presented evidence that the intersection in question did not meet the county's standards for sight distances; and argued that under Levin v. State of California (1983) 146 Cal.App.3d 410 and Hernandez v. Dept. of Transp. (2003) 114 Cal.App.4th 376, a public entity cannot establish discretionary approval in the face of evidence that the design violated the entity's own design standards unless it shows the engineer who approved the plans knew they were "substandard"; elected to disregard the standard; and had authority to do so.  The Hampton court declined to follow Levin or Hernandez on this point.  It reasoned that nothing in section 830.6 requires "knowing" discretionary approval, or adherence to any standards.  

District Court Erroneously Rejects Plaintiffs' Expert Testimony and Relies on Own Experience in Granting Defendants Judgment as a Matter of Law in Excessive Force Case

In Krechman v. County of Riverside, published July 25, 2013, the Ninth Circuit reversed an order granting the defendant deputies and county judgment as a matter of law at the close of trial in an excessive force case arising from the death of a person detained for potential mental illness .  In granting the defense motion for judgment, the court rejected the plaintiffs' expert evidence on the cause of the death as medically incorrect, and expressly relied on his own experience in "street fights" in concluding the deputies' use of force against the struggling decedent was reasonable.  The appellate court concluded that both bases for granting the motion were erroneous.  If a district court admits the nonmoving party's expert testimony into evidence, it must take that expert's testimony as true when ruling on the opposing party's motion for judgment as a matter of law.  And the judge must rely on the evidence, not his personal experience, in deciding whether to grant judgment.

Charter City Does Not Make Volunteer Reserve Police Officer an "Employee" for FEHA Purposes by Making Him an "Employee" for Workers' Compensation Purposes

In Estrada v. City of Los Angeles, published July 24, 2013, the Second District Court of Appeal, Division 3, affirmed a judgment following a court trial in favor of the city in a disability discrimination action under FEHA.  The plaintiff was a volunteer Police Reserve Officer.  The city's administrative code provided that police reserve officers were volunteers, not employees, except for purposes of workers' compensation.  It extended workers' compensation to the officers, as well as uniforms and $50 per deployment period as reimbursement for expenses; but did not pay them salary, wages, or compensation for services rendered.  The trial court ruled that the plaintiff was not an employee of the city for FEHA purposes.  The appellate court affirmed.  As a charter city, the city was entitled to govern its internal affairs, including its role as an employer.  Its charter and civil service rules determine who is an employee.  Under those rules, the plaintiff was a volunteer, not an employee.  That the city provides volunteer reserve offices with workers' compensation benefits does not change the fact that they are volunteers who serve without renumeration.  The benefits are not compensation; they simply serve to make a volunteer whole if the volunteer suffers injury while performing duties.  They do not transform the volunteer into an employee for purposes of FEHA.

A County Can Be Held Vicariously Liable for a Sheriff's Improper Imprisonment of a Prisoner

In Rodriguez v. County of Los Angeles, published July 2, 2013, the Second District Court of Appeal, Divison 2, reversed the dismissal on demurrer of a plaintiff's false imprisonment suit against two counties.  After city police allegedly arrested the plaintiff based on a bench warrant for a different man, plaintiff was allegedly held in two counties' jails until released.  The trial court sustained the counties' demurrers to the complaints, on the ground that in Venegas v. County of Los Angeles the California Supreme Court held that for purposes of 42 U.S.C. section 1983 suits the sheriff's department acts as an agent for the state, not the county, when determining whether to hold someone in custody.  The appellate court concluded that Venegas applies only to section 1983 liability.  When a plaintiff sues a county under state law for false imprisonment because the sheriff has placed him in custody, the sheriff acts for the county; and if the sheriff falsely imprisoned the plaintiff, under Government Code section 815.2 the county can be held vicariously liable for the sheriff's acts.

Use of Excessive Force During Illegal Arrest May Violate Bane Act

In Bender v. County of Los Angeles, published July 9, 2013, the Second District Court of Appeal, Division 8, affirmed a judgment against a police officer and his employer for damages, attorney fees, and expert costs under the Bane Act, Civil Code section 52.1.  The Bane Act authorizes a civil action against anyone who interferes (or attempts to) with an individual's exercise or enjoyment of rights under federal or state law.  The plaintiff was allegedly arrested without probable cause, and then beaten and pepper-sprayed for no reason.  On appeal, the defendants argued that a Bane Act violation requires some coercion independent from the coercion inherent in the wrongful detention itself; and violation of some right other than the Fourth Amendment right to be free from illegal arrests and excessive force.  The appellate court concluded that where an arrest is unlawful, and excessive force is applied in making the arrest, there has been coercion independent from that inherent in the detention; and the Fourth Amendment violation through coercion not inherent in an arrest is sufficient to state a cause of action under the Bane Act.

"Constructive Custody" Does Not Affect Date of Accrual of False Imprisonment Cause of Action; State Immune from Liability for Negligence in Revoking Parole

In Torres v. Department of Corrections and Rehabilitations, published July 3, 2013, the Second District Court of Appeal, Division 6, affirmed demurrer granted to the state in a lawsuit alleging the Department of Corrrections falsely imprisoned him because the court of appeal (on a habeas corpus petition) determined his parole was erroneously revoked.

One of the trial court's grounds for sustaining the demurrer was that the plaintiff presented an untimely claim for damages.  The plaintiff's cause of action for false imprisonment accrued when he was released from custody.  He presented a claim more than six months after he was released from physical custody.  The plaintiff argued that because the law deems parolees who are not physically confined to prosecute habeas writs, on the ground they are in "constructive custody," his cause of action did not accrue until his parole ended and GPS tracking bracelet removed.  The appellate court rejected that theory.  Parole supervision and wearing a GPS bracelet is not tantamount to actual custody for tort accrual purposes.  "The Legislature has created the exclusive manner as to when and how the state may be sued," the court held.  "The appellate courts should be loathe to tinker with the statutory scheme in a way not reasonably contemplated by the Legislature."

The trial court's alternative ground for sustaining the demurrer was that Government Code section 845.8 immunizes public entities for determining whether to revoke parole.  The appellate court affirmed.  Penal Code section 3001, which specifies the rules for discharge from parole, does not create civil liability for failure to timely discharge a prisoner from parole; and even if it did, section 845.8 would immunize the state.  Further, although the complaint sounded in negligence, there is no common law tort liability for public entities in California.

Mistaken Belief Suspect Is Resisting Arrest Does Not Entitle Officers to Qualified Immunity for Using Excessive Force; Court's Explanation for Reducing Fee and Interest Award Inadequate

In Bernard v. Theobald, published July 1, 2013, the Ninth Circuit affirmed a jury verdict against police officers sued under 42 U.S.C. section 1983 for using excessive force in detaining the plaintiff.  The officers, executing a warrant for the plaintiff's brother, were detaining and handcuffing the plaintiff when the handcuffing officer tripped and pulled the suspect down.  The officers then put the plaintiff in a chokehold, sprayed him with pepper spray, and allegedly injured his cervical spine.  The jury concluded that the officers made a reasonable mistake of fact that the plaintiff was resisting arrest; but that they violated his 4th Amendment rights by using excessive force.  In awarding attorney fees, the district court reduced the claimed fees by 40% on the ground of excessive billing; and awarded no interest.

The Ninth Circuit affirmed the jury verdict.  The officers argued that their reasonable mistake entitled them to qualified immunity.  But while resistance (actual or perceived) allows officers to use force, they may use only an amount of force that is reasonable to overcome the resistance.  Substantial evidence supported the jury's finding that the force used was unreasonable.

The appellate court reversed the district court's decision on the fees and interest.  The plaintiff was entitled to post-judgment interest, and might be entitled to pre-judgment interest.  The district court's decision that pre-judgment interest was inappropriate because of the lack of distinction in the verdict between economic and noneconomic damages was incorrect.  Further, the court gave an insufficient explanation for why excessive billing justified a 40% decrease in the amount of fees claimed.