Government Liability Update

Although Parole Immunity Does Not Apply to Violation of Mandatory Duties under Sexually VIolent Predators Act, Violation Does Not Proximately Cause Crime Victim's Injury

In State Department of State Hospitals v. Superior Court (Novoa), published October 30, 2013, the Second District Court of Appeal granted in part and denied in part a petition for a writ of mandate challenging an order overruling a demurrer in a suit brought by the sister of a rape and murder victim against the State Department of Mental Health.  The perpetrator was imprisoned for rape, and then released from prison on parole.  Before release, the Department of Mental Health evaluated him to determine whether he was a sexually violent predator who should be confined under the civil commitment process of the Sexually VIolent Predators Act, Welfare & Institutions Code section 6600 et seq.  Four days after release, the perpetrator committed the crime against the plaintiff's sister.  The defendants argued that because Government Code section 845.8 immunizes parole decisions, they were entitled to immunity for the perpetrator's release.

The appellate court entertained the writ petition, because of the interest in resolving souvereign immunities at the pleading stage and the important legal issues raised.  The court rejected the argument that section 845.8's immunity applied to mandatory duties.  Case law established that section 845.8 applied to discretionary parole decisions, but not ministerial mandatory duties that must be carried out in connection with those decisions.  The SVPA imposed a mandatory duty that, when the Director of Corrections determines that an inmate may be a sexually violent predator, he shall refer the inmate for an evaluation by at least two psychiatrists, two psychologists, or one of each.  Because the complaint alleged that was not done, the complaint pleaded a cause of action for breach of mandatory duty under Government Code section 815.6.  But a breach of mandatory duty is not the proximate, legal cause of a plaintiff's injury where the violation could not have caused the injury unless the defendant or a third party exercised its discretion to take additional action.  The decision to civilly commit an inmate under the SVPA involves many discretionary decisions.  Those decisions broke the causal chain as a matter of law, barring plaintiff's damages cause of action.  But as a member of the public, under the circumstances of the case, plaintiff had standing to petition for a writ of ordinary mandamus to compel the evaluation of the perpetrator that the SVPA required.

Social Workers Immune from Liability for Discretionary Child Removal Decisions, Regardless of Whether Made with Malice

In Christina C. v. County of Orange, published October 29, 2013, the Fourth District Court of Appeal, Divison Three, affirmed summary judgment for the defendant county, its social services agency, and several of the agency's social workers in a case brought by a mother who contended the defendants violated her state law civil rights by removing her 10-year-old child from her and placing him with his father, then returning him to her custody when he fared poorly in his father's care.  The appellate court noted that the dependency court, not the defendants, makes the decision whether a child will be removed from a parent's custody, where the child will be placed, and on what conditions.  The defendants could not be held liable for those decisions.  Further, to the extent the social workers made decisions concerning removal, placement, and conditions, they were entitled to immunity under Government Code section 820.2, the discretionary immunity, regardless of whether the discretion was allegedly abused or they made bad decisions.  The plaintiff contended that the statute does not apply when social workers act with "malice."  She relied on Government Code section 820.21, which holds that immunity of juvenile court social workes does not extend to perjury, fabrication of evidence, failure to disclose exculpatory evidence, or obtaining evidence by duress, if any of those acts are committed with malice.  The court rejected the argument.  Absent evidence that the social workers engaged in one of the acts or omissions covered by section 820.21, the existence of malice in itself does not affect immunity.

The Rules for Determining the Successful Party under the Private Attorney General Fee Statute Governing Awards of Fees under the California Public Records Act

In Garcia v. Governing Board of Bellflower Unified School Dist., published October 24, 2013, the Second District Court of Appeal, Division Three, affirmed an award of attorney fees to a petitioner who obtained a writ of mandate from the superior court compelling the a school district to produce records under a California Public Records Act (Gov. Code, section 6250 et seq.) request.  The court ordered the district to produce documents responsive to three of the petitioner's requests, deniedthe petition as to three requests, and ruled that two of the requests had been resolved and were no longer at issue.  The court determined that under the Act's fee statute, Government Code section 6259, the petitioner was the prevailing party and entitled to her fees.  The appellate court affirmed.  Although section 6259 does not define the term "prevailing party," the appellate court held that the term was synonymous with "successful party," the term used in the Private Attorney General fee statute, Code of Civil Procedure section 1021.5.  It therefore held that the same definition applies:  a party prevails if it succeeds on any significant issue in the petition or lawsuit enforcing the Act, and achieves some of the benefit sought.  The trial court acted within its discretion in determining that the petition was the prevailing party under this definition.

Neither Statute Nor Common Law Creates a Cause of Action for Damages arising out of Local Legislators' Conflicts of Interest

In All Towing Services LLC v. City of Orange, published October 22, 2013, the Fourth District Court of Appeal, Division Three, affirmed summary judgment in favor of a city and its city council members in a lawsuit brought by a towing company that was not awarded a city contract.  The towing company alleged that two councilmembers had conflicts of interest because they received campaign contributions of $250 or more from other bidders in an earlier election cycle.  The towing company alleged that under the Political Reform Act of 1974 (Gov. Code, section 810000 et seq.), these contributions amounted to a prohibited per se financial interest in the awarding of the contract.  The company also alleged that the councilmembers and city violated a general "common law conflict of interest" prohibition, giving rise to damages.

The appellate court ruled that the campaign contributions did not create a conflict of interest under the PRA.  It criticized dictum otherwise in another appellate decision, Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, as incompletely reasoned and contrary to the statutory language.  The PRA expressly excludes from the definition of "financial interest" the receipt of campaign contributions.  

The appellate court also rejected the concept of a common law cause of action for damages based on conflict of interest.  Neither the PRA nor Government Code section 1090 et seq (which provides that public contracts in which public officials are interested are void, and that offending officials may be subject to criminal penalties and barred from office) support a cause of action for damages.  Any such cause of action should be created by the legislature if it is necessary.

A Plaintiff Who Sues a Public Entity for Violation of the Whistleblower Protection Act Need Not Comply with the Government Claims Act

In Cornejo v. Lightbourne, published October 22, 2013, the Third District Court of Appeal reversed an order sustaining the demurrer of a state agency to a lawsuit filed in 2010 by an employee of the agency for alleged violation of the California Whistleblower Protection Act, Government Code section 8547 et seq.  The employee alleged that as a result of her reports, which started in 1999, she experienced retaliation beginning in 2002.  She filed a series of administrative complaints over the intervening years alleging retaliation.  They resulted in investigations, findings issued by the State Personnel Board's executive officer, a hearing and decision by a hearing officer.  She never presented a claim for damages.  The trial court sustained the agency's demurrer on the ground that the plaintiff had not complied with the Government Claims Act.

The appellate court held that in light of the administrative remedies that a plaintiff must pursue under the Whistleblower Protection Act before suing for damages, there is no need for the plaintiff to also present a claim for damages under the Government Claims Act.  Generally, a plaintiff must both exhaust any applicable administrative remendies and present a claim for damages before suing a public entity.  Where administrative remedies exist, a court will infer a legislative intent to excuse compliance with the Claims Act only where a claim is based on a statutory scheme with a functionally equivalent claims process and a comparable scheme for administrative enforcement.  Such exceptions to the Claims Act are rarely found; until this case, with one exception, the claims found exempt are FEHA claims.  The court noted, however, that the Whistleblower Act remedies require the plaintiff to present an administrative complaint that requires information similar to that required in a claim.  Further, the Act provides for extensive investigation of allegations.  Therefore, requiring compliance with the Claims Act would be duplicative. 

The court noted that a pending bill would add Whistleblower Protection Act suits to the types of suits listed in Government Code section 905.2 as exempt from the claims requirement.

Because the action is exempt from the Government Claims Act, the statutes of limitations prescribed in Government Code section 945.6 do not apply to the action either.

The Legislature Did Not Intend to Make the California Highway Patrol the Special Employer of Freeway Service Patrol Tow Truck Drivers

In California Highway Patrol v. Superior Court (Alvarado), ordered published October 15, 2013, the Fourth District Court of Appeal, Division Three, issued a writ of mandate reversing a trial court order denying the CHP's motion for summary judgment in a personal injury case brought by plaintiffs injured when rear-ended by a tow truck driver.  The driver was employed by a towing company that contracted with the Orange County Transportation Authority to participate in the Freeway Service Patrol program.  OCTA contracted with the CHP to provide funding for CHP's involvement in the program, and CHP supervised the FSP.  The trial court certified to the appellate court the question of whether, under the statutes governing the FSP program, the CHP could be the special employer of a tow truck driver in the FSP program.  Interpreting the statutes governing the program, the court determined that the Legislature intended to distinguish between employers of tow truck drivers and the CHP.  The CHP therefore could not be the special employer of  tow truck drivers as defined under those statutes.  The appellate court declined to address whether this driver was a special employee of the CHP at the time of the accident.

Public Entity May Not Contract to Indemnify Employee against Suit Brought on Entity's Behalf against Employee for Alleged Criminal Conduct Committed in Bad Faith and with Malice

In City of Bell v. Superior Court (Rizzo), published October 4, 2013, the Second District Court of Appeal, Division Three, addressed whether Government Code section 996.6 permits public entities to enter into defense and indemnity contracts with its employees that would provide a defense against the city's own lawsuit (or a lawsuit brought by the Attorney General on the city's behalf) against the employee for alleged corruption.  The court answered the question in the negative.  Government Code section 995.8 prevents a public entity from providing its employee a defense to a criminal action unless the public entity determines that the defense would be in the best interests of the public entity and that the public employee had acted in good faith and without malice.  Section 996.6 provides that an employee's or former employee's rights under the Government Code are in addition to, and not in lieu of, any rights he may have under a contract or other enactment providing for his defense.  The court concluded that under this statute, if an employee has a contractual right to defense (such as his own insurance policy), the entity cannot escape a statutory duty to defend him on the ground that the employee has another source of defense.  The statute does not permit the public entity to enter into a defense or indemnity contract that would exceed the entity's statutory powers.  Since under section 995.8 the entity has no power to contract to defend or indemnify an employee it is suing (or is sued on the entity's behalf) for corruption, section 996.6 does not permit it to do so.

Unimproved-Property Immunity Applies to Plaintiff Injured on Improved Parking Lot

In Meddock v. County of Yolo, published October 3, 2013, the Third District Court of Appeal ruled that Government Code section 831.2's immunity from liability for injuries caused by natural conditions of unimproved public property applied when a tree located on unimproved property fell on an improved parking lot in a public park, injuring the plaintiff.  The immunity focuses on the cause of the injury, the court reasoned, not the location.  Because the parties did not dispute that the tree was on unimproved property, and that a natural condition caused the tree to fall, the defendant county was properly granted summary judgment.