Government Liability Update

Delay in Obtaining Attorney Is Excusable if Claimant Had No Way of Knowing Public Entity MIght Be Involved in Injury

In Devore v. California Highway Patrol, published November 13, 2013, the Third District Court of Appeal reversed a trial court order denying a petition under Government Code section 946.6 for relief from failing to present a timely claim for damages.  The plaintiffs' decedent died on a motorcycle while trying to avoid a multicar collision allegedly caused by a driver who was under the influence.  When the plaintiffs attended the driver's preliminary hearing, seven months after the death, they learned for the first time that a CHP officer had pulled over the driver, but had let him go without impounding his vehicle.  They obtained an attorney, and three months later presented a claim and an application for leave to present a late claim.  The trial court ruled that the cause of action accrued at the time of the death; and that because the plaintiffs had failed to obtain an attorney within six months of the accrual date, they could not assert that their failure to present a claim within those six months was excusable neglect.

The appellate court majority affirmed the trial court's accrual finding.  It concluded that because the date of accrual was relevant to the availability of relief, the trial court could make a finding on the accrual date.  The court further ruled that the trial court erred in denying relief.  The majority ruled that because the plaintiffs had no means within the claim period to discover that the driver had been pulled over, or that the entity might be responsible in some other way, and had no motivation to obtain counsel to sue a likely judgment-proof driver, they acted reasonably in not obtaining counsel within the six months.

A concurring/dissenting justice agreed that the petition should have been granted, but opined that the appellate court should have reversed the trial court's ruling on accrual, concluded that the cause of action accrued when the plaintiffs learned about the CHP's potential liability, and held plaintiff entitled to relief based on a timely claim.  The justice did not address the authority (discussed in the majority's opinion) that a court cannot grant late-claim relief based on a finding that a claim was actually timely.

The court noted, in a footnote, that the lawsuit was unlikely to succeed on the merits, because the officer had no mandatory duty to impound the vehicle.  It declined to reach that issue, however.

Police Officer Entitled to Qualified Immunity for Search and Arrest Pursuant to Warrant

In Armstrong v. Asselin, published November 1, 2013, the Ninth Circuit reversed a district court's order denying the police officer defendants qualified immunity.  A pro se plaintiff sued the officers for a search of his home, his car, his workplace  desk, social media posts, and  computer hard drive as well as his arrest, on suspicion of distributing indecent material to minors and posession of child pornography.  The evidence gathered was eventually surpressed, and the prosecutions ended.  The district court concluded that a trier of fact could conclude that a reasonable officer would have known that the initial basis for the first search and arrest -- a book the plaintiff gave minors -- was not obscene, so that the officers were not entitled to qualified immunity for the searches.  The Ninth Circuit reversed.  Because the plaintiff presented no evidence that the officers presented any false information to the magistrates who issued the search and arrest warrants, the officers were entitled to qualified immunity in light of the judicial officers who issued warrants based on findings that they had probable cause.  Only rarely in such situations will officers not be entitled to qualified immunity for relying on the warrants.

Police Officer Entitled to Qualified Immunity for Hot Pursuit of Misdemeanor Suspect onto Private Property

In Staton v. Sims, published November 4, 2013, the United States Supreme Court, per curiam, reversed the Ninth Circuit and upheld summary judgment granted to a California police officer.  The officer, investigating a report of a disturbance, saw a man flee at his approach and run toward a residence.  The officer ordered the man to stop.  The man looked at the officer, and ran through the gate of a fence enclosing a nearby yard.  The officer suspected the man of violating California Penal Code section 148 (disobeying an order from an officer), a jailable misdemeanor.  He kicked open the gate in pursuit of the man.  The gate hit the plaintiff, who was standing behind it, injuring her.  She sued the officer for unreasonably searching her home without a warrant in violation of the Fourth Amendment.  The Supreme Court held that the officer was entitled to qualified immunity.  State and federal case law on the right to pursue misdemeanor suspects onto private property without a warrant conflicted.  Indeed, the California courts of appeal had upheld such pursuits.  Because the law on the subject was not clearly established, the officer was not "plainly incompetent" in believing he had the legal right to enter the yard without a warrant.  The court declined to decide whether the officer actually violated the Fourth Amendment by entering the yard.