Government Liability Update

Jury Could Find That School District's Instructions Not to Discuss Suspected Molestation with Anyone, to Protect Criminal Prosecution, Equitably Estopped District from Asserting Claims Were Untimely

In J.P. v. Carlsbad Unified School District, published December 12, 2014, the Fourth District Court of Appeal, Division 1, affirmed a jury verdict in favor of two minors against a defendant school district and its employees for negligent supervision of a teacher who improperly touched two minor students.  Because the improper acts occurred before 2009, Government Code section 905(m), which exempts claims for childhood sexual molestation from the Government Claims Act, did not apply.  When the first minor was improperly touched, she immediately told her parents, who reported the act to the school district.  District employees contacted the police, and repeatedly told the parents and the student not to talk to anyone about the allegations because it might endanger the criminal prosecution's success.  Over a year after the incident, the second student's parents saw an article about the preliminary hearing in the teacher's prosecution.  They questioned their child, who was one of the teacher's students, and learned she too had been improperly touched.  They immediately reported this to the district.  The district also told the second family not to speak to anyone about the incident, to avoid contaminating the criminal case.  The prosecutor made the same request.  One of the families  spoke to a counselor about the case, and also made an anonymous comment on an online article about the incident.  One of the parents obtained the name of a civil lawyer, but did not talk to the lawyer.  The teacher eventually pleaded guilty.  Six weeks after the sentencing hearing, the minors presented claims for damages to the district.  The district contended that the claims were untimely.  The matter went to trial.  The jury found that the district was equitably estopped from asserting the failure to timely present the minors' claims.

The appellate court affirmed.  Looking at the evidence in the light most favorable to the verdict, the court concluded that substantial evidence supported the jury's finding on equitable estoppel.  The district's repeated instructions to stay silent, coupled with the threat that prosecution of the attacker would be endangered if they did not comply, intimidated the parents into not speaking to anyone about the possibility of civil claims against the district.  The district could therefore not benefit from its conduct.  While the district's administrators may not have intended to prevent the children and parents from presenting government claims, the intent was not necessary for estoppel to apply.  Factually misleading the claimant is not a necessary element of estoppel where the estoppel results from intimidation.  Although the district did not threaten the claimants, the statements effectively amounted to a threat that the teacher would be convicted if they talked to anyone.  The jury could find it was reasonable for the parents to interpret the instructions as prohibiting discussions with civil attorneys about claims.  Even though the parents could have presented claims without a lawyer, preventing a claimant from obtaining legal advice may estop a public entity.  The court also approved the instructions and special verdict forms the court gave regarding estoppel.

Inadvertent Production of Privileged Document to Litigant's Attorney Via Public Records Act Request Waives the Privilege

In Ardon v. City of Los Angeles, published December 10, 2014, the Second District Court of Appeal, Division 6, affirmed a trial court decision denying the defendant city's motion to compel the plaintiff to return privileged documents the city turned over to the plaintiff's counsel in response to a California Public Records Act request, and to disqualify the plaintiff's counsel.  The plaintiff had sued the city alleging that a telephone users' tax was improper.  The plaintiff's attorney made a Public Records Act request for documents relating to the subject matter of the complaint.  The attorney informed the city's attorneys that through the request she had obtained documents that the city had listed on a privilege log produced during discovery.  The city stated that the documents were privileged, and had been inadvertently produced.  The plaintiff's attorney refused to return the documents.

The appellate court concluded that the rules that govern inadvertent production of documents during discovery in a lawsuit do not govern production in response to a Public Records Act request.  Under Government Code sections 6254 and 6254.5, although privileged documents need not be produced in response to a Public Records Act request, production of privileged documents waives any privilege.  The Act does not contain any exception for inadvertent disclosure, and neither the statutory language nor the legislative history supports any implied exception for such disclosure.  Further, since the law forbids selective withholding, a public entity may not produce a privileged document to one person and then refuse to produce it to another on the ground that the document is privileged.  The plaintiff's counsel did not violate the rules of professional conduct by making the request.

Plaintiff May Not Use Taxpayer Suit to Collaterally Attack Foreclosure by Suing Sheriff or Clerk for Carrying Out Their Mandatory Duties

In Lyons v. Santa Barbara County Sheriff's Department, published December 3, 2014, the Second District Court of Appeal, Division 6, affirmed dismissal via demurrer of a taxpayer's lawsuit under Code of Civil Procedure section 526a against the sheriff's department, the county clerk recorder's office, and employees of the recorder's office for participation in a nonjudicial foreclosure and eviction proceeding.  The plaintiff alleged that fraudulent mortgage documents were recorded to foreclose on the plaintiff's property.  The court held that because the recorder has a mandatory duty to accept the paperwork that is filed with it, and the sheriff has a mandatory duty to serve a writ of execution, their actions cannot be attacked via a taxpayer's lawsuit.  A taxpayer's action may not be maintained where the challenged conduct is legal.

If City Indisputably Has Legitimate Grounds for Terminating Employee, Allegations of Discrimination and Retaliation Are Immaterial

In Curley v. City of North Las Vegas, published December 2, 2014, the 9th Circuit affirmed summary judgment granted to a city against the lawsuit of a former employee who alleged his termination resulted from discrimination based on his disability and retaliation for his complaints about the alleged discrimination.  The employee had received many oral and written reprimands during his time with the city.  He had multiple verbal altercations with fellow employees; made several threats of violence against co-workers; constantly complained about his managers and employer; and conducted personal business while at work.  The plaintiff did not dispute that the city had legitimate grounds to fire him, but alleged that the firing was actually motivated by his disability and his complaints about failure to accommodate his disability, and therefore violated the Americans with Disability Act.  The 9th Circuit held that it did not have to decide whether plaintiff could establish a prima facie case of discrimination or retaliation, because he conceded that if he had met his burden the city could establish legitimate grounds for terminating him.  A plaintiff's attack on an employer's reason for termination as pretextual may raise a triable issue of fact, despite the existence of legitimate grounds for termination, if the reasons are so intertwined that the showing of pretext as to one throws the rest into doubt; if the pretext is so "fishy and suspicious" that the employer may be found to have no credibility; or if the employer offered a plethora of reasons, and several of them may be pretextual.  None of those circumstances was present in this case.