Government Liability Update

City Council Does Not Have Power to Hear Appeal from Planning Commission Decision, Brought by Councilmember, That Does Not Meet Municipal Code's Requirements

In Woody's Group, Inc. v. City of Newport Beach, published January 29, 2015, the Fourth District Court of Appeal, Division 3, reversed a trial court's decision denying a writ of administrative mandamus, nullifying the challenged city counsel decision and directing the trial court to grant the writ.  The city's municipal code provided that interested persons could appeal planning commission decisions to the city council if they used the city form and paid a filing fee. A city council member appealed a planning commission decision to the city council, via e-mail and without paying the filing fee. At the meeting, the councilmember spoke against the planning commission decision.  The city council granted the appeal.

The appellate court ruled that the councilmember who brought the appeal should not have been part of the adjudicatory body -- the council -- hearing the appeal.  It further ruled that because the appeal did not meet the procedural requirements of the municipal code, it should not have been brought.

Law-Enforcement Immunity Does Not Apply to Claim of Public Employee Negligence; First Responders Cannot Raise Victim's Pre-Treatment Negligence as Defense

In Harb v. City of Bakersfield, published January 23, 2015, the Fifth District Court of Appeal reversed a defense verdict for the city and one of its police officers in a lawsuit arising out of allegations that the officer negligently failed to secure medical care for a stroke victim.  The victim, a doctor, suffered a severe stroke and crashed his car.  When an officer arrived, she believed the victim was intoxicated.  The plaintiff alleged that the officer, a paramedic, and an ambulance driver were negligent in assessing the victim's condition and in getting him to a hospital, and that the delay exacerbated the stroke's debilitating effects.  The jury found, in a special verdict, that none of the defendants were negligent.

The court of appeal ruled that the trial court had erred in giving the jury an instruction based on Government Code section 820.4.  Section 820.4 immunizes public employees for their acts or omissions in executing or enforcing the law, so long as the employee acts with due care.  The appellate court concluded that this immunity does not apply to negligence claims against public employees, since a public employee who is negligent is not acting or omitting to act with due care.  The instruction was superfluous to the negligence instructions; and the record showed that the jury was probably misled by the instruction.

The appellate court also found error in the trial court's instruction that the jury could consider the victim's negligence (in failing to regulate his own blood pressure) before the police officer arrived as comparative fault.  The court ruled, as an issue of first impression, that a first responder sued for negligence cannot assert comparative fault based on the conduct of the victim that put the victim in that situation.  The first responder takes the victim as he or she finds the victim.  Although the jury did not reach the comparative fault issue, the record showed that the evidence and argument concerning the victim's alleged negligence prejudiced the verdict.

Freezing Inmate Trust Funds to Pay for Cost of Incarceration Requires Pre-Deprivation Hearing, But Does Not Violate Eighth Amendment

In Shinault v. Hawks, published January 22, 2015, the Ninth Circuit Court of Appeals affirmed summary judgment in favor of Oregon state corrections officials in a 42 U.S.C. section 1983 lawsuit a prisoner brought alleging that the officials violated his 14th Amendment Due Process and 8th Amendment rights by freezing approximately $60,000 in the plaintiff's inmate trust account.  The plaintiff had received a settlement of more than $100,000 from a medical liability claim against a drug manufacturer whose products had caused him diabetes.  His counsel deposited the money in plaintiff's inmate trust account.  The department of corrections issued an order requiring the plaintiff to pay the estimated cost of his current and previous incarceration.  The plaintiff requested a case hearing contesting the order.  On the day that he did, the department transferred the estimated amount out of his trust account aind into a sub-account in his name.  Plaintiff could not access the sub-account.  At the hearing, the administrative law judge ultimately ordered the plaintiff to pay a smaller amount than the amount the department had frozen.

The Ninth Circuit held that the department should have given the plaintiff a pre-deprivation hearing before freezing the amounts.  Depriving a person of a property interest usually requires a predeprivation hearing, unless circumstances requiring speed are present.  Here, there was no reason for speed.  The court held that as long as the plaintiff had notice and a chance to object, the department had discretion on what type of pre-deprivation procedure to provide.  (California law provides for a pre-deprivation proceeding before inmate trust funds are used to reimburse the state for incarceration costs.)  The court nevertheless affirmed summary judgment.  Because no settled law established the right to a predeprivation hearing under these circumstances, the officials were entitled to summary judgment.

The court also affirmed summary judgment on the 8th Amendment claim.  The plaintiff argued that he was going to use the settlement proceeds for medical care after release, and that freezing and withdrawingthe funds deprived him of medical care.  While the state is required to provide inmates with diabetes care during incarceration, and sometimes during a transitional period following release, this right does not shield an inmates assets because they could potentially be used for medical care after release.

Overbroad Public Records Request Does Not Warrant Attorney Fee Sanctions Unless Brought for an Improper Purpose Or Wholly Lacking in Merit

In Bertoli v. City of Sebastipol, published January 20, 2015, the First District Court of Appeal, Division 4, reversed a fee award under Government Code section 6259(d) to a city that was based on a request for city and city employees' electronically-stored information via the California Public Records Act.  When the party who sought the information petitioned the trial court for a writ to compel further production in response to the request, the trial court ruled the demand overbroad.  It then awarded the city attorney fees.  

The appellate court noted that the statute awards public agencies attorney fees in Public Records Act disputes only where the plaintiff's case is "completely frivolous."  The court applied the standard of frivolousness used in motions for sanctions for frivolous appeals:  The petition to compel a response to the CPRA request must either have been brought for an improper motive, such as to harass, or be completely lacking in merit.  Although the appellate court agreed with the trial court that the request was overbroad, it ruled that this request, brought to obtain information for a lawsuit, was not brought for an improper purpose.  And because the issues raised by the petition were debatable under the current state of the law, the court ruled, the petition was not wholly without merit.

Categorical Right to Detain Occupants During Warrant-Based Search of Residence Does Not Permit Extended Detention After Search Completed

In Guillory v. Hill, published January 16, 2015, the Fourth District Court of Appeal, Division 3, reversed a directed verdict granted in a 42 U.S.C. section 1983 lawsuit to a sheriff's department investigator who obtained a warrant to search a large house where a party with hundreds of attendees was occurring, and then detained the occupants for interviews for hours after the search of the residence was completed.  The appellate court held that while police have the right to categorically detain the occupants of a residence during the time that the residence is being searched, detaining the occupants for a prolonged time after the search is completed may violate the occupants' Fourth Amendment rights.  Because the evidence of when the search ended and whether the detentions were prolonged was disputed, a directed verdict should not have been granted on that issue.  The investigator was not entitled to qualified immunity, because at the time of the search 9th Circuit case authority held that a prolonged detention after a warrant-backed search of a residence could ripen into a Fourth Amendment violation.  The interrogations of the suspects could not be justified as an extension of the search of the house.  The fact that the search disclosed potentially incriminating evidence did not alone justify detention of all of the occupants of the house to interrogate them about the evidence.

A County Sheriff's Department Performing Law Enforcement Activities Is Not a "Person" under 42 U.S.C. Section 1983, and Cannot Be Sued for Damages under That Statute

In Pierce v. San Mateo County Sheriff's Department, published December 31, 2014, the First District Court of Appeal, Division 1, affirmed the dismissal on demurrer of the defendant sheriff's department from a lawsuit a pro per plaintiff brought in state court under 42 U.S.C. section 1983, alleging a warrantless search of her home (under an alleged condition of probation) by the department's deputies violated the plaintiff's Fourth Amendment rights.   In the opinion, the court stated that it published the decision in the hopes of eliminating "some of the confusion" in California's courts on the interplay of the "person" requirement of section 1983 liability and the Eleventh Amendment.  

The County of San Mateo (the court stated in a footnote that the sheriff's department was not a separate entity, but was a department of the county) argued that the department's dismissal was proper because it was immune from suit for violation of section 1983 under the Eleventh Amendment.  The court, reviewing U.S. Supreme Court authority, concluded that the Eleventh Amendment does not apply in state courts.  It dismissed language to the contrary in California Supreme Court decisions as dicta.  Instead, it concluded that a sheriff's department performing law enforcement activities (such as the alleged search) cannot be sued under section 1983 for damages because it is not a "person" under that statute, and only "persons" can be sued for damages under section 1983.  The court based this conclusion on U.S. Supreme Court authority holding that states are not "persons" under section 1983 and that sheriff's deputies in some states may be agents of the state, rather than the county, when performing law enforcement activities, along with the California Supreme Court's holding that county district attorneys act for the state when they prosecute and prepare to prosecute suspects for violation of state law.  Accordingly, when a sheriff's department's deputies carry out law enforcement activities, the sheriff's department is not a "person," and cannot be sued under section 1983 for its customs, policies, or practices.