Government Liability Update

Neither Execution of an Arrest Warrant Nor Police Comments to Neighbors While Doing So Is Protected Activity under Anti-SLAPP Statute

In Anderson v. Geist, published April 22, 2015, the Fourth District Court of Appeal, Division 2, affirmed a trial court order denying an Anti-SLAPP special motion to strike that defendant sheriff's deputies brought against a pro per plaintiff's complaint.  The deputies allegedly unlawfully entered the plaintiff's residence twice, attempting to arrest the plaintiff's daughter on a bench warrant that had been recalled or suspended.  During their attempts, the deputies allegedly told neighbors that everyone who lived in the residence was a liar and a criminal.  The plaintiff brought several causes of action against the deputies, including defamation and slander.

On an issue of first impression, the appellate court ruled that the act of executing an arrest warrant is not protected activity under the Anti-SLAPP suit, at least under the circumstances of the case.  Although it is an act in furtherance of criminal prosecution, it is not an exercise of rights by the police officer; it is a mandatory duty performed at the direction of the court.  Because police officers have no discretion in whether to execute it, it is unlikely that the threat of lawsuits will chill that activity.  Further, the activity does not contribute to public discussion of a topic of public interest.  The alleged statements to the neighbors are not protected, because they were not made in a judicial proceeding or in preparation for litigation, particularly when they are not made about the persons who are the target of a criminal investigation.  Although the officers may ultimately be found immune, they must address the lawsuit through vehicles other than an Anti-SLAPP motion.

Substantial Evidence Standard Applies to Petition for Administrative Mandate Challenging Conditions Imposed on Business to Curtail Third-Party Crime

In Benetatos v. City of Los Angeles, published April 14, 2015, the Second District Court of Appeal, Division Five, affirmed a trial court decision denying a petition for writ of administrative mandate that sought to overturn the respondent city's determination that the petitioner's fast food restaurant constituted a nuisance, due to third-party criminal activity on and around the property, and the city's imposition of conditions on the restaurant's continued operation.  The restaurant contended that the trial court erred in applying a substantial evidence standard of review (under which the city's determination is upheld if any substantial evidence supports it) instead of a de novo standard of review (in which the trial court exercises its independent judgment on the evidence).  The appellate court affirmed the trial court's decision.  The de novo standard of review applies to review of decisions affecting fundamental vested rights, such as whether a business will continue to operate.  The petitioner failed to present evidence that the conditions imposed would severely affect the restaurant's ability to operate or drive it out of business.  The substantial-evidence standard for decisions affecting economic issues therefore applied.  The appellate court found substantial evidence in the record supporting the city's determination of a nuisance and the conditions the city imposed.

Attorneys' Billing to Public Entities Is Not Subject to the California Public Records Act

In County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California), published April 13, 2015, the Second District Court of Appeal, Division 3, issued a writ of mandate reversing a trial court decision requiring the petitioner county to produce to real party ACLU, under the California Public Records Act, billing invoices from law firms representing the county in lawsuits brought by county jail inmates alleging jail violence.  Some of the invoices did not relate to ongoing litigation, so that exception to the CPRA did not apply.  The appellate court therefore analyzed whether the CPRA exception for privileged documents.  That required the court to address the hitherto undecided question of whether billing invoices were attorney-client communications that were privileged in their entirety.  The court determined that they were; because they were communications provided in the course of the attorney-client relationship, related to ongoing representation, they were protected regardless of their content.  The court declined to address whether the information could be obtained from other, non-privileged sources.

Claim Alleging Water District Overcharged and Used Fees Improperly Do Not Support Judgment Based on Violating State Constitution Procedural Restrictions on Rates

In Great Oaks Water Co. v. Water District of Santa Clara, original opinion published March 26, 2015 (opinion on rehearing published August 12, 2015; second opinion on rehearing published December 8, 2015),  the Sixth District Court of Appeal reversed a judgment in favor of a water retailer granting a complete refund of a groundwater extraction fee the defendant water district charged the retailer.  The refund was granted on the ground that the charge violated both the District Act (the statute under which the water district was created) and Article XIIID of the California Constitution, which imposes procedural and substantive restrictions on fees imposed by public entities.  Although the reversal was on other grounds, the appellate court addressed an issue that would arise once the case was remanded:  whether the theory on which judgment was entered was reflected in the water retailer's pre-suit claim for damages.  The appellate court concluded it was not.

The claim alleged that the water district's fee violated the District Act because the district was overcharging, and because the fees were not being used for an improper purpose.  The claim did not give any indication that the water district would be asserting that the fee violated Article XIID of the California Constitution due to alleged procedural errors.  The variance was material, because it did not give the district notice of the acts alleged sufficient to permit it to investigate or to evaluate its potential liability and decide whether to settle.  In particular, the potential monetary recovery for the acts alleged would be a refund of overcharges, while the potential recovery under the Article XIIID theory of liability would be a complete refund of the fees.  The lack of evidence of investigation was irrelevant to this issue; the only relevant evidence was the claim, the complaint, and the allegations of liability in the litigation.  Because this was not a defect in the claim, the doctrine of substantial compliance did not apply.  The claim did not fairly reflect the Article XIIID theory of liability.  The retailer therefore cannot obtain monetary recovery on that theory.

Federal Court Must Exercise Its Discretion Regarding Compelling Testimony When Inmate Witnesses Refuse to Answer Questions

In Barnett v. Norman, published March 31, 2015, the 9th Circuit Court of Appeals reversed a judgment against a pro se prisoner who sued his guards under 42 U.S.C. section 1983 for use of excessive force.  The prisoner subpoenaed three fellow inmates to testify at trial.  All three, when called, refused to answer questions.  The magistrate judge presiding over the trial stated she could not do anything to compel the witnesses to cooperate.  The jury found against the plaintiff.

The appellate panel concluded that the magistrate judge had erred by failing to exercise her discretion and use her power to encourage truthful answers to fair questions.  A judge has several powers available to compel testimony, from asking additional questions herself, through questioning the witness outside the jury's presence on whether the witness is being threatened, to the "sledgehammer" of using her contempt power.  While a court has discretion in using these techniques, the court has no discretion to simply conclude it has no power to compel recalcitrant witnesses to testify.  The plaintiff was entitled to a new trial.