Government Liability Update

Inadvertent Disclosure of Privileged Documents in Response to Public Records Act Request Does Not Waive Privilege (Issue Before California Supreme Court)

In Newark Unified School District v. Superior Court (Brazil), published July 31, 2015, ordered published again March 17, 2016 the First District Court of Appeal, Division 1, issued a writ of mandate directing a trial court to vacate its order denying a temporary restraining order against distributing documents the district inadvertently distributed in response to a California Public Records Act request.  The considered whether Government Code section 6254.5, which prescribes that "disclosure" of a privileged document waives the privilege, applied to inadvertently-produced documents.  The court decided that it did not.  The legislature intended section 6254.5 to prevent public entities that released documents to one requester from denying the same documents to other requesters.  Further, interpreting "disclosure" as not applying to an inadvertent release of documents prevented the statute from conflicting with Evidence Code section 912, which holds that an inadvertent release of privileged information does not waive the privilege.

This holding conflicts with the one in Ardon v. City of Los Angeles (2014), formerly published at 232 Cal.App.4th 175, now depublished by grant of review by the California Supreme Court.  The Supreme Court will likely take up review of this case as well, to determine which interpretation of the Act is correct.

Update:  On October 14, 2015, the California Supreme Court granted review of this case, depublishing it.  Further action in the case is deferred until the Ardon case is decided.  On March 17, 2016, the California Supreme Court ordered the case published.

Local Agencies May Deny Proposed Mobilehome Park Subdivisions Inconsistent with The Open Space Element of Their General Plan

In Carson Harbor Village Ltd. v. City of Carson, published July 31, 2015, the Second District Court of Appeal, Division 8, concluded -- contrary to the court's earlier decision in the same case -- that the Subdivision Map Act requires a municipality to deny permission for a proposed mobilehome park conversion from rental to tenant ownership if the conversion is inconsistent with elements of the municipality's general plan; and that the portion of the Act governing hearings on mobilehome park conversions -- Government Code section 66427.5 -- does not bar denial on that ground.  A series of earlier lower appellate court decisions had interpreted section 66427.5 to bar rejection of proposed conversions based on considerations other than whether the procedure set forth by section 66427.5 had been followed.  In Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, the California Supreme Court held that section 66427.5 did not prevent municipalities from also applying other statutes that control subdivision approval when considering whether to approve conversions.  The court deemed this authority a change in the law that created an exception to the law-of-the-case doctrine.  Based on the reasoning in Pacific Palisades, the court determined that the portions of the Subdivision Map Act that required the subdivision to comply with the municipality's general plan apply to mobilehome conversions.  The court also determined, 2-3, that substantial evidence supported the city's conclusion that this conversion would conflict with the open-space element of the city's general plan.

County and Social Workers Not Liable for Alleged Violation of Due Process Concerning Foster Child Placement

In Marshall v. County of San Diego, published July 22, 2015, the Fourth District Court of Appeal, Division 1, affirmed summary judgment in favor of the defendant county and county social workers in a lawsuit brought by a foster parent under 42 U.S.C. section 1983 alleging violation of her due process rights.  The foster parent alleged that the social workers violated her due process rights by not giving her notice of an ex parte hearing to end the foster placement, by not giving her a report supporting the removal until the day of a hearing on her objection to the removal, and by purportedly making false and misleading statements to the court in the hearing.  She also alleged that a county policy was the moving force behind the constitutional violations.  She had obtained an appellate court writ in the placement proceeding vacating the removal decision based on lack of sufficient notice, and directing that she be provided a new hearing.  At the new hearing, the court declined to remove the child from his new foster placement.

The appellate court ruled that the social workers were entitled to qualified immunity regarding the lack of proper notice.  The facts showed that the plaintiff had notice (verbal notice that complied with statute) and an opportunity to respond (the hearing on the objection) before the child was removed.  The court also affirmed summary adjudication of the claim that the social workers made misrepresentations to the court.  Although her right not to have the placement terminated by judicial misrepresentations was clearly established, the undisputed facts showed no material judicial misrepresentations or misleading statements.  The county was also entitled to summary judgment, because there was no evidence of an unconstitutional county policy that caused her a deprivation of constitutional rights.

Law Firm That Successfully Petitions for Release of Public Records Entitled to Attorney Fees if Purpose is to Support Clients' Cases

In Law Offices of Marc Grossman v. Victor Elementary School Dist., published July 21, 2015, the Fourth District Court of Appeal, Division 2 reversed a trial court order denying the petitioner law firm's request for attorney fees under the California Public Records Act.  The firm had sought records of the amount the school district expended to defend itself in an action the firm brought on behalf of a student.  The firm petitioned the trial court for a writ of mandate to compel production of records.  The petition alleged that the firm sought information pertinent to other actions it was pursuing.  When the trial court denied the petition, the firm successfully petitioned the appellate court for a writ.  Both writ petitions were brought in the law firm's own name.  The appellate court ordered that the firm be granted its attorney fees.  The defendant contested only the amount of fees to be awarded.  The trial court, however, determined sua sponte that the fee request was barred by the rule that a law firm cannot obtain fees for representing itself.

The trial court ruled that the trial court had elevated form over substance.  Since the firm sought the records for the purpose of representing clients other than the firm itself, it was entitled to attorney fees.

County Is Not Vicariously Liable for Social Worker's Sexual Assault on Foster Child

In Z.V. v. County of Riverside, published July 16, 2015, the Fourth District Court of Appeal, Division 3, affirmed summary judgment in favor of the defendant county in a suit brought by a foster child whom a county social worker sexually assaulted.  The appellate court ruled that under the undisputed facts, viewed in the light most favorable to the plaintiff, the county could not be held vicariously liable for the assault under respondeat superior.  The court analyzed Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, in which the California Supreme Court held that a police department could be held liable for a police officer's on-duty rape of a detained person, and concluded that to the extent it remained viable law, it applied only to a police officer's on-duty acts.  Even if Mary M. could apply to a social worker, the court continued, it would not apply here.  The assault occurred after the social worker had dropped the plaintiff off at a foster placement, had gone home, and was off-duty.  That the social worker used his position to persuade the plaintiff to contact the plaintiff, leave the foster home, get into the social worker's van (which had the county's logo), go to a liquor store, and go to the worker's apartment did not transform the act into the sort of on-duty act that gave rise to vicarious liability under Mary M.  The court also rejected a 9th Circuit opinion interpreting California law,  Lu v. Powell (9th Cir. 2010) 621 F.3d 944, as misinterpreting state law on respondeat superior liability for sexual misconduct.  The court also rejected the alternative theory of negligent supervision of the social worker, since there was no evidence any supervisor had notice of the social worker's propensity to sexually assault a foster child.

Prosecutors Are Entitled to Absolute Immunity for Obtaining Warrants for Civil Forfeiture, But Only Qualified Immunity for Executing the Warrants

In Torres v. Goddard, published July 16, 2015, the 9th Circuit Court of Appeals affirmed in part and reversed in part a 42 U.S.C. section 1983 lawsuit against Arizona state prosecutors for executing warrants to seize thousands of wire transfers allegedly connected with smuggling illegal aliens over the border.  The 9th Circuit agreed with the district court that the absolute immunity that applies to criminal prosecution is also available to prosecutors who pursue civil forfeiture actions.  Whether absolute immunity applies depends on the conduct for which the prosecutor is sued.  The actions of the defendant prosecutors in applying to the court was subject to absolute immunity, because they were intimately associated with the judicial phase of civil forfeiture.  But the prosecutors were entitled only to qualified immunity for serving and executing the warrants.  Under Arizona law, police officers, rather than prosecutors, serve and execute warrants.  The prosecutors were therefore acting as police officers rather than prosecutors in executing and serving the warrants, and were entitled only to the qualified immunity police officers enjoy.

Prevailing Parents in IDEA Action Not Entitled to Attorneys' Fees Unless Child Has Been Determined to Need Special Education Services

In Meridian Joint School Dist. No. 2, v. D.A., published July 7, 2015, the 9th Circuit Court of Appeals reversed an order granting parents in an action under the Individuals with Disabilities Education Act their attorneys' fees.  The 9th Circuit affirmed the district court's rulings that the parents' child was entitled to an independent education evaluation at the taxpayers' expense, and that the parents were prevailing parties.  But the  the IDEA's fee-shifting provision, 14 U.S.C. section 1415(i)(3)(B), provides that attorneys' fees may be awarded to a prevailing party who is the parent of a child with a disability.  Whether the plaintiffs' child had a disability was not decided in the action.  Therefore, under the statute's plain language, the parents were not entitled to their attorneys' fees.