Government Liability Update

City That Failed to Make Required Findings in Five-Year Report Was Properly Ordered to Refund Unspent Development Impact Fees

In Walker v. City of San Clemente, published August 28, 2015, the Fourth District Court of Appeal, Division 3 affirmed a trial court's order to the defendant city to refund to developers $10.5 million in development impact funds that the city collected but did not spend for the intended purpose of creating more beach parking.  The city began collecting the fee when the development was first planned.  Subsequently, beach parking proved adequate, and the city's only action toward increasing beach parking was purchasing a vacant lot that it did not turn into a parking lot.  Government Code section 66001, part of the Mitigation Fee Act, requires a municipality that collects a development impact fee but does not expend all of it to make a report every five years setting forth findings that provide reasons to retain the money.  The city made the report, but the court concluded that the report did not set forth findings justifying retaining the money.  Refund was the proper statutory remedy.

City Engineer's Authority to Place and Maintain Traffic Control Devices Is Not Authority to Approve Plan or Design for Purposes of Design Immunity

In Castro v. City of Thousand Oaks, published August 31, 2015, the Second District Court of Appeal, Division 6, reversed summary judgment granted to the defendant city in a dangerous condition of public property case.  An adult and children were crossing a wide street.  The adult pressed the button for a pedestrian signal beacon before crossing.  The group started crossing, and were hit by a van.  The driver did not see the warning beacon or the people crossing.  The evidence showed that safety improvement project plans for the intersection were approved by the city council.  The beacon was not included in the plans.  After the improvements were completed, the city engineer authorized purchasing and installing the beacon.  The  The city code gives the city engineer discretion to install and maintain traffic control devices when in his opinion they are necessary for public safety.  The engineer was also authorized to install the beacon without city council approval because the cost was under the necessary minimum for approval.  The trial court granted the city summary judgment, based both on Government Code section 830.6 and a ruling that the intersection was not a dangerous condition of public property.

The appellate court ruled that the city was not entitled to design immunity, because the beacon was not part of a plan or design approved in advance of construction by a legislative body or an official delegated the authority to approve it.  Neither the city engineer's authority to install and maintain traffic devices nor the fact that the expenditure did not require city council approval amounted to an authorized approval of a design or plan for the beacon before construction.  The appellate court also found a triable issue of fact on whether the intersection was dangerous.  Under the circumstances, a jury could conclude that the beacon was a trap that lured pedestrians into a false sense of security when crossing.

Fire Protection Immunity Applies to Public Entity's Failure, as Residential Landlord, to Replace Fire Extinguisher

In Puskar v. City and County of San Francisco, published August 27, 2015, the Fifth District Court of Appeal affirmed summary judgment for the defendant public entity.  The plaintiff was a ranger at Yosemite.  He lived in a residential unit he rented from the defendant entity.  The entity provided a fire extinguisher to residential units.  The entity took the plaintiff's fire extinguisher for replacement, but did not replace it for nearly a month.  The plaintiff was injured by a grease fire.  He alleged that the absence of a fire extinguisher in the unit was a dangerous condition of public property under Government Code section 835.

The appellate court held that the fire protection immunity of Government Code section 850.2 applied, and disposed of the lawsuit.  The immunity prescribes that a public entity that has undertaken to provide fire protection may not be held liable for failure to provide or maintain sufficient equipment or fire protection facilities.  That includes fire extinguishers.  The court rejected the argument that the immunity applies only when an entity is acting in a governmental role, rather than the proprietary role of serving as a landlord.  The court held that nothing in the statute or its legislative history confines the immunity to governmental functions.  It disagreed with language in Vedder v. County of Imperial (1974) 36 Cal.App.3d 654 that so held.  Vedder was distinguishable, in that the dangerous condition in that case was not the failure to provide fire protection equipment but rather negligently keeping flammable material on the premises.

Police Officers' Obligation to Disclose Exculpatory Evidence Was Well-Established Law in 1984

In Carillo v. County , published August 26, 2015, the 9th Circuit Court of Appeals affirmed denial of summary judgment based on qualified immunity to police officers in two separate lawsuits brought by plaintiffs who were imprisoned on murder charges for decades before being released on habeas corpus petitions.  In one case, police allegedly did not disclose evidence that a person other than the plaintiff had made a prior attempt on the victim's life, or that one of the eyewitnesses was uncertain of the description of the shooter.  In another case, police allegedly did not disclose that a witness had picked multiple photos of the shooter, only to be dissuaded by the investigating officer, who then approved the picking of the plaintiff's photo; and that when the witness was planning to recant his testimony, an officer allegedly threatened him with negative consequences.

The 9th Circuit held that as of the time these events happened--1984 and 1991, respectively--the U.S. Supreme Court had held in Brady v. Maryland, 373 U.S. 83 (1963) that prosecutors had a duty to disclose exculpatory evidence to defendants; and the 9th Circuit had held in In United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978) that investigating officers had the same duty.  That another circuit held otherwise (before the U.S. Supreme Court settled the matter) did not change the analysis; if the law is established in the circuit that governed the officers, the law was established for purposes of qualified immunity.  Further, it was well established that the type of evidence allegedly undisclosed was the type that should be disclosed under Brady and Butler.

Police Do Not Conduct Search under Fourth Amendment by Entering Public Areas of Business

In Patel v. City of Montclair, published August 18, 2015, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit a hotel owner brought against police officers who came onto the public areas of a hotel and cited the hotel for code violations.   The plaintiff alleged the visit, without a warrant, violated the 4th Amendment The court ruled that under the "open fields" doctrine, officers do not conduct a "search" under the 4th Amendment, requiring a warrant, if the officers merely enter the public areas of a business.

Courtroom Deputy Not Entitled to Qualified Immunity for Arresting Defense Attorney to Bring Her to Courtroom

In Demuth v. County, published August 14, 2015, the 9th Circuit reversed in part a district court's decision, after a bench trial, that a courtroom deputy sheriff was entitled to qualified immunity for briefly arresting a public defender and bringing her to court.  The public defender had a hearing in the courtroom for one of her clients that day, although it was not for a specific time.  She appeared in court, and then went to her office in the building to work.  The presiding referee asked the courtroom deputy sheriff to page the public defender.  He tried several times without success.  The referee told the deputy that she ordered the public defender to come to the courtroom, and that, if she refused, the public defender's supervisor would have to come in and explain.  The deputy went to the office suite and told the public defender to come to court.  The public defender replied that if he wanted her to come right now, he would have to arrest her.  He arrested her and led her to the courtroom, releasing her after 11 minutes.

The panel concluded that qualified immunity was not appropriate, because the deputy could not reasonably believe he had grounds for a warrantless arrest, and no reasonable officer could have understood the referee as ordering that the public defender be forcibly brought to court.  Further, no reasonable officer could have understood the public defender's statement as anything other than a snide way of refusing to come.

Entity May Be Liable for Dangerous Condition of Public Property That Causes Injury to Victim of Third-Party Conduct, Even If the Condition Did Not Cause the Third-Party Conduct

In Cordova v. City of Los Angeles, published August 13, 2015, the California Supreme Court reversed summary judgment granted to the defendant city in a lawsuit under Government Code section 835 alleging that the deaths of the plaintiffs' decedents were caused by a dangerous condition of public property. While the car containing the decedents was driving on the inside lane of a boulevard, another vehicle veered into the car's side.  Both vehicles were traveling over the speed limit.  The impact forced the decedents' car into a grassy median, where it struck a larger tree planted seven feet from the roadway.  The decedents were killed.  The plaintiffs introduced expert evidence that the tree should not have been planted so close to the roadway.  The trial court granted summary judgment on the ground that no property condition caused the other driver to hit the decedent's car.  The appellate court affirmed.

The California Supreme Court unanimously held that to hold a public entity liability for an injury caused by a property condition, the plaintiff must prove that the property was dangerous (that it posed a substantial risk to users with due care) and that the condition caused the plaintiff's injury.  When a third party's conduct contributes to causing the injury, the plaintiff need not prove that the property condition caused the conduct.  Even where the accident would not have occurred but for the third party's conduct, the entity may be held liable if the property was dangerous and it contributed to causing the injury.  

The court cautioned that it was not holding that a public entity may be held liable any time a third party's conduct causes a motorist to leave the road and strike a hard fixed object by the road.  The plaintiff must still prove that it is unreasonable to place that object there, and that the object poses a substantial risk that motorists will strike it if they are driving with due care.  Further, even if the plaintiff proves those elements, the entity may establish design immunity if the placement was part of an approved design.

Government-Owned Transit Company Is Entitled to Reject Advertisement on the Ground It Contains False Information

In American Freedom Defense Initiative v. King County, published August 12, 2015, the 9th Circuit Court of Appeals affirmed a district court decision denying the plaintiff organization a preliminary injunction directing the defendant county's public transit agency to display the organization's advertisement on the exterior of the agency's buses.  The State Department had submitted an ad to the agency depicting several faces, calling them "The Faces of Global Terrorism," listing names, and stating, "Stop a terrorist.  Save lives.  Up to $25 million reward."  The agency received complaints from the public about the ad, including concerns that it might increase mistreatment of minorities.  The agency began reevaluating the ad, and the State Department pulled it.  The plaintiff organization then submitted an almost identical ad, featuring the same headline and photos.  It stated, "The FBI is offering up to $25 million reward if you help capture one of these jihadis."  This information was false; the State Department, not the FBI, was offering the reward, and the maximum reward for capturing any one of the pictured persons was $5 million.  The agency rejected the ad, on the ground (among others) that it was false.

The 9th Circuit noted that it had previously ruled that advertising on the buses was a nonpublic forum.  As such, restrictions on advertising accepted did not violate the 1st Amendment if they were reasonable and viewpoint neutral.  Barring ads that contain objectively and demonstrably false statements, where the circumstances of the case do not give rise to an inference of unreasonableness or viewpoint-based discrimination, is both reasonable and viewpoint neutral.  The court limited its holding to misstatements of fact that can be corrected.  It also noted that rejecting advertisements based on trivial misstatements might, depending on circumstances, violate the 1st Amendment.