Government Liability Update

Conflicting Decisions on Whether a Minor Whose Timely Late-Claim Application Is Denied Must Petition Court for Relief

 

******Update:  Review was granted in this case on December 16, 2015.  The decision is no longer citeable.*******

In J.M. v. Huntington Beach Union High School District, published September 30, 2015, the Fourth District Court of Appeal, Division 3 ruled that a minor who presents an untimely claim for damages, and who files a timely application for leave to present a late claim that is denied by the public entity, must timely petition the trial court for relief from the claim statutes.  In doing so, the appellate court expressly disagreed with the decision of the Second District Court of Appeal, Division 3, in E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736.

The minor in J.M. failed to present a claim to the defendant school district within six months of the date of his injury, which was when his cause of action accrued.  He presented an application for leave to present late claim to the district within a year of his injury.  Government Code section 911.6, subdivision (b)(2), prescribes that the public entity "shall grant" an application for leave to present a late claim if it is presented within a year after accrual.  The district did not act on the application.  Under Government Code section 911.6(c), the application is denied by operation of law if the public entity does not act on it within 45 days.  Almost a year after filing the application, the plaintiff filed a petition for relief with the trial court under Government Code section 946.6.  The petition was denied as untimely.

The appellate court affirmed the denial.  It ruled that if a timely late-claim application is denied by the entity, either by entity action or by operation of law, the plaintiff must petition the court for relief within six months of the date the application was denied or deemed denied, or else the plaintiff is barred from pursuing a lawsuit.  Despite section 911.6(c)(2)'s language that the entity "shall" grant a timely minor's application, that does not change subdivision (b)'s rule that if the application is not acted on within the prescribed time it is deemed denied.  Further, the entity has no obligation to send a notice of denial if it allows denial by operation of law.

The appellate court declined to follow E.M., which held that if a minor files a timely late-claim application that the entity denies, the minor need not petition the trial court for relief since the minor was entitled to late-claim relief anyway.  The J.M. court ruled that E.M. did not interpret the statutes correctly.

In light of this conflicting authority, this case may end up before the California Supreme Court.

 

 

Relieving a Peace Officer from Duty Does Not Immunize the Officer from Discipline

In Negron v. Los Angeles County Civil Service Commission (County of Los Angeles), ordered published September 29, 2015, the Second District Court of Appeal, Division 2, reversed a judgment granting a peremptory writ of mandate to a sheriff's deputy concerning his discharge.  While the plaintiff deputy was on unpaid, relieved-of-duty status, he was arrested and pled guilty to driving under the influence; he was uncooperative and belligerent with investigating CHP officers; he drove with a suspended license; and he made false statements to the supervisor to whom he reported during the time he was off-duty.  His department discharged him.  The trial court rendered a judgment directing that a writ issue directing the defendant Civil Service Commission to set aside its decision upholding the plaintiff's discharge.  The trial court concluded that under Garvin v. Chambers (1924) 195 Cal. 212, a peace officer could not be disciplined for misconduct during the time he was relieved of duty.

The appellate court held that Garvin did not apply.  The officer in Garvin was discharged for insubordination for declining to meet with the chief of police without an attorney.  The California Supreme Court ruled that he could not be disciplined for insubordination while he was relieved of duty and therefore could not be ordered to perform any duty as an officer.  Here, the plaintiff was discharged for conduct independent of his duty as an officer.  Further, that conduct violated the department's rules; and because the deputy identified himself as a deputy, the conduct was a discredit to the department.

Physician Not Entitled to Qualified Immunity for Allegedly Coercing Parents to Leave Baby at Hospital Unnecessarily So That She Can Investigate for Child Abuse

In Jones v. County, published September 21, 2015, a divided panel of the 9th Circuit Court of Appeals affirmed a district court decision denying a physician's motion for summary judgment based on qualified immunity.  The physician, the medical director of a public hospital's Suspected Child Abuse and Negligence team, became concerned when a baby who had been brought to the hospital with injuries from falling down stairs, released, and then brought back with rib fractures, had sustained the rib fractures through abuse.  She asked the parents to bring the baby back to be hospitalized for tests, even though the tests could be conducted on an out-patient basis.  When the parents grew concerned, the physician enlisted others to persuade the parents to "play ball" and that if they did not the baby could be detained.  When the baby was checked in, the doctor stationed a "sitter" in the room so that the parents would not be alone with the child.  The parents eventually sued the doctor for violating their constitutional liberty rights to their child.

The majority held that the doctor was not entitled to qualified immunity, because the evidence, viewed in the light most favorable to the parents, showed that a reasonable physician in the plaintiff's position would have known that she was detaining the baby, without a warrant or reasonable cause; and that doing so would violate the parents' 14th Amendment Due Process rights and their 4th Amendment right to be free from unreasonable searches and seizures.  Although existing case law looked at the standards for social workers and police officers detaining children without a warrant or reasonable cause, the court determined that, viewing the facts in the light most favorable to the plaintiffs, the physician was acting as an investigator, not a physician.  

The court also rejected the doctor's arguments she was entitled to summary judgment on the state law claims based on statutory immunity.  The Reporter's Privilege under Penal Code section 11172(a) did not apply, because of the evidence that the doctor was usurping the authority of the Department of Children and Family Services regarding the baby.  Government Code section 820.2 immunity did not apply, because no statute gave the physician discretion to act as she allegedly did.

School District Sued for Failing to Prevent Employee's Sexual Misconduct Toward Student May Not Raise Student's Comparative Fault or Consent As a Defense, And Cannot Introduce Evidence of Minor's Sexual History

In S.M. v. Los Angeles Unified School District, published September 16, 2015, the Second District Court of Appeal, Division 5 reversed a defense verdict in a lawsuit against the defendant district arising out of a district teacher's sexual misconduct toward a middle school student.  

The appellate court held that the trial court erred in giving a comparative fault instruction.  The court held that comparative fault has no application in a case involving the sexual abuse of a minor student by an adult teacher in a position of authority in a public school setting. The district based the comparative fault defense on the student's consent to the relationship The student's lack of mature judgment in cooperating with her abuser, the court held, was a source of the district's responsibility to her, not a partial excuse from that responsibility.

The appellate court also ruled that the trial court erred in instructing the jury that the minor could consent to the relationship.  The issue of consent, the court ruled, has no place when the minor is the victim of a crime.

The appellate court further ruled that the trial court improperly admitted evidence of the minor's sexual history on the question of the extent of harm.  Under Evidence Code section 1106, the sexual history was not admissible.

The appellate court also held that the trial court improperly instructed the jury that the standard of liability for the district's supervisory and administrative personnel's alleged negligent hiring, supervision, and retention of the teacher included whether they knew or should have known of the teacher's "propensity" for sexual abuse of minors.  Because "propensity" implies a requirement that the employee have a history of sexual abuse, the proper standard is actual or constructive knowledge of the employee's potential for sexual abuse of minors.

The court noted that recent legislation (Civil Code section 1780.5.5, and Evidence Code section 1106, as amended) confirms that defendants cannot raise a minor's consent as a defense in a lawsuit arising out of a minor's sexual relationship with an adult in a position of authority over a minor, which would include a teacher.

Mobile Home Park May Not Use "Private Takings" Theory to Avoid Application of Regulatory Takings Test to Rent Control Challenge

In Rancho De Calistoga v. City of Calistoga, published September 3, 2015, the 9th Circuit affirmed dismissal of a mobile home park's as-applied challenge to a city's mobile home park rent-control ordinance.  The ordinance included an annual rent increase of a set amount, and a mechanism for park owners to seek a higher increase.  After the park sought an increase, and received an increase smaller than the amount it sought, it sued the city for violation of the takings clause and equal protection.  Applying the Penn Central regulatory takings factors, the court concluded that the regulatory takings claim could not succeed.  A mere diminution of value of the park was not a taking.  The park had no reasonable investment-backed expectation of being free from regulation, including rent control, given that this was a highly-regulated field.  The park could not argue that its right to a fair rate of return was being taken, because the ordinance included a formula for providing a fair rate of return.  Further, the court has long given its imprimatur to rent-control ordinances.

The court then rejected the park's alternative theory that the ordinance was a "private taking" because any public purpose of the ordinance was pretextual. A true private taking is where the government takes property from one person and gives it to another.  That did not occur here.  The park could not use a "private taking" theory to evade the Penn Central analysis for regulatory takings.