Government Liability Update

Natural Condition Immunity Applies to Death Caused by River Current, Even if Dam Remnant Affected Current

In Goddard v. Department of Fish and Wildlife, published December 23, 2015, the Fifth District Court of Appeal affirmed summary judgment in favor of the defendant department in a wrongful death action alleging dangerous condition of public property.  The decedent drowned in the Tuolumne river, downstream from the remnant of a dam.  The dam was owned by the City of Modesto.  In the 1970s, the department made a mid-channel breach in the dam to allow fish passage at low flows.  It also installed a fish ladder, which later washed away.  The plaintiffs alleged that the breach in the dam caused a strong current over the dam remnant that swept up the decedent, causing him to drown.  The trial court granted the department summary judgment on the ground that it neither owned nor controlled the dam or its remnant.

The appellate court affirmed summary judgment on an alternative ground that the parties had briefed before the trial court: Government Code section 831.2's immunity from public entity liability for injuries caused by natural conditions of unimproved public property, including any natural condition of any lake, stream, bay, river, or breach.  Case law establishes that the immunity applies even if a nearby man-made improvement affects a natural condition.  Here, the injury was caused by the current created by the dam remnant.  The current was a natural phenomenon that could be created by not only a dam remnant but also by natural objects such as rocks or trees.  Since the remnant merely duplicated a model common to nature, it was a natural condition as a matter of law.  Section 831.2 therefore immunized the department.

The appellate court also affirmed the trial court's ruling that, at the time of the injury, the department neither owned nor controlled the property that caused the injury.  The city, not the department, owned the dam.  Although the state owned the riverbed, the department was not the state agency that has jurisdiction over the riverbed.  Nor did the department have control over the dam at the time of the accident.  That the department breached the dam and installed a fish ladder in the past did not establish control; by statute, the department did not have jurisdiction over the ladder once installed.  Control at the time of the accident is required for liability, so the fact that the department could install the ladder in the past did not establish control.

Although Equitable Estoppel of Public Entities Disfavored, Extraordinary Circumstances Estop City That Promised to Build Parking Structure for Development from Declining to Build Structure

In HPT IHG-2 Properties Trust v. City of Anaheim, published December 21, 2015, the Fourth District Court of Appeal, Division 3 affirmed a trial court decision to issue a writ setting aside a conditional use permit the defendant city enacted.  The city planned to build an overpass.  The project required it to acquire land that would impact the plaintiffs' resort development, reducing the amount of parking available for the resort.  The city issued a conditional use permit for the development that set out the number of parking spaces required for the development, along with upgraded setback and landscape requirements.  The CUP was based in part on a parking study the city had approved.  The parking study showed a two-level parking structure on a piece of land the city would acquire.  The plaintiffs' asserted that the city had promised to build the parking structure and comply with the same setback and landscape requirements.  In reliance on the CUP, the plaintiffs designed their project with fewer hotel rooms, and with the required setbacks and landscaping.  After building the overpass, however, the city enacted a second CUP, the one at issue.  It allowed construction of a surface parking lot instead of the parking structure, and different setbacks and landscaping.  The trial court found that the city had made representations about the parking structure that it had changed after the plaintiffs relied on the representations; and that the city was estopped from issuing the CUP changing the plans for the parking.

The appellate court held that equitable estoppel is available against public entities only under extraordinary circumstances, and only where necessary to avoid great injustice.  But substantial evidence supported the trial court's conclusion that the elements of estoppel had been met; and that in light of the plaintiffs' acts in reliance on the defendant's representations, and their ignorance that defendants would change the design for the parking, extraordinary circumstances warranting estoppel were present.

Under California Public Records Act, Person May Seek Production of Documents Person Already Has; Public Interest in Response to Whistleblower Complaint Outweighs Privacy Rights in Records

In Caldecott v. Superior Court (Newport-Mesa School Dist.), published December 21, 2015, the Fourth District Court of Appeal, Division 3, issued a writ reversing a trial court's decision denying production of documents under the California Public Records Act.  The petitioner was the former executive director of human resources for the real party school district.  While he held that position, the petitioner filed a complaint against the district superintendent.  The petitioner alleged that the complaint alleged that the superintendent created a hostile work environment, and also alleged improprieties with money.  The district alleged that the complaint discussed only personnel matters. The school board responded in writing that it would take no action on the complaint.  Shortly afterward, the superintendent terminated the petitioner's employment, and the school board approved the action.  The petitioner sought production of the documents under the CPRA.   The trial court denied the petitioner's writ petition, on the ground that the petitioner already had the documents.

The appellate court held that the fact the petitioner already had the documents was not a ground for denying the request.  The motive of a person requesting documents under the CPRA is irrelevant.  Further, the petitioner sought the documents so that he could disseminate them without concern that the district would object.  The appellate court ruled that the documents were personnel documents, requiring the court to balance the privacy interest in the documents against the public interest in their disclosure.  Since the documents concerned allegations of conduct by a high-ranking official, the appellate court (after an in camera review) determined that the public interest in them outweighed privacy.  The court overruled the official information privilege objection to their production, ruling that production would not affect internal deliberation.  It directed the trial court, on remand, to review the documents for attorney-client privileged matters, which would not be subject to production.  It awarded the petitioner his attorney fees.

Court Has No Authority to Order Mental Examination of Parents as Part of Mental Examination of Minor Plaintiff

In Roe v. Superior Court (Hollister School Dist.), published December 18, 2015, the Sixth District Court of Appeal issued a writ reversing a trial court's order permitting a psychiatrist to interview the parents of a minor plaintiff who alleged that another minor student had molested him at school.  The minor sued the school district, through his father as guardian ad litem.  The minor's mother was also a plaintiff.  The school district had moved the court for an order permitting the mental examination of the plaintiff under Code of Civil Procedure section 2032.020, to include interviews of the parents by the examining psychiatrist.  

 

The court held that under Section 2032.020's language, a court has no power to permit the mental examination of a minor party's parents as part of the minor's mental examination.  The statute permits a court to order the mental examination of a party to the action, an agent of the party, or a natural person in the custody or under the care of a party.  Although the mother was a party, she was not a party for purposes of this order, which sought a psychiatric examination of only the minor plaintiff.  The guardian ad litem is not a party.  Neither parent is the minor plaintiff's agent, or is in the minor's custody or control. Therefore, the trial court could not order their interviews.

The appellate court declined to decide two other issues--whether the parents had a right to be present for the examination, and whether the plaintiffs had a right to production of copywritten testing materials--on procedural grounds.

Court Awarding Fees under 42 U.S.C. Section 1988 Must Explain Substantial Reduction of Claimed Fees; Settlement Permitting Fee Award under Section 1988 Does Not Permit Fee Award Under a Different Statute

In Kerkeles v. City of San Jose, published December 18, 2015, the Sixth District Court of Appeal reversed a trial court's decision that effectively reduced by more than 80% a fee award under 42 U.S.C. section 1988.  The parties had settled a civil rights decision.  The settlement agreement provided that plaintiff could seek in court a fee award under 42 U.S.C. section 1988.  The fee motion sought over $2 million, including a multiplier to the lodestar amount under the California Private Attorney General statute, Code of Civil Procedure section 1021.5.  The trial court's order deemed the hours expended excessive.  Yet the ultimate order did not reduce the number of hours used in the lodestar calculation.  Instead, it reduced the hourly fees of the counsel used in the lodestar calculation, and then reduced the total lodestar by half.  It also declined to award fees under section 1021.5.

 

The appellate court agreed that the plaintiff was not entitled to fees under section 1021.5, since the settlement agreement specified that plaintiff was entitled to fees under 42 U.S.C. section 1988.  It therefore applied only the standards for attorney fees under section 1988.  Under that statute, reduction of claimed attorney fees that are more than a "haircut" require an explanation of the reductions by the trial court.  Because the fee order here did not provide a sufficient explanation, the appellate court remanded the fee award to the trial court.

Because City Legislature Is Not "Business Establishment," City Regulation Setting Age Limit for Signing Rental Contracts Does Not Violate Unruh Act

In Harrison v. City of Rancho Mirage, published December 18, 2015, the Fourth District Court of Appeal, Division 2, affirmed a trial court decision dismissing an action for declaratory and injunctive relief after the trial court sustained the defendant city's demurrer.  The city amended an ordinance regulating short-term vacation rentals of private homes to require that a person over 30 sign a contract to be the responsible person for the rental.  The plaintiff, who rented his home out, was concerned that turning down a renter who was under 30 would expose him to an Unruh lawsuit.  He sued the city for violating Civil Code sections 51 and 51.2 of the Unruh Act.

The appellate court agreed with the trial court's ruling that the city's legislature was not a "business establishment" for purposes of the Unruh Act, and therefore was not subject to suit under the Act for imposing age regulations upon housing rentals.  The court agreed with previous California appellate decisions holding that municipal legislatures were not business establishments under the Unruh Act, and rejected a federal district court decision to the contrary.

California Supreme Court: Discretionary Approval of Design for Purposes of Design Immunity Does Not Require Inquiry Into the Approval Process

In Hampton v. County of San Diego, published December 10, 2015, the California Supreme Court affirmed the decision of the lower appellate court (summarized elsewhere on this Blog) upholding the summary judgment granted to the defendant county under Government Code section 830.6's design immunity.  The plaintiff was injured in an auto accident at an intersection.  The county moved for summary judgment based on design immunity.  The plaintiff argued that summary judgment on design immunity was improper because he contended that the intersection's sight distance violated county standards, and that the county had failed to introduce evidence that the public employee who approved the design approved the deviation from design standards.  The plaintiff contended that the county therefore failed to prove the discretionary approval element of design immunity.  

The Supreme Court unanimously ruled that the trial court had properly granted summary judgment.  The legislature's intent in passing the design immunity statute was to prevent juries from second-guessing public entity's and employees' reasonable design decisions.  The statute therefore grants immunity if the entity proves that the plan or design that allegedly caused the injury was approved in advance by a public entity's body or an employee granted discretion to approve the plan or design (or that it complies with standards so approved); and if the entity provides substantial evidence that the plan or design was reasonable.  Neither the language of the statute, nor the intent behind it, supports an interpretation that requires the entity to prove that the approving person or body considered deviation from standards to prove the discretionary approval element.  Conformance to standards is an alternative to discretionary approval of the design or plan.  Further, proving what the body or official considered in approving the design would be impractical or impossible for designs approved long ago.  The Supreme Court disapproved two lower court decisions to the extent they held otherwise:   Levin v. State of California (1983) 146 Cal.App.3d 410; and Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376.

(Pollak, Vida & Fisher represented the League of California Cities and the California State Association of Counties as Amici Curiae in the California Supreme Court proceedings in this case.)

Party Organizers Have Sufficient Possessory Interest in Premises to Assert 4th Amendment Rights

In Lyall v. City of Los Angeles, published December 4, 2015, the 9th Circuit reversed summary judgment granted police officers who entered a party at a warehouse without a warrant.  Although the court affirmed the jury verdict in the defendant officers' favor as to the issues that went to trial, it reversed the summary judgment granted on the ground that the party organizers did not have a sufficient expectation of privacy to state a 42 U.S.C. section 1983 cause of action for breach of 4th Amendment rights against unreasonable search and seizure.  Expectation of privacy is not the sole metric for 4th Amendment rights.  If there is an invasion into the property of one who has a sufficient possessory right in the property, that person has a right under the 4th Amendment not to be subject to unreasonable searches or seizures.  Because the party organizers had permission from the sublessor of the warehouse to not only be present at the warehouse, but use it for the party, restrict who could be there, and eject trespassers, they had a sufficient possessory interest to assert a 4th Amendment right against an allegedly unreasonable warrantless entry and search.

Law Enforcement Agency That Receives Report of Alleged Child Abuse Has Mandatory Duty to Cross-Report It; Officer Who Investigates Those Allegations Does Not

In B.H. v. County of San Bernardino, published November 30, 2015, the California Supreme Court affirmed in part and reversed in part a court of appeal's decision that a sheriff's department and the investigating sheriff's deputy owed no mandatory duty to a child to report a 911 call and the deputy's subsequent investigation to the county's child welfare agency.  A non-mandatory reporter called 911 and told the operator she suspected that the two-year-old plaintiff was being abused.  The operator dispatched the information to the sheriff's department, and requested that an officer look into the matter.  The deputy went to the home, examined the child, and did not conclude that abuse had occurred.  Later, the child was severely injured.  The injuries were likely caused by shaken-baby syndrome.  The plaintiff alleged that Penal Code section 11166, part of the Child Abuse and Neglect Reporting Act, imposed a mandatory duty upon the sheriff's department (Gov. Code, § 815.6) and upon the deputy (for which the sheriff's department would be vicariously liable under Government Code section 815.2) to cross-report the 911 call and the results of the investigation to the child welfare agency.

The Supreme Court ruled that the sheriff's department did have a mandatory duty to cross-report the 911 call.  Subdivision (k) of Penal Code section 11166 imposes a mandatory duty to cross-report to the county welfare or probation department every known or suspected instance of child abuse or neglect reported to it that is alleged to have occurred as a result of the action of a person responsible for the child's welfare.  The 911 call was an allegation of child abuse.  The court examined the statute's language, its legislative history, and its purpose, and concluded that the statute imposes a ministerial duty to cross-report allegations of child report that a law enforcement agency receives, such as a 911 call.  The statute therefore imposes a mandatory duty, and violation can give rise to a cause of action under Government Code section 815.6.

The court further concluded, however, that an officer investigating a report of alleged child abuse does not owe a mandatory duty to cross-report the results of her investigation.  If the initial allegations the agency receives are required to be cross-reported, there should be no mandatory requirement to cross-report the results of the investigation.  Further, the statutory provision for reporting investigation results, subdivision (a) of section 11166, only applies when a mandated reporter knows of or observes a child whom the reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Subdivision (a) therefore requires a degree of discretion that subdivision (k) does not.

Notice to Section 8 Housing Tenants of Payment Standard Reduction Violated Due Process and Mandatory Duty

In Nozzi v. Housing Authority of the City of Los Angeles, filed November 30, 2015, the 9th Circuit Court of Appeals reversed summary judgment granted in favor of the defendant housing authority, and ordered summary judgment entered in favor of the plaintiff class of Section 8 program tenants.  The housing authority reduced its payment standard, the maximum subsidy payment that the authority would provide for each apartment in the area.  That would result in an increase of the amount many tenants paid for their rents.  24 C.F.R. section 982.505(c)(3) required the authority to provide information about the change to the beneficiaries at their annual reexaminations following the decision, and advise them that their change will not go into effect until their following examination one year later.  The authority sent the beneficiaries a flyer with their notices of review determination.  The flyer set forth a notice of the lowered payment standard, couched in the language of the regulation.  The flyer did not define the terms within it.  It did not advise tenants that their shares of their rent might rise.  It did not provide contact information for tenants with questions about the notice.  A year later, thirty days before the payment standard was to change, the authority sent the beneficiaries notices of their subsidies and rents for the year under the new payment standard.  A class of tenants sued the housing authority under 42 U.S.C. section 1983 for denial of due process, and under state law for violation of mandatory duty (Government Code section 815.6).  The district court granted the authority summary judgment.

The 9th Circuit held that the housing authority had failed to provide the plaintiffs with sufficient notice of the change to meet due process standards.  The federal regulations created a property interest in the Section 8 beneficiaries in housing benefits that continue in existence for at least one year after the beneficiary is advised that his benefits may be decreased by a change to the payment standard, so that the beneficiary can prepare for the change.  They therefore had the right not to be deprived of that property interest without due process.  The notice required by due process is notice that is reasonably certain to actually inform the party.   The flyer was insufficient to meet the standard.  It failed to provide actual notice to anyone without a sophisticated knowledge of Section 8 payment calculations that the changes may result in the tenants paying more.  The other measures the authority took to inform the tenants were insufficient.  Although there were public hearings, they failed to give individual tenants notice of the changes in their rents.  The orientation training sessions that tenants received only briefly touched on payment standards, and were for many held years before this change.  The notice sent 30 days before did not satisfy the requirement for a year's notice.  In addition, the federal regulation created a mandatory duty that supported a cause of action under section 815.6 for violation of that duty.  Since the housing authority had a full chance to provide evidence, and did not raise any triable issues of fact, the 9th Circuit ordered summary judgment entered for the plaintiff class.