Government Liability Update

Public Employee Denied Fair Administrative Hearing Because Decisionmaker Relied on Evidence Outside Record on Issue of Employee's Credibility

In Pinheiro v. Civil Service Commission for the County of Fresno, published March 29, 2016, the Fifth District Court of Appeal reversed a trial court decision denying the plaintiff writ relief under Code of Civil Procedure section 1094.5 challenging the employee's dismissal.  The employee appealed his dismissal to the county's civil service commission, which held a hearing on the dismissal.  The commission issued a 129-page decision upholding the dismissal.  In the decision, the commission relied on its memory, and the transcript, of another hearing in which the employee had testified in concluding that the employee was not credible.  When the employee challenged this decision in the writ proceeding, the trial court agreed that the commission should not have relied on evidence outside the record of the hearing in the employee's appeal.  But because the references to the outside material were a small part of the decision, the trial court concluded that the error was not harmful.

The appellate court disagreed.  The commission's finding on credibility was the crux of its decision.  Its reliance on evidence outside the record in determining lack of credibility denied the employee a fair hearing.

Natural Condition Immunity Applies to Campground Tree That Falls on Person

In Alana M. v. State of California, published March 29, 2016, the First Appellate District, Division 3, affirmed summary judgment granted the state in a lawsuit against the state brought by a child injured while camping in Portola Redwood State Forest when a tree fell on her.  The trial court ruled that Government Code section 831.2's immunity applied.  Section 831.2, the natural condition immunity, applies to injuries caused by natural conditions of unimproved public property.  The plaintiff conceded that the tree was a natural condition, but argued that because improvements were built to the campsite, and the tree was subject to the state's Tree Hazard Program (designed to remove dangerous trees), the property was not unimproved.  

The appellate court held that because there was no evidence of artificial changes to the tree or the area where the tree was located, and no evidence that artificial improvements or human conduct contributed to the danger of the tree, the tree was a natural condition of unimproved property.  It rejected the plaintiff's arguments that the campground improvements increased the danger by encouraging people to be present when a tree fell in the area; that argument would defeat the entire purpose of the immunity--encouraging public entities to provide natural land for public use.  It also rejected the argument that the tree hazard program established that the tree was on improved property, since no evidence supported that contention.

Prison Litigation Reform Act's Screening Statute Permits District Court to Dismiss Claim Based on Qualified Immunity

In Chavez v. Robinson, published March 29, 2016, the 9th Circuit reversed a district court order dismissing a pro se inmate's civil rights complaint against his probation officer and his therapist. After granting the plaintiff in forma pauperis status, the district court sua sponte dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(iii).  That statute, part of the Prison Litigation Reform Act, requires a district court to dismiss an action by an inmate proceeding in forma pauperis if the action seeks monetary relief against a defendant who is immune from such relief.  The district court concluded that qualified immunity barred the plaintiff's actions against the probation officer and therapist.

The 9th Circuit agreed with the district court that the statute applied to qualified immunity as well as absolute immunity.  A district court may dismiss a claim on qualified immunity grounds under 8 U.S.C. § 1915(e)(2)(B)(iii), but only in it is clear from the complaint that the plaintiff can present no evidence that could overcome a defense of qualified immunity.  Although the statute permits pre-service dismissal based on qualified immunity, that dismissal is appropriate only in limited circumstances.  Plaintiffs do not have to anticipate or plead around qualified immunity defenses in their complaints.  Since the plaintiff's complaint did not clearly show that he would be unable to overcome qualified immunity, the district court erred by dismissing the civil rights claim sua sponte.

For Delayed-Discovery Molestation Causes of Action That Predate 2009, Claim Is Timely If Presented within Six Months of Discovery of Molestation if Code of Civil Procedure 340.1 Requirements Satisfied

In Rubenstein v. Doe 1, published on March 22, 2016, the Fourth District Court of Appeal, Division 1, reversed dismissal after demurrer of a lawsuit alleging that the adult plaintiff was molested by her high school track coach when she was 15-16.  The alleged molestation took place before 2009, so Government Code section 904.1 (which exempts childhood molestation causes of action from the Government Claims Act) did not apply.  The court rejected the defendant school district’s argument that because the plaintiff did not apply for leave to file a late claim within one year of the molestation ending, the trial court lacked jurisdiction to grant the plaintiff’s petition for relief from the claim requirements under Government Code section 946.6.  The date of accrual is governed by Code of Civil Procedure section 340.1, which sets the date of accrual for molestation claims against private defendants.  That statute preempts common law delayed-discovery accrual theories, but imposes a statutory delayed-discovery scheme.  Under it, an action is timely if filed by the time the plaintiff is 26 years old or within three years of the plaintiff appreciating childhood molestation was wrongful.  If the defendant is an entity, the latter standard applies if the entity had actual or constructive knowledge of the molestation and did not act sufficiently in response.  The plaintiff here was over 26, but the ultimate facts alleged in her complaint were sufficient to establish (for purposes of the demurrer) that she was ignorant of the wrongfulness of the molestation, that she presented her claim within six months of appreciating the wrongfulness of the molestation as an adult, and that the school district had actual or constructive knowledge of the molestation and did not act properly in response. 

The court also held that because the plaintiff filed her complaint and certificates of merit regarding the delayed discovery when she filed her petition, she did not have to re-file them after obtaining late-claim relief.  The court agreed with the trial court that the certificates were insufficient, and that the plaintiff should have obtained in-camera review of them before serving the district.  But the trial court erred in sustaining the demurrer without leave to amend on these grounds.  It should have granted the plaintiff leave to amend the certificates and complaint, and obtain in-camera review of the certificates before the amended complaint was served.

Inadvertent Disclosure of Privileged Document in Response to California Public Records Act Request Does Not Waive Privilege

In Ardon v. City of Los Angeles, published March 17, 2016, the California Supreme Court reversed a decision by the lower appellate court, and resolved a dispute between the lower appellate courts (discussed in earlier posts in this blog) over whether a public entity's inadvertent disclosure of a privileged document in response to a California Public Records Act Request waives the privilege, allowing the recipient to keep and use the documents and disseminate them to others.  The issue turned on interpretation of Government Code section 6254.5, part of the CPRA, which generally provides that "disclosure" of a public record waives any privilege.  After examining the statute, its history, and the law on inadvertent disclosures in litigation, the Supreme Court interpreted "disclosure" to refer only to an intentional, voluntary and knowing disclosure.  The statute's intent is to forbid public entities from intentionally disclosing a record to one person who requests it, and then refusing to disclose it to another.  But it does not apply to inadvertent disclosures.  

Here, the records the city disclosed to the attorney for a plaintiff suing the city had been withheld from discovery in the litigation, and listed in a privilege log.  These facts indicated that the disclosure was inadvertent.

The court ordered published another case on the subject on which it had granted review, Newark Unified School Dist. v. Superior Court (July 31, 2015, A142963) __ Cal.App.4th __, __, [pp. 11-12]), review granted Oct. 14, 2015, S229112, ordered pub. Mar. 17, 2016.

County Substituted Into Case in Place of Sheriff's Department Does Not Get New Deadline to Appeal

In Melendres v. Maricopa County, published March 7, 2016, the 9th Circuit Court of Appeals dismissed an appeal as untimely.  The plaintiffs had filed a class action against Maricopa County in Arizona, the Maricopa County Sheriff's Office, and the sheriff.  During the litigation, the parties stipulated to dismiss the county as a defendant, without prejudice.  The district court ruled for the plaintiffs.  On appeal, the 9th Circuit held that based on a ruling by the Arizona state court of appeals, the Sheriff's Office was a non-jural entity (i.e., one that cannot be subject to a lawsuit).  The 9th Circuit ordered the county substituted back into the action as a substitute for the Sheriff's Office.  The county then filed an appeal from various district court orders rendered over a year before.

In federal court, the time to appeal an appealable order or judgment is 30 days.  There are no equitable exceptions.  The county did not receive additional time to file an appeal merely because it was substituted back into the action while the case was on appeal.