Government Liability Update

Public Employee's Discrimination/Retaliation Action Not Subject to Anti-SLAPP Special Motion to Strike Merely Because It Involves Protected Communication

In Nam v. Regents of University of California, published July 29, 2016, the Third District Court of Appeal affirmed the denial of the defendant's Anti-SLAPP special motion to strike.  The plaintiff, a resident in the UC Davis Medical Center's anesthesiology department, alleged she was retaliated against for an e-mail she sent criticizing the department's policy on allowing resident to intubate patients, and for resisting the program director's alleged sexual advance.  The defendant contended that the alleged retaliation--written warnings to the plaintiff, investigations into her based on complaints received, and a written notice of termination--were acts protected by the First Amendment, and her suit was therefore a SLAPP suit.  The appellate court concluded that the gravamen of the plaintiff's suit was not an attack on protected activity, but rather alleged harassment and retaliation.  The action was therefore not a SLAPP suit.  If the rule were otherwise, most harassment and retaliation claims by public employees against public entities would be subject to anti-SLAPP motions to strike.  Although the defendant's claims might succeed at summary judgment, they were not a ground for attacking plaintiff's lawsuit at the pleading stage.

Court May Not Reclassify Damages Action or Late Claim Petition as Habeas Corpus Petition

In Cox v. Superior Court (Kernan), published July 22, 2016, the Third District Court of Appeal issued a writ directing the trial court to entertain the plaintiff's Government Code section 946.6 petition for relief from the Government Claim Act's claim-presentation requirements. The plaintiff, a pro per state prison inmate, filed a complaint for damages against the Department of Corrections, and the late-claim petition. The trial court struck the complaint and and ordered it refiled as a habeas corpus writ petition , then denied the petition.

The court ruled that while a court has discretion to treat one sort of writ petition as another when procedurally proper to do so, it may not do so in a way that limits the petitioner's legal remedies. A petitioner cannot seek damages via habeas petition, so the trial court could not reclassify the complaint or petition as seeking habeas relief.

Bailiff Is Not Entitled to Absolute Immunity for Carrying Out Judge's Orders with Excessive Force, But Is Entitled to Qualified Immunity

In Brooks v. Clark County, published July 7, 2016, the 9th Circuit Court of Appeals reversed an order denying a courtroom marshal's motion to dismiss a 42 U.S.C. section 1983 lawsuit alleging that the marshal used excessive force in carrying out a judge's order to remove a bail enforcement agent from the judge's courtroom.  The 9th Circuit affirmed the district court's ruling that the marshal was not entitled to absolute judicial immunity.  The court found no policy reason to extend that immunity to courtroom officials such as bailiffs and marshals.  Instead, the acts of those officials are protected by qualified immunity.

The 9th Circuit nevertheless ruled that based on the allegations of the complaint, the marshal was entitled to qualified immunity.  The marshal was entitled to qualified immunity unless, assuming the plaintiff's allegations were true, it was beyond debate that the amount of force the marshal used violated the Constitution.  The transcript shows that before the marshal removed the plaintiff, the plaintiff twice defied the judge's order to leave, and that two of the plaintiff's compatriots did the same.  Given the chaos in the courtroom, and the undisputed evidence that the plaintiff intended to disobey the judge's orders, combined with the bare-bones allegations in the complaint that the marshal forcefully shoved him through double-doors injuring the plaintiff's back, it was not beyond debate that the marshal employed an unreasonable amount of force.

Decision in Writ Proceeding Challenging Hearing Officer's Evidentiary Ruling in Ongoing Administrative Proceeding Is Not Appealable

In City of Carlsbad v. Ed Scholtz (Seapker), published July 8, 2016, the Fourth District Court of Appeal, Division 1, dismissed an appeal from a judgment denying a petition for writ of mandate challenging an evidentiary ruling by a hearing officer in an ongoing administrative appeal. The appeal had two stages:  A hearing before an officer who would submit nonbinding findings and recommendations to the city council, and the councils' review of the findings and final decision.  The real party's administrative appeal was in the first stage.  During the hearing, a city employee refused to answer a cross-examination question.  As an evidentiary sanction, the hearing officer struck all testimony and evidence related to that issue, and barred the city from submitting any additional evidence on the issue.  The city petitioned the superior court to reverse the evidentiary sanction.  The trial court denied the petition, ruling that the city had an adequate remedy in administrative mandamus at the end of the appeal.  

The appellate court concluded the trial court's ruling was not appealable.  An appealable judgment is brought when there is no issue left between the parties for further consideration except compliance or noncompliance with the terms of the court's decree.  In this case, the trial court did not issue a final decree with which the parties might or might not comply.  It simply denied the petition on procedural grounds.  The underlying administrative appeal had not yet reached a final decision.  The proceedings between the parties had not yet concluded.

Public Entity That Defends Employee under Reservation of Rights As to Fraud, Corruption or Malice May Decline to Indemnify Judgment Based on Employee's Malice

In Chang v. County of Los Angeles, published July 1, 2016, the Second District Court of Appeal, Division 5, reversed summary adjudication and judgment granted in favor of employees suing the county for indemnity.  The employees were sued for alleged assault and battery.  The county entered into a written reservation of rights agreement with each employee.  The agreements expressly reserved the county's right to obtain indemnification from the employees if the county paid the judgments against them unless the county failed to establish that the employee acted or failed to act because of actual fraud, corruption or actual malice.  The employees were found liable and punitive damages were assessed against them.  The county declined to pay the judgment against them.  The employees sued the county under Government Code sections 814 and 825 for indemnification of the non-punitive economic damages awards against them.  The county argued that it was not obligated to indemnify the employees because the jury had found that the employees acted with malice.  The trial court concluded that the county was obligated to indemnify the employees.

The appellate court interpreted Government Code section 825.2 as relieving the county of any statutory obligation to indemnify the employees.  Section 825.2 provides that if an employee is defended under a reservation of rights, the employee pays the judgment, and the employee then seeks indemnification from the employer public entity, the employee may recover only if the public entity fails to establish that the employee acted out of actual fraud, corruption, or actual malice.  The court interpreted the statute to provide the entity a defense from indemnification if a public employee seeks indemnification, the employee acted with actual malice, and the entity reserved its rights regarding actual malice.  The county's reservation of rights to seek indemnity from the employee if the employee acted with actual malice was a sufficient reservation to permit the county to invoke section 825.2 as a complete defense to indemnification.

Federal Prosecutorial Immunity Does Not Apply to Declarations in Support of Subpoenas; 9th Circuit Declines to Follow Lower California Courts on State Prosecutorial Immunity

In Garmon v. County of Los Angeles, published July 5, 2016, the 9th Circuit reversed in part a district court order dismissing a pro se plaintiff's complaint.  The plaintiff was an alibi witness in her son's murder trial.  Because she was undergoing surgery for cancer, her deposition was taken.  She authorized her healthcare provider to release records concerning her cancer treatment to the prosecutor.  The prosecutor sent a subpoena duces tecum to the provider for the plaintiff's medical records.  The subpoena asked for all of the plaintiff's medical records, not just those for cancer treatment.  The prosecutor's accompanying declaration erroneously stated that the plaintiff was the victim in a murder prosecution.  The provider released all of the plaintiff's medical records to the prosecutor, who used them to impeach the plaintiff's credibility at trial.   She sued the prosecutor, the district attorney, and the county under 42 U.S.C. section 1983 and California state law. The district court ruled that the individual defendants were entitled to absolute prosecutorial immunity, and that the plaintiff had failed to plead facts creating Monell liability for the County.

The 9th Circuit rejected the plaintiff's argument that federal absolute prosecutorial immunity did not apply to cases brought by third party witnesses.  Instead, it affirmed application of absolute prosecutorial immunity to the prosecutor's actions in subpoening the records and in using the records at trial.  When engaged in that conduct, the prosecutor was acting as an advocate at trial, which the immunity protects.  The appellate court ruled, however, that the prosecutor's act of providing the declaration in support of the subpoena was not subject to absolute immunity.  When providing the declaration, the prosecutor was acting as a witness, not a prosecutor, since a non-prosecutor could have provided the declaration.  The DA's immunity was co-extensive with that of the prosecutor.  Although the district court properly ruled that the complaint did not state a claim against the County under section 1983, the court erred in dismissing the pro se plaintiff's complaint on that ground without granting leave to amend.

The 9th Circuit reversed the district court's ruling that Government Code section 821.6 immunized the defendants from liability under the plaintiff's California state law claims.  The court followed the California Supreme Court's decision in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, which applied section 821.6 only to malicious prosecution actions.  Although numerous California lower appellate court decisions later interpreted section 821.6 more expansively, the 9th Circuit declined to follow them, and confined section 821.6 to malicious prosecution claims.  (This creates a conflict between 9th Circuit and California law on the subject.)