Government Liability Update

Compliance with the Statutory Claim-Presentation Requirements May Be Generally Pleaded

In Esparza v. Kaweah Delta District Hospital, published September 21, 2016, the Fifth District Court of Appeal reaffirmed its decision in  Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228 that a plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that the plaintiff complied with the claims statute.  The court reversed dismissal of an action after the defendant hospital district's demurrer to the plaintiff's medical malpractice complaint was sustained.  The defendant alleged that the California Supreme Court's decision in DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983 had impliedly overruled Perez.  The appellate court concluded that nothing in DiCampli-Mintz either addressed Perez's holding or addressed the standards for pleading claim compliance.  

The court concluded that the plaintiff adequately pleaded compliance with the claim statutes by checking the boxes on the Judicial Council complaint form stating that the plaintiff was required to comply with a claims statute and had complied.  That adequately pleaded the ultimate fact that the plaintiff had complied.  The plaintiff was not required to specifically plead the method of service used to present the claim, or whether the defendant rejected the claim or was deemed to have rejected it.  The plaintiff's additional allegation, that she had served a claim on the hospital pursuant to Government Code section 910 et seq. "on or about December 3, 2014" was neither ambiguous nor inconsistent with the general allegation of compliance.

Attorney's Unknowing Cognitive Impairment When Opposing Dangerous Condition Summary Judgment Motion Justified Discretionary Relief from Judgment

In Minick v. City of Petaluma, published September 2, 2016, the First District Court of Appeal, Division 4 affirmed a trial court order setting aside summary judgment in favor of the city.  The plaintiff alleged that irregularities in the street where he was bicycling created a dangerous condition of public property that caused his bike accident and resulting injuries.  The plaintiff opposed summary judgment with a poorly-written opposition brief, an expert declaration, and grainy black and white photographs that lacked foundation and did not indicate what they were showing.  At the initial summary judgment hearing, the plaintiff's attorney showed signs of physical distress and was taken by ambulance to a hospital.  At a continued hearing, the court granted the motion.  Five weeks later, the plaintiff moved under Code of Civil Procedure section 473, subdivision (b) for discretionary relief from the summary judgment.  The plaintiff's counsel argued that when he drafted the opposition papers he suffered from a cognitive impairment caused by his pulmonary and sleep disorder and the heavy medications he took for them.  With the motion, the attorney presented new evidence that, in the trial court's opinion, raised a triable issue of fact on the existence of a dangerous condition.

The appellate court affirmed the trial court's exercise of its discretion in granting relief.  While attorney error will seldom be a ground for granting discretionary relief under section 473, the trial court acted within its discretion in concluding that in light of all the circumstances the attorney had adequately proven his incapacity and his diligence in seeking relief.

Constitution Does Not Prevent School from Disciplining Student for Sexual Harassment of Other Students on Grounds Adjacent to Schoolground

In C.R. v. Eugene School Dist. 4J, published September 1, 2016, the 9th Circuit Court of Appeals affirmed summary judgment in favor of a school district in a 42 U.S.C. section 1983 case a seventh-grader brought against the district.  The plaintiff and other seventh graders teased two disabled sixth-graders as they left school, in a city park that was adjacent to the schoolgrounds.  The teasing escalated into sexual jokes that made the younger students uncomfortable.  The school eventually gave the plaintiff a two-day suspension for sexual harassment, as well as lying about the incident to district administrators investigating the incident.

The 9th Circuit held that a student's First Amendment rights do not prevent a school from disciplining the student for speech off-campus under these circumstances.  A school may act to protect its students' rights to leave campus freely without implicating speech in the broader community.  Applying the standards for student speech on campus, sexually harassing speech may be disciplined because it interferes with the rights of other students to be secure.  The informal procedures the school used for the two-day suspension did not violate procedural due process, since informal procedures may be used for suspensions of ten days or less.  Finally, deeming the plaintiff's conduct "sexual harassment" did not violate his rights to substantive due process.

California Public Records Act Litigation against California Public Utilities Commission Must Be Brought in Appellate or Supreme Court

In California Public Utilities Commission v. Superior Court (Aguirre), published August 31, 2016, the First District Court of Appeal, Division 2, issued a writ directing the trial court to reverse its order overruling the Commission's demurrer.  The real party in interest brought a petition for a writ in the San Francisco Superior Court under the California Public Records Act.  The real party alleged that the Commission had failed to produce records in response to his CPRA request.  The Commission demurred on the ground that the superior court did not have jurisdiction to entertain the writ petition.

The appellate court agreed with the Commission's position.  Public Utilities Code section 1759 provides that only the California Supreme Court and courts of appeal have jurisdiction to review, reverse, correct, or annul any California Public Utilities Commission order or decision, or to interfere with the Commission in the performance of its official duties, via a writ for mandamus.  Government Code section 6258, part of the CPRA, prescribes that any person may institute a writ or declaratory relief proceeding in any court of competent jurisdiction to enforce the person's rights under the CPRA.  Government Code section 6259, also part of the CPRA, sets forth the procedure for such actions, with specific references to the superior court.  Harmonizing these statutes, the appellate court concluded that only the California Supreme Court or an appellate court is a court of competent jurisdiction to entertain a challenge to a Commission decision under the CPRA.  Although section 6259 refers to a superior court, the broad provisions of section 1759 will sometimes result in a court that would otherwise have jurisdiction over a dispute being deprived of jurisdiction.