Government Liability Update

Outside Counsel's Billing Invoices for Ongoing and Active Litigation Not Subject to CPRA

In Los Angeles County Board of Supervisors v. Superior Court (ACLU), published December 29, 2016, a divided California Supreme Court reversed the lower appellate court's ruling that a public entity's outside counsel's billing invoices were categorically excluded from the California Public Records Act as attorney-client privileged communications.  The ACLU had sought invoices specifying the amount any outside firm had billed the petitioner county for defense in nine specified lawsuits.  The county agreed to produce redacted invoices from three lawsuits no longer pending, but declined to produce invoices in the six pending lawsuits.  Among its grounds was that they were privileged attorney-client communications that contained work product, were therefore privileged under the Evidence Code, and were therefore exempt from the CPRA under Government Code section 6254(k).  The appellate court issued a writ petition reversing the decision, and holding that all billing invoices are protected attorney-client communications.

The Supreme Court split 4-3 on the question of whether the invoices were protected from the CPRA.  The majority held that the contents of an attorney's invoice to a client are privileged only if they either communicate information for the purpose of legal consultation, or risk exposing information that was communicated for such a purpose. The majority further held that the latter category includes any information in any invoice that reflects work in active and ongoing litigation.  The majority reasoned that invoices in themselves are not protected communications, because they are submitted for the purpose of getting paid rather than for purposes that are the "heartland" of attorney-client privilege: information conveyed for the purpose of legal representation.  But they can contain information conveyed for that purpose.  Because invoices in ongoing and pending litigation pose too great a risk of disclosing the substance of legal consultation and strategy.  But information such as cumulative totals of billing for long-concluded litigation pose less of a danger of disclosing the substance of legal consultation.

The dissent opined that the attorney-client privilege applies to all attorney-client communications in the course of a representation, regardless of content; and that the passage of time does not affect the privilege.

 

Inclusion of Challenged Light Phasing in Approved Plans and Plaintiff's Concession of Reasonableness Establish Design Immunity as a Matter of Law

In Gonzales v. City of Atwater, published December 15, 2016, the Fifth District Court of Appeal reversed denial of JNOV to the city defendant in a wrongful death case.  The plaintiff alleged that the phasing of the lighting at a city crosswalk caused the accident that resulted in the decedent's death.  The phasing was included in plans that the city engineer, who had discretion over whether to approve plans, approved before the accident.  Both sides presented testimony from experts about the reasonableness of the phasing.  During a court conference over whether a city employee designated as a non-retained expert would testify as to opinions, plaintiff's counsel stated that plaintiff did not contest the reasonableness of the phased signal.  The trial court denied directed verdict and then Judgment Notwithstanding the Verdict based on design immunity.  The jury found that the intersection was a dangerous condition of public property.

The appellate court ruled that the trial court had erred in denying JNOV, because the city was entitled to design immunity under Government Code section 830.6, as a matter of law.  The three elements of design immunity -- causal connection, discretionary approval, and substantial evidence that the design was reasonable -- were established.  There was no dispute over causal connection.  The appellate court rejected the plaintiff's contention that there was no discretionary approval of the light phasing, because there was no evidence that the city engineer had specifically considered the phasing.  The case of Hampton v. City of San Diego (2015) 62 Cal.4th 340 established that evidence of actual deliberation is not necessary; all that is necessary is approval of the design feature by a city official with discretion.  The inclusion of the phasing in the plan and the approval by the city engineer established discretionary approval as a matter of law.  Finally, plaintiff's counsel's concession during trial that reasonableness was not an issue established the reasonableness element. Similar to a stipulation, a concession by counsel at trial or judicial admission eliminates the need to prove the fact at issue admitted and is binding on the client absent fraud. Plaintiff's counsel's attempts to dismiss that concession as inadvertent or spontaneous were not supported by the record.

Social Workers Entitled to Qualified Immunity for Removing Newborn from Drug-Using Mother without Warrant, but County May Be Liable for Policy of Not Obtaining Warrants

In Kirkpatrick v. County of Washoe, published December 9, 2016, the 9th Circuit Court of Appeals, sitting en banc, affirmed in part and reversed in part summary judgment in favor of defendants sued by an infant child and her father under 42 U.S.C. section 1983. The infant was born prematurely by cesarean section.  The mother admitted she used methamphetamine throughout her pregnancy.  The infant tested positive for meth.  The mother had two other children who were in the custody of social services.  A court had approved a plan to terminate the mother's parental rights for the older children.  Social services put a hold on the newborn to prevent her from being discharged.  The mother was still permitted to interact with the newborn.  The mother failed to feed the infant on a schedule or to change her diapers.  The plaintiff father was present at the time of the birth.  He had been told by the mother that he might be the father.  He left town soon after the birth.  Two days after the infant's birth, the hospital discharged her into social services's care.  Social services did not attempt to obtain a warrant before assuming custody.  Later, the plaintiff was adjudged the father, and eventually obtained custody of the infant.  He and the infant sued the county and the social workers involved for removing the child from the hospital without a warrant.  The district court granted summary judgment, determining that only the father had raised claims and that he had failed to show that his constitutional rights were violated.

The majority decision of the en banc panel affirmed summary judgment on behalf of the social workers, but reversed it as to the county.  The panel determined that the suit asserted the rights of both the father and the infant.  The court ruled that the father failed to show that any of his 4th or 14th Amendment constitutional rights were violated, because he had no parental relationship with the newborn when she was taken.  His biological relationship alone was insufficient.  The panel determined that there was a material issue of fact on whether the infant's 4th Amendment rights had been violated.  Removal of a child without a warrant is constitutionally permitted only when the child would be in imminent danger during the time that obtaining a warrant could take.  Since the infant and mother were in the hospital, the mother was recovering, and the hospital had a hold on discharging the child, a jury could determine that a warrant was necessary.  But the workers were entitled to qualified immunity, because no published case had established that no imminent danger was present under the circumstances the workers faced.  On the other hand, there was a triable issue of fact on whether the county could be held liable for failure to train.  The county did not train its workers that they needed a warrant to remove children from parents, and as a practice did not use warrants.  Although a pattern of constitutional violations is usually necessary to show an unconstitutional failure to train, this was one of the rare situations were a single instance was sufficient.

There were multiple concurring and dissenting opinions in the decision.