Government Liability Update

The Government Code Immunities for Misrepresentation Do Not Apply to Slander of Title

In Finch Aerospace Corp. v. City of San Diego, published February 24, 2017, the Fourth District Court of Appeal, Division 1, affirmed a dismissal on demurrer of a slander of title action against the city, but ruled that the trial court's ground for sustaining the demurrer was erroneous.  

The trial court ruled that the city was immune from liability for slander of title under Government Code sections 818.8 (which immunizes public entities from liability for misrepresentations) and 822.2 (which provides public employees with qualified immunity from liability for misrepresentations).  The appellate court disagreed. For purposes of interpreting the two statutes, "misrepresentation" is defined narrowly as causes of action that form the common law tort of deceit, in its four forms, and involve interference with financial or commercial interests.  Slander of title is not a form of deceit.  It is a form of disparagement, which is a separate tort.  The appellate court ruled, however, that under the facts the plaintiff failed to state a cause of action for slander of title.

County-Employed Attorney's Comments to Press about County Case She Handled Were Part of Her Duties as an Attorney and So Were Not Protected by the First Amendment

In Brandon v. Maricopa County, published February 23, 2017, the 9th Circuit Court of Appeals reversed a judgment, based on jury verdict, in favor of an attorney formerly employed by the defendant county.  While the attorney was a county employee, a newspaper reporter called her on her office line and asked her to comment about the county's settlement of a lawsuit in which she was the attorney of record.  The reporter suggested the county had made an overly generous settlement offer to prevent the depositions of county officials.  The attorney responded, "I don't know why they did what they did, and I'm sure they had their reasons."  Her employment was later terminated.  The attorney sued the county and county officials for employment retaliation in violation of her 1st Amendment rights.  A jury found in favor of the attorney, and awarded her nominal damages.  The defendants appealed, arguing that as a matter of law the attorney was acting pursuant to her official duties when she spoke to the reporter, and her speech was therefore not constitutionally protected.

The 9th Circuit agreed with the defendants. Speech made by public employees in their official capacity is not insulated from employer discipline by the 1st Amendment but speech made in their private capacity as a citizen is.  The scope and content of the employee's job responsibilities is a question of fact. But a practical inquiry is required.  Here, under that practical inquiry, the attorney had a broad fiduciary duty to her client, the county, that included speaking to the press as a lawyer representing the county. She did not accuse the county of any corruption or serious misconduct.  And she did not violate any official policy by speaking to the press on the matter.  The only possible outcome of this practical inquiry was that the attorney's speech fell under the broad set of official duties she owed the county as its attorney, and so was not constitutionally protected citizen speech.

Disabled Students Must Exhaust IDEA Administrative Requirements before Suing under Title II or Rehabilitation Act only if the Gravamen of the Lawsuit Is Denial of Free and Appropriate Public Education

In Fry v. Napoleon Community Schools, published February 22, 2017, the U.S. Supreme Court reversed dismissal of a disabled student's suit against school districts and a principal for a school's refusal to permit the student's service dog to assist the student at school.  The student sued under Title II of the ADA and section 504 of the Rehabilitation Act, alleging disability discrimination.  The district court dismissed the suit, and the circuit court affirmed the dismissal, under 20 U.S.C. § 1415(l), part of the Individuals with Disabilities Education Act.  The subdivision states that the IDEA's remedies do not preclude suits under Title II or section 504, but that when such suits seek relief that is available under the IDEA, the plaintiff must exhaust the IDEA's administrative requirements.

The Supreme Court held that these exhaustion requirements apply only when a suit under Title II or section 504 seeks recovery for a denial of a Free and Appropriate Public Education, because a FAPE is the only remedy available under the IDEA.  In determining whether a suit seeks recovery for denial of FAPE, a court should look past the wording of the complaint and determine the gravamen, or substance, of the lawsuit.  The Court suggested  asking whether the same lawsuit could be brought by a disabled child if the defendant were not a school (such as a public theater or library), or if the plaintiff were an adult rather than a student.  If so, the lawsuit may not be subject to the exhaustion requirements.  Additionally, that a plaintiff began administrative proceedings under the IDEA before filing suit may be evidence that the gravamen of the suit is denial of FAPE.  The Court remanded the case to the lower courts to apply these tests.

Failure to Establish That City Action or Inaction Caused Accumulation of Sea Lion Droppings Justifies Summary Judgment on Nuisance and Mandamus Claims

In Citizens for Odor Abatement v. City of San Diego, published February 9, 2017, the Fourth District Court of Appeal, Division 1, affirmed summary judgment in the defendant city's favor in an action alleging that the noxious sea lion waste odors emanating from La Jolla Cove were a public nuisance.  The city had attempted to eliminate the odor, but while it was successful in addressing the odor from bird droppings, it had not succeeded in eliminating the sea lion dropping stench.  The plaintiff alleged that a city fence had encouraged sea lions to accumulate in a portion of the cove by keeping humans out of the area.  In its motion, the city presented expert evidence that several factors other than the fence caused the sea lion population to grow, and that the fence, built decades before the population growth, did not cause the growth.  In response, the plaintiff presented evidence, including an expert declaration, that the population growth occurred after the fence was built. The expert opined that the fence caused the sea lions to feel more comfortable resting on the fenced-off bluff.  The trial court sustained the city's objection to the expert declaration as a classic post hoc, ergo propter hoc (it happened afterward, therefore it was caused by) logical fallacy, and as contradicted by the evidence.

The appellate court noted that a public nuisance cause of action requires that the nuisance be caused either by something the public entity did or something it had a duty to do but failed to do.  The trial court correctly ruled that the undisputed evidence failed to establish this causal nexus.  The city's expert evidence disproved the theory that the fence caused the population growth.  The plaintiff did not appeal the ruling sustaining the objection to the plaintiff's expert's declaration, and the trial court correctly excluded it.  The evidence from locals that there was not an odor problem before the fence did not create an issue of fact as to whether the fence created the odor problem; that was a post hoc, ergo propter hoc fallacy.  The plaintiff also failed to show that the city failed to act to attempt to alleviate the odors, even assuming it had a duty to do so.  The court also rejected a theory that the plaintiff was entitled to mandamus on the ground that the city had assumed an obligation to alleviate the odor.  A memorandum issued by the mayor asserting that the city would attempt to eliminate bird waste odor did not impose a duty to alleviate sea lion waste odor.