Government Liability Update

Two Cases Deny Immunity for Injuries Caused by Falling Trees and Branches

Two cases from different courts, published within days of each other, addressed whether Government Code immunities for dangerous conditions of public property applied to trees or tree branches falling onto plaintiffs.

In County of San Mateo v. Superior Court (Rowe), published July 25, 2017, the First District Court of Appeal, Division 2, affirmed a trial court decision denying summary judgment in a case where a tree in a campground fell on a tent in which a minor plaintiff slept.  The County had moved for summary judgment based on Government Code section 831.2, the natural condition immunity, arguing that a condition of unimproved property caused the injury.  The issue was whether the injury was caused by a condition of unimproved property.  The appellate court found a triable issue of fact on whether the tree was growing in an unimproved area (since it was growing close to the campground, and its roots ran under the campground) and on whether the campground improvements were sufficient to amount to improved property.  The court also found a triable issue on whether the improvements caused the tree to fall, since the experts for each side disagreed on that point.

In Toeppe v. City of San Diego, published July 27, 2017, the Fourth District Court of Appeal, Division 1, reversed a summary judgment granted to the defendant city in a case where a tree branch in a county park fell on the plaintiff while she was allegedly on a recreational trail in the park.  The trial court granted summary judgment based on Government Code section 831.4, the Trail Immunity.  The appellate court concluded that the Trail Immunity did not apply.  The condition that caused the injury was the alleged negligent maintenance of the tree, rather than any condition of the trail.  The tree was not so related to the trail as to be deemed a part of it, since it was remote from the trail, the trail was not the only way to approach the tree, and a person would not have to be on the trail to be exposed to danger from the tree's branches.  Further, remedying the danger would not involve changing the trail, such as by adding barriers or handrails; it would involve maintaining the tree.  The court also found a triable issue of fact on whether the plaintiff was using the trail when the branch hit her.  Witnesses stated she was on the trail, but she declared that she was not.

 

District Court Erred in Resolving Issues of Fact in Moving Parties' Favor when Deciding Summary Judgment Motion in Wrongful-Arrest Case

In Reed v. Lieurance, published July 24, 2017, the 9th Circuit Court of Appeals reversed summary judgment, dismissal, and judgment as a matter of law in the defendants' favor in a case alleging wrongful arrest in violation of the 4th and 1st Amendments.  The plaintiff, a volunteer with an environmental group, was observing an interagency operation herding buffalo into Yellowstone National Park.  Two weeks before, evidence the group had gathered had been used as evidence in a federal environmental lawsuit concerning the herding efforts.  The plaintiff was in a vehicle parked on a highway adjacent to the park.  A Montana state agent told the plaintiff to move.  He moved the vehicle to another location.  A defendant sheriff's deputy cited the plaintiff for obstructing a peace officer, a misdemeanor.  The plaintiff and the deputy disagreed over whether the plaintiff had a right to park where he was.  The deputy told the plaintiff he would be arrested if he did not move farther away.  The plaintiff moved where instructed.  Other members of the public were allowed to observe the herding from fifty yards away.  There were multiple disputes of fact as to where the agent told the plaintiff to move, whether the plaintiff followed those instructions, and whether the plaintiff was in an area the buffalo might enter.  The plaintiff sued under 42 U.S.C. section 1983, alleging violation of his 4th and 1st Amendment rights.  The district court granted the defendants summary judgment on the plaintiff's unreasonable seizure claim, and sua sponte dismissed his failure-to-train claim.  After a jury trial, the district court granted judgment as a matter of law on the 1st Amendment claims.

The 9th Circuit ruled that the district court had erred in granting summary judgment on the 4th Amendment unreasonable seizure claims and the 1st Amendment claims.  In light of the multiple issues of fact on what occurred, and whether the plaintiff had the specific intent necessary to establish an interference offense, the district court could not rule that as a matter of law the officers had probable cause to arrest the plaintiff, or that the arrest did not unreasonably interfere with his 1st Amendment rights to observe the buffalo herding from a public place.  The district court also erred in dismissing the failure-to-train claim sua sponte without providing the plaintiff with proper notice of its grounds for doing so.

Police Officers Have No Expectation of Privacy While Executing Search Warrant for Purposes of Privacy Act

In Santa Ana Police Officers' Association v. City of Santa Ana, ordered published July 6, 2017, the Fourth District Court of Appeal, Division 3, affirmed in part and reversed in part dismissal on demurrer of a lawsuit for injunctive relief.  The two plaintiff officers participated in execution of a search warrant on a marijuana dispensary.  The officers wore masks to conceal their identities.  The police escorted all civilians out of the dispensary and detained them.  They disabled all known video cameras and a DVR.  The officers then removed their masks and engaged in relaxed conversation.  Unknown to them, the dispensary had hidden cameras in place in case the dispensary was raided.  The dispensary released footage from the cameras to the media.  As a result, an internal affairs investigation was initiated as to the plaintiff officers.  The officers brought a cause of action for violation of the California Invasion of Privacy Act, Penal Code section 632 et seq., which bars recording confidential conversations without the participants' consent.  Subdivision (d) of section 632 bars evidentiary use of recordings made in violation of the act.  The officers sought an injunction barring use of the recordings or any fruits of them in any internal affairs proceeding.  The officers also brought a cause of action under the Peace Officers' Bill of Rights seeking recordings of their initial interviews.  The trial court sustained the defendants' demurrers to both actions.

The appellate court affirmed the demurrer and dismissal as to the Invasion of Privacy cause of action.  The Invasion of Privacy Act applies only if the participants in a conversation have a reasonable expectation of privacy.  The officers could not have a reasonable expectation that any conversations they had would be private, since they were executing a search warrant on a secretive drug-selling business.

The court overruled the demurrer as to the Peace Officer Bill of Rights cause of action.  The officers were entitled to recordings of their initial interviews.

Property Owner That Challenges Construction Permit Conditions in Court, but Proceeds with Construction Project, Forfeits Challenge to Conditions

In Lynch v. California Coastal Commission, published July 6, 2017, the California Supreme Court affirmed a lower appellate court decision reversing an administrative mandamus writ issued by a trial court.  The plaintiff homeowners sought a permit from the California Coastal Commission permitting them to build a seawall to protect their blufftop properties, replacing a damaged seawall, and to repair a beach access stairway.  The Commission approved a permit subject to conditions that included a 20-year expiration date on the seawall permit and a prohibition on reconstructing the lower stairway.  The plaintiffs recorded deed restrictions reflecting the conditions, and filed a petition for writ of administrative mandamus challenging the 20-year and stairway conditions.  While the litigation was pending, they satisfied all of the other permit conditions, obtained the permit, and built the seawall.  The trial court issued a writ directing the Commission to remove the challenged conditions.  The appellate court ruled that the plaintiffs had waived the conditions, and that the conditions were valid.

The Supreme Court declined to rule on whether the conditions were valid.  Instead, it ruled that the plaintiffs had forfeited their challenge to the conditions by by complying with all pre-issuance requirements, accepting the permit, and building the seawall. Because they took the benefit of the permit, they also had to accept the burden of the conditions. The plaintiffs could not preserve their rights by challenging some of the conditions and satisfying others. The Mitigation Fee Act allows permit seekers to construct projects while protesting exactions, but exactions do not include land use restrictions.  Allowing challenge of land use restrictions while construction proceeds would expand the statute beyond its language and legislative intent.  Property owners must therefore wait until the litigation over the permit conditions concludes before performing construction.  If the property is in imminent danger without construction, they may seek an emergency permit under Public Resources Code section 30624.  Property owners could also avoid forfeiture by reaching an agreement with the permit issuer allowing the construction to proceed while a challenge to the permit is resolved.