Government Liability Update

Although Jury Verdict Finding Officer Used Excessive Force Is Supported by the Evidence, Officer Entitled to Qualified Immunity

In Shafer v. Padilla, published August 29, 2017, the 9th Circuit reversed a jury verdict against a police officer in a case alleging that the officer used excessive force in a misdemeanor arrest.  The officer had received complaints of people being hit with water balloons.  He found the plaintiff holding water balloons.  The plaintiff refused to drop the balloons when ordered.  Although the facts of what happened are disputed, witnesses agreed that the plaintiff resisted arrest and that the officer used a leg sweep to take the plaintiff down.  The jury found that the officer had probable cause to arrest the plaintiff, but also found that the force used was excessive based on the misdemeanor nature of the arrest.  The district court denied motions for summary judgment, JNOV, and new trial based on qualified immunity.

The 9th Circuit concluded that the jury's verdict that the officer used excessive force was supported by the evidence.  But it also concluded that the officer was entitled to qualified immunity because the plaintiff's Fourth Amendment rights were not clearly established at the time of the incident.  For a right to be clearly established, case law must ordinarily have been earlier developed in such a concrete and factually defined context to make it obvious to all reasonable government actors in the defendant's place that what the defendant is doing violates federal law.  To defeat qualified immunity, the plaintiff must identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.  The plaintiff did not identify, and the court did not find, a case in which an officer was held to have violated the Fourth Amendment by progressively increasing use of force from verbal commands to an arm grab, and then a leg sweep maneuver, when a misdemeanant refuses to comply with the officer's orders and the officer had probable cause to arrest the plaintiff for resisting arrest, in a challenging environment.

Childhood Molestation Statute of Limitations Does Not Create Accrual Date for Purposes of Government Claims Act

In Rubenstein v. Doe 1, published August 28, 2017, the California Supreme Court reversed a Court of Appeal decision that the plaintiff had complied with the Government Claims Act deadline to present a timely claim. The plaintiff alleged that in 1993-1994, when she was a high school student, her coach, an employee of the defendant district, sexually molested her.  She presented a claim for damages to the district in 2012, when she was 34.  She alleged that latent memories of the sexual abuse resurfaced in 2012.  She contended that the claim was timely.  The Government Claims Act requires that a personal injury claim for damages be presented to the defendant public entity no later than six months after accrual. Under Government Code section 901, the date of accrual for purposes of the Government Claims Act is the accrual date that would pertain under the statute of limitations applicable to a dispute between private litigants.  The plaintiff contended that Code of Civil Procedure section 340.1 creates the date of accrual for claims alleging failure to prevent childhood molestation.  Section 340.1, as it existed at the time of the molestation and as subsequently amended between 1990 and 2002, expanded the statute of limitations for childhood sexual molestation. It extended the deadline to sue to the plaintiff's 26th birthday; then, in 2002 while the plaintiff was still under 26, it allowed suits after the 26th birthday if the defendant was on notice of unlawful sexual conduct by an employee and failed to take reasonable steps to prevent the misconduct.

The Supreme Court majority concluded that section 340.1 did not set the accrual date for childhood sexual molestation claims. Instead, it tolled the statute of limitation for suing for injuries from molestation.  That does not affect the time to present a claim.  The cause of action accrues at the time the abuse occurs.  The court based this conclusion on the wording of the statute; on case law interpreting similar statutes; on the policy behind the claim statutes, in preventing late claims that endanger public entity fiscal planning and result in difficulties in investigation or preventing future harm; and on the 2008 passage of Government Code section 905, subdivision (m), which eliminates the claim requirement for childhood molestation claims, but only for conduct occurring after 2009.  The limitation on the amendment shows a legislative intention to limit public entity exposure for molestation claims.  The court also rejected the argument that section 340.1 provided a delayed discovery standard of accrual for molestation claims.  The court disapproved the decision in K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229.

Justice Werdegar dissented.  She opined that the majority's decision immunized public entities from liability for pre-2009 molestation claims.

 

Split of Authority on Proof Necessary for Police Pursuit Immunity

*******************Update:  See August 13, 2018 California Supreme Court Opinion affirming Ramirez.********

 

In Ramirez v. City of Gardena, published August 23, 2017, the Second District Court of Appeal, Division 1, affirmed summary judgment in favor of the defendant city.  The plaintiff's decedent was fatally injured in a PIT maneuver during a high-speed chase.  The plaintiff sued the city police for negligence and battery.  The trial court found disputed issues of fact that prevented summary judgment on whether the ramming officer's actions in using the PIT maneuver were reasonable.  But the trial court granted summary judgment based on Vehicle Code section 17004.7.  Under section 17004.7, if a public agency employing peace officers adopts and promulgates a written policy on vehicular pursuits that meets the statute's criteria, and provides regular training on pursuits, the agency is immune from liability from the collision of a vehicle being operated by a suspect pursued by the agency's peace officer.  Subdivision (b)(3) sets forth the requirements for promulgating the policy.  Promulgation must include a requirement that all of the agency's peace officers certify in writing that they have received, read, and understand the policy.  The subdivision provides that the failure of an individual officer to sign a certification shall not be used to impose liability on an officer or agency.  Citing Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144, the plaintiff contended that the CIty could only obtain summary judgment under section 17004.7's immunity by proving that each of its officers signed the certification described in the statute. The plaintiff also contended that the city's pursuit policy did not meet the statutory requirements.

The appellate court rejected both arguments.  It disagreed with the Morgan decision, and held that the statute does not require proof that every agency officer certified in writing that he or she received, read, and understood the policy.  That interpretation is inconsistent with the statutory provision that a single officer's failure to certify shall not be the basis for imposing liability.  If the immunity does not apply, liability is imposed.  The court therefore interpreted "promulgation" in the statute to mean that, to obtain immunity, the agency must require its officers to certify in writing that they have received, read, and understood the agency's pursuit policy.  If the agency imposes the requirement, complete compliance with the requirement by the officers is not a prerequisite for immunity to apply.  There was no dispute that the city required its officers to sign the required certification.  The appellate court also ruled that the policy met the statutory requirements.  Unlike other policies found lacking because they deferred too much to officer discretion, the policy included specific guidance on the circumstances in which a pursuit is appropriate, and the factors to consider in deciding whether to continue or terminate a pursuit.

Because Parkway Tree Was Not Public Improvement and Maintenance Was Proper, City Not Liable in Inverse Condemnation for Damage Caused by Falling Tree

In Mercury Casualty Co. v. City of Pasadena, published August 24, 2017, the Second District Court of Appeal, Division 3 reversed a court judgment holding the defendant city liable for inverse condemnation.  A parkway tree that was over 100 feet tall grew in the parkway in front of Mercury's insured's house.  In an unusual storm in which hurricane-force winds blew, the tree blew over onto the house.  Mercury sued the city as its insured's subrogee.  The trial court ruled that the tree was a public improvement, and that the city was therefore strictly liable in inverse condemnation for the damage it caused to the house.

The appellate court ruled that the tree was not a public improvement. A tree constitutes a work of public improvement for purposes of inverse condemnation liability if the tree is deliberately planted by or at
the direction of the government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road.  Although the parkway was public property, there was no evidence showing who planted the tree.  it was not the assigned type of city tree for that street.  Although an ordinance directed city care of parkway trees, it post-dated the tree's planting.  The city's  maintenance of the tree through general maintenance of its urban forest did not turn the tree into a public improvement.

The court also ruled that there was no evidence that the city's maintenance plan established a taking.  To establish inverse condemnation through maintenance, the plaintiff must show that the plan of maintenance of an improvement was deficient in light of a known risk inherent in the improvement.  There was no evidence the city's maintenance plan was deficient.  The city could still be held liable in tort for a fallen tree, e.g. under a dangerous condition of public property theory.

 

Public Employer's Broad Prohibition on Employees Discussing Government Program Violates First Amendment; and Official Is Not Entitled to Qualified Immunity for Imposing Ban

In Moonin v. Tice, published August 22, 2017, the 9th Circuit Court of Appeals affirmed a district court order denying qualified immunity to a Nevada Highway Patrol supervising officer and granting partial summary judgment to a patrolman.  The supervisor sent an e-mail to K9 officers in the patrol barring any direct contact between K9 handlers or line employees and any non-departmental or law-enforcement personnel for the purpose of discussing the patrol's K9 and drug interdiction programs.  Any communication was to be directed to the chain of command.  Violation of the edict was to be considered insubordination.  The plaintiff K9 handler alleged that the purpose of the edict was to prevent problems in the K9 program from being made public.  He sued the supervisor and others, alleging they had violated his First Amendment rights by imposing a prior restraint on his communications with the public.

The 9th Circuit agreed that the edict violated the First Amendment.  It applied an analysis similar to that under which First Amendment retaliation claims are analyzed, except that the government bears a heavier burden in justifying a prior restraint of employee speech.  The edict was drawn broadly enough to bar public employees' speech, outside the scope of their duties, on matters of public concern. The edict therefore violated the employees' First Amendment rights unless it bore a close and rational relationship to the employer's legitimate interests.  The edict did not meet that test.  The interests articulated were preventing disclosure of sensitive law enforcement information, controlling the department's official communications about the program, and ensuring effective operation of the agency without disruption by outside groups.  The first two justifications are legitimate ones, but the broad edict is not tailored to them.  To the extent the third purpose is to avoid government accountability, it is an insufficient justification.

The 9th Circuit also concluded that the law was clearly established in 2011, when the edict issued, that a broad prohibition on employees contacting the public about a program violated the First Amendment.  U.S. Supreme Court and 9th Circuit case law concerning narrower limitations--notice to superiors before speaking, and requiring clearance from superiors before speaking--suggested the broad ban here was improper.  Although there was little Supreme Court and 9th Circuit guidance on broad bans like this one, persuasive authority from other circuits, district courts, and a state court clearly established that the ban would be unconstitutional.

 

Contractor's Attempt to Enforce Alleged Oral Contract with County Through Promissory Estoppel Lacks any Reasonable Basis, Justifying CCP 1038 Fee Award

In Ponte v. County of Calaveras, ordered published August 15, 2017, the Third District Court of Appeal affirmed both a summary judgment granted to the defendant county and an award of attorney fees to the County under Code of Civil Procedure section 1038.  The plaintiff contractor alleged that he performed work on a land failure on county property under an oral agreement with a county employee.  County ordinances required public contracts to be put out for bid and to contain a fixed payment.  The alleged oral contract met neither criterion.  The plaintiff contended he had a cause of action against the county for promissory estoppel, and that there is an emergency exception to the county's contractual requirements.  He further alleged that he should not be subjected to a fee award under section 1038 because under the circumstances he believed in good faith in his claims.

The appellate court rejected these arguments.  Promissory estoppel cannot be asserted against a public entity to bypass rules that require contracts to be in writing or be put out for bids, rules that reflect a public policy to preclude oral contracts or other exposures to liability, including claims of promissory estoppel.  The plaintiff was unable to identify any authority supporting his argument that emergencies provide an exception to this rule, or that private parties may declare a public emergency.  Nor was this an exceptional case that would warrant applying estoppel against a public entity in the interests of justice, since applying estoppel would undermine the public contract rules set forth by ordinance, designed to prevent oral contract claims.  The award of fees under section 1038 was proper, because to avoid paying fees under section 1038 when a public entity wins summary judgment and moves for fees, a plaintiff must show that the action was brought or continued with both subjective good faith and objective reasonable cause.  The plaintiff argued that he believed in good faith that he should be paid for his work.  But he failed to show that any reasonable attorney would have thought his claim tenable.  He therefore failed to show objective reasonable cause. 

Code of Civil Procedure 998 Applies in Actions under FEHA and the Peace Officers' Bill of Rights

In Sviridov v. City of San Diego, ordered published August 15, 2017, the Fourth District Court of Appeal, Division 1 affirmed a decision awarding the defendant city its post-offer costs under Code of Civil Procedure section 998 in a lawsuit the plaintiff police officer brought under the Fair Employment and Housing Act and the Peace Officer's Bill of Rights.  The plaintiff argued that case law holds that in a FEHA action fees and costs may be awarded to a defendant only if the action was frivolous.  The appellate court ruled that the case law does not apply to section 998, under which a defendant who makes a settlement officer that the plaintiff fails to do better than is awarded the defendant's post-offer costs.  The court also rejected the argument that the costs provisions of POBRA create an exception to section 998.

Public Records Act Petitioner Is Prevailing Party if Discovery Prompts Agency to Disclose Responsive Documents

In Sukumar v. City of San Diego, published August 15, 2017, the Fourth District Court of Appeal, Division 1 reversed a trial court decision denying a fee motion brought by a California Public Records Act petitioner whose petition was defeated.  The petitioner sought records about his property and his neighbors.  Not satisfied with the city's production of documents, the petitioner brought a petition for writ of mandate under the CPRA.  The city objected to discovery the petitioner propounded, contending that discovery was not available in CPRA actions.  At a hearing on a motion to compel, a deputy city attorney stated on the record that the city had produced all responsive records.  She offered to provide a declaration to that effect.  The court ordered a deposition of a person most knowledgeable to confirm the city had produced all responsive documents.  The city undertook additional searches before and after the PMK deposition,  It located more responsive documents, and provided them to the petitioner.  The petitioner's CPRA petition was ultimately denied on the ground that the city had produced the responsive documents.  The petitioner moved for his attorney fees.  The trial court found that the petitioner was not the prevailing party, because the litigation had not motivated the city to produce the additional documents produced after the case started.

The appellate court ruled that no substantial evidence supported the trial court's finding.  A CPRA petitioner who loses the petition is nevertheless the prevailing party if the litigation results in documents responsive to the CPRA request being produced.  It is not enough that the documents are produced after the litigation begins; there must be a causal connection between the litigation and the production, so that the agency produces documents it would not have produced if the litigation had not taken place.  Here, the deputy city attorney's representation that everything had been produced, and then the additional production of documents after the PMK deposition was ordered, indicated that the city undertook additional searches in response to the PMK deposition order and discovered documents it had mistakenly not produced before.  That established that the petitioner was the prevailing party, and entitled to his fees under the CPRA.

Government Code section 844.6 Immunizes State from Liability under Bane Act for Alleged Discrimination against Prisoner

In Towery v. State, published August 10, 2017, the Second District Court of Appeal, Division 1 affirmed judgment on the pleadings as to a former inmate's suit against the State of California for alleged discrimination under the Bane Act, Civil Code section 52.1.  While incarcated in the Kern County State Prison, the plaintiff contracted valley fever.  Plaintiff is African-American.  African-Americans are at 10 times greater risk of contracting the serious version of valley fever, and a high percentage of valley fever cases in the United States occur in Kern County.  State correctional facilities did not implement recommended measures to prevent the spread of the disease.  Plaintiff alleged that the state intentionally took no action to protect African-American inmates against valley fever.  The trial court ruled that Government Code section 844.6's immunity against liability for injuries to prisoners barred the Bane Act claim.

The appellate court agreed.  a statute of general application that merely creates a liability applicable to public entities is not sufficient to override a specific immunity provision.  Section 844.6 is a specific immunity provision that applies to injuries to prisoners.  Nothing in the Bane Act shows any intent to override statutory immunities.  It is unclear whether the Bane Act applies to public entities (as opposed to public employees) at all, since it applies to "persons" who interfere with the exercise of constitutional rights, and public entities are not "persons."  The court also rejected the argument that section 844.6 applies only to "ordinary" tort claims such as wrongful death and not to alleged hate crimes under section 52.1.

Claim That Search Warrants Were Obtained Through Judicial Deception Accrues when the Warrant Affidavit Becomes Reasonably Available

In Klein v. Beverly Hills, published August 4, 2017, the 9th Circuit Court of Appeals reversed in part and affirmed in part a summary judgment granted on a 42 U.S.C. section 1983 suit alleging that search warrants for the plaintiff's home and computer were obtained by false statements and omissions by the investigating detectives.  The plaintiff brought the suit three and a half years after the searches were executed.  In the meantime, the plaintiff made multiple attempts to obtain the sealed affidavits that the police submitted to the court to obtain the search warrants.  Eventually, after the lawsuit was filed, the affidavits were produced in discovery.  Soon after, the district court granted summary judgment on the ground that the two-year statute of limitations barred the action.

The 9th Circuit rejected the argument that the cause of action accrued when the searches under the warrants were executed.  Instead, the federal discovery standard of accrual applies.  Under that standard, the plaintiff's cause of action accrues when the plaintiff knows or has reason to know of his injury.  The standard requires the plaintiff to be diligent in discovering the critical facts of the case.  While ordinary 4th Amendment search and seizure claims accrue when the allegedly illegal search or seizure took place, judicial deception claims involve false or misleading representations that may not be obvious at the time of the allegedly illegal search.  The discovery rule therefore applies, and the cause of action does not accrue until the affidavit submitted to obtain the search warrant becomes reasonably available.  There was no dispute that the plaintiff here was diligent, so the discovery rule applied and his action was timely.

In a separate unpublished decision, the court affirmed summary judgment to the extent it was based on the merits of the plaintiff's claim.