Government Liability Update

Public Employee's Grievance to Employer Could Not Substitute for a Timely Claim for Damages

In Olson v. Manhattan Beach Unified School District, published November 29, 2017, the Second District Court of Appeal, Division 4, affirmed the dismissal after demurrer of a baseball coach's lawsuit against the district, his employer, for alleged defamation and deceit.  The plaintiff did not present a claim for damages to the district before suing.  Instead, he alleged that a grievance he filed with the district in accordance with a collective bargaining agreement, alleging violations of the agreement, constituted substantial compliance with the Government Claims Act's requirements.  He alternatively alleged that he was excused from presenting a claim because it would have been futile to do so.  The complaint also alleged that while an arbitration of the grievance was in progress, he told the superintendent, "I have to keep fighting this."  The trial court ruled that the plaintiff had failed to allege compliance with the Government Claims Act.

The appellate court agreed.  The plaintiff argued three doctrines, none of which excused him from failing to present a claim.  First, his argument of substantial compliance failed.  Substantial compliance applies where a plaintiff presentsto a responsible officer of the entity a claim that is technically deficient in some particular.  Because the plaintiff did not allege that the plaintiff served or attempted to serve a claim on any responsible officer of the district, the doctrine did not apply.  Even assuming that the grievance could be deemed to constitute a claim, its contents did not substantially comply with the Act requirements, because it did not contain the information required by Government Code section 910, and nothing alleged in it supports causes of action for defamation or deceit.  Second, the grievance could not be deemed to be a "claim as presented," because nothing in it disclosed the existence of a claim against the district that, if not satisfactorily resolved, would result in litigation.  It did not threaten litigation if the alleged breaches of the collective bargaining agreement were not remedied.  Nothing in the grievance suggested the plaintiff would be suing for defamation or deceit.  The statement to the superintendent that he would continue to fight after the grievance was denied suggests he would appeal the denial of the grievance, not that he would sue.  Finally, the futility exception does not apply to claims presentation.  It is an exception to the exhaustion of administrative remedies, and the claim-filing requirement is not an administrative remedy.  Applying the futility doctrine would contravene the purposes of the claim-filing requirement:  providing the entity with notice of a potential claim.  Even if futility could apply, the complaint did not allege facts showing futility, such as a positive declaration of what its ruling on a claim alleging deceit or defamation would be.

School District May Be Estopped From Asserting That Claim Should Have Been Presented to District Rather than School Police Department

In Santos v. Los Angeles Unified School District, published November 29, 2017, the Second District Court of Appeal, Division 4 reversed summary judgment granted to the defendant school district based on the plaintiffs' failure to present a claim to the district.  The plaintiffs were involved in a serious auto accident with a Los Angeles School Police Department (LASPD) vehicle.  Before the plaintiffs were taken to the hospital, they received a business card with the LASPD seal, address, phone number, and website.  Four days later, through counsel, the plaintiffs presented a claim for damages to the City of Los Angeles.  The city denied the claim, and stated that LASPD was a separate public entity.  The attorney checked the LASPD website.  The website stated the question of whether LASPD was an independent law enforcement organization, and stated in response that the district maintains its own fully-accredited police department, but that LASPD is a separate entity.  The attorney called LASPD, and told a lieutenant that he needed to submit a claim form for damages to the LASPD.  The lieutenant told him that a claim form was available on the LASPD website and that he should mail the form  to LASPD.  He did not mention the district.  The attorney downloaded a "service complaint form" from the website, which did not mention the district.  In small print, it said, "For LASPD Internal Affairs Use Only."  The attorney filled out the form, attached the claim previously submitted to the city, and mailed it to LASPD.  LASPD did not respond to it until over a year later, after the plaintiffs filed suit.  At that time, LASPD wrote a letter stating that LASPD was not a separate legal entity, but was part of the district.  In addition, after filing the suit, the attorney (after many tries) received the traffic report, which listed the employer of the driver as LASPD, but the owner of the vehicle as the district.  The plaintiffs amended the complaint to name the district.  The trial court granted summary judgment on the grounds that LASPD was not an independent government entity, but part of the district, and that equitable estoppel did not apply because no reasonable attorney would have relied on the business card or the lieutenant's information in determining LASPD was the entity to which to present the claim.

The appellate court ruled that the plaintiffs could raise equitable estoppel, despite not having pleaded it.  The district forfeited the argument that they could not, and in any case, because the complaint could have been amended to allege estoppel without prejudice to the district, the trial and appellate courts could consider the estoppel argument on its merits.  The appellate court further ruled that the evidence described above raised a triable issue of fact on whether the district concealed the fact that it was the responsible entity.  The business card, the lieutenant's statements, and the website's assertion that LASPD was a separate entity raised a triable issue of fact on whether the district concealed that LASPD was not a separate entity.  Evidence supporting the reasonableness of the belief was the absence of mention of LASD on the business card, despite Government Code section 7530's requirements, and the city's denial on the ground that LASPD was a separate entity.  

Public Entity's Permitting Decisions Not Protected Activity under Anti-SLAPP Law

In Shahbazian v. City of Rancho Palos Verdes, published November 22, 2017, the Second District Court of Appeal, Div. 7 affirmed a trial court's denial of the defendant city's special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute.  The plaintiffs sued the city over the city's decision to issue permits permitting the plaintiffs' neighbors to modify a common fence.  The plaintiffs alleged that the city violated ordinances and selectively enforced others.  Before suing, the plaintiffs administratively appealed the permitting decisions up to the city council, which allowed the decisions to stand.  The plaintiffs alleged inverse condemnation and selective enforcement, among other claims.  The city demurred and moved to strike the complaint, alleging that the causes of action arose out of speech and petitioning activity protected by the anti-SLAPP law.  The trial court concluded that the plaintiffs' causes of action did not arise out of activity protected under anti-SLAPP.

The appellate court agreed.  The plaintiffs sued the city based on the city's underlying acts--the permitting decisions--and not the oral statements or other expressive conduct concerning those acts.  The plaintiffs did not sue the city for injuries allegedly caused by any of the speech or communications made during the administrative appeals or votes on the permitting decisions.  If anti-SLAPP were construed otherwise, any plaintiff who sued a public entity for any act that involved votes, hearings, or discussions would have to meet the requirements of anti-SLAPP law.  That was not the Legislature's intent.

 

Night Club's Failure to Exhaust Administrative and Judicial Remedies Bars Causes of Action for Intentional Interference, Negligence, and Declaratory Relief Arising out of Administrative Actions

In Los Globos Corporation v. City of Los Angeles, published November 20, 2017, the Second District Court of Appeal, Division 1 affirmed the dismissal on demurrer of a night club's suit against the defendant city arising out of the city fire department's and department of building and safety's actions concerning the club's approved occupant loads for its two stories.  The club alleged that the departments harmed its business by reducing the number of patrons allowed at the club, and did not give it a statutorily-required hearing before doing so.  The club had a right under city ordinances to administratively appeal from the departments' decisions.  It did not do so.  Nor did it challenge the decisions by petitioning for administrative mandamus.  After presenting a claim for damages to the city, the club sued for intentional interference with the club's economic advantage, negligence, and declaratory relief.

The appellate court held that the requirement that the club exhaust the administrative remedies available to it--the administrative appeal process--before suing for damages or declaratory relief was jurisdictional, could be raised at any time in the litigation, and was a complete bar to the action.  It rejected the club's argument that it was entitled to sue without exhausting the remedies because it was denied a pre-deprivation hearing.  The exhaustion requirement applies regardless of whether a plaintiff received pre-deprivation due process.  Further, the lack of a pre-deprivation hearing was an issue that the club could have raised in administrative appeals.  The club also failed to exhaust its judicial remedies, by petitioning for a writ in the trial court.  Therefore, the city's decision has achieved finality and has been established as proper.

Penal Code section 847(b) Does Not Create Qualified Immunity for False Arrest; Bane Act Claim Arising out of Unlawful Arrest Does Not Require Independent Act of Coercion

In Cornell v. City and County of San Francisco, published November 16, 2017 and modified November 17, 2017, the First District Court of Appeal, Division 4, affirmed a jury verdict in favor of an off-duty trainee police officer who sued San Francisco and four police officers for the plaintiff's arrest and detention in jail, and the subsequent loss of the officer's job.  While the plaintiff was jogging in a park during daylight hours, in plainclothes, officers approached him in a police car because the area was a high-crime one and the officer looked "clean cut" like a parolee.  The plaintiff saw the car, decided not to get involved with the car, and continued his run.  The officers pursued him.  Eventually, an officer stood behind him, drew his gun, and made a disputed statement which included the phrase, "I will shoot you."  The plaintiff believed that he was being attacked and ran.  Eventually officers stopped him, arrested him, and brought him to a station for detention.  They discovered that he was a trainee police officer.  He complained of illness, and was taken for medical attention.  Officers planted a recording device near his bed.  After six hours in detention, he was released.  An arresting officer issued him a citation for violation of Penal Code section 148(a), for resisting or delaying an officer.  Due to the arrest and detention, the plaintiff was fired, effectively ending his law enforcement career.  After receiving jury responses to factual questions, the trial court ruled that the defendant officers did not have reasonable suspicion to detain the plaintiff and that he was arrested without probable cause.  The jury then returned a verdict in the plaintiff's favor on his causes of action for tortious interference with contract or economic advantage, and violation of Civil Code section 52.1 (the Bane Act).

The appellate court upheld the ruling that the officers lacked reasonable suspicion to detain the plaintiff.  Because the officers were acting unlawfully in attempting to detain him, and Penal Code section 148(a) bars only interference with lawful police conduct, the officers lacked probable cause to arrest him.

The court rejected the defendants' theory (based upon legal scholars' commentary) that Penal Code section 847(b), which immunizes officers from false arrest/imprisonment liability if the arrest was lawful or the officer has reasonable cause to believe it is lawful, creates the state law equivalent of federal law qualified immunity for false arrest.  Analyzing the statute and its history, the court concluded that the statute is phrased in the disjunctive to immunize officers for arrests for reasonable cause when the officers learn facts before arraignment that destroy the belief upon which the officer's reasonable cause was based.

The court also rejected an argument that the trial court should not have submitted the Bane Act claim to the jury, because the plaintiff had not proven that the officers committed an act of violence, intimidation, or coercion apart from the arrest itself.  That interpretation of the Bane Act arose out the Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947 case, which dealt with an unlawful detention after an arrest with probable cause, and subsequent cases.  The court held that Shoyoye's interpretation of the Bane Act does not apply when the initial arrest of the plaintiff lacks probable cause.  Where an unlawful arrest is properly pleaded and proved, the egregiousness required by the Bane Act is present if the arresting officer had a specific intent to violate the arrestee's right to freedom from unreasonable seizure.  That specific intent was shown here by evidence that once the officers discovered their error in arresting the plaintiff, they "doubled-down" by detaining him and issuing him the citation that ended his career.

Public Entity May Not Retaliate against Employee for Disclosing Entity's Potential Fraud upon the Court

In Whitehall v. County of San Bernardino, published November 15, 2017, the Fourth District Court of Appeal, Division 2, affirmed a trial court order denying the defendant county's Anti-SLAPP special motion to strike the plaintiff social worker's whistleblower suit under Labor Code section 1102.5.  The deputy director of Children and Family Services instructed the plaintiff to withhold photographs of a home being investigated for a baby's death, from which four other children were removed, and to provide other photographs that had been altered.  The plaintiff gave the assigned deputy county counsel a disc with all of the photographs obtained from the police.  She was concerned that the dependency court was not being given an accurate picture of the home.  Soon after, plaintiff was removed from the case and was instructed not to discuss the case with the new social worker on the case.  The plaintiff then learned the original social worker on the matter had been fired.  A new trial, assigned to a different judge, was ordered on the ground that the previous social worker had lied, and the evidence previously provided to the court was marked confidential with instructions that the new judge not view it.  The plaintiff decided to file a motion with the court stating that a fraud had been perpetrated upon it.  She consulted with an attorney, who prepared the filing.  She and two other social workers filed the motion.  Six days later, the plaintiff was placed on administrative leave.  The county stated she was put on leave while it investigated her for potential improper release of confidential information.  Two months later, the county decided to terminate the social worker.  She resigned first.  She then filed the whistleblower suit.

The appellate court held that the trial court properly denied the county's anti-SLAPP motion.  The appellate court disagreed with the trial court's ruling that the suit arose out of protected activity by the county in investigating the potential release of confidential information.  The plaintiff's cause of action did not arise from the investigation, but from the alleged retaliatory adverse employment action, which is not protected activity.  The appellate court agreed with the trial court's ruling that the plaintiff showed a sufficient chance of prevailing; the timing of the administrative leave, coming six days after the plaintiff's report, shows at least minimal merit to the retaliation claim.  Further, the plaintiff's disclosure of confidential information to the court cannot be deemed public disclosure of confidential information where county CFS is deemed an arm of the court, and dependency cases are maintained confidential by the court.  The county was not immune from liability under Government Code sections 820.2 or 815.2/821.6, because the action was brought against the county, not an employee, and as a matter of public policy actions against a public entity for claims of discharge from or termination of employment based on whistleblower claims are not barred by governmental immunity.  The court held that privilege did not apply to either presentation of false or manipulated evidence, or retaliation against an employee for disclosing a possible fraud upon the court.  In the context presented, the administrative leave was an adverse employment action.  Finally, the appellate court rejected the defense that the plaintiff acted with unclean hands.

Taxpayer Status Gives Plaintiffs Standing to Assert Conflict of Interest Challenge to Public Entity Transaction

In San Diegans for Open Government v. Public Facilities Financing Authority of the City of San Diego, published November 9, 2017, the Fourth District Court of Appeal, Div. 1 reversed dismissal of the plaintiff organization's action challenging municipal ordinance authorizing issuance of bonds to refinance the defendant authority and defendant city's obligations concerning building of a baseball park. The plaintiff organization alleged that it is a nonprofit taxpayers association and that at least one member is a resident of the defendant city.  It alleged that one or more members of the financing team that participated in preparing the bonds had a financial interest in the bonds' sale, giving rise to a conflict of interest under Government Code section 1090.  Government Code section 1092 prescribes that a contract made in violation of section 1090 may be avoided at the instance of "any party" except the officer interested in the contract.  The trial court dismissed the action for lack of standing, ruling that the plaintiff was not a party to the contract and so could not bring a section 1092 action.

The appellate court disagreed.  In light of the broad deterrent purpose of section 1090, intended to prevent contracts that violate the statute regardless of the subjective intent of those who entered into them, the court interpreted the term "any party" was interpreted to mean any litigant with an interest in the contract sufficient to confer standing.  That includes taxpayers of the municipality that entered into the transaction.  The court disagreed with the holding in San Bernardino County v. Superior Court (2015) 239 Cal.App.4th 679 that taxpayer status is insufficient to confer standing.  The result in San Bernardino County was distinguishable because the contract in the case was validated by a court judgment before the challenge took place, and so could not be avoided.

Charter City Was Exempt from State Law Requirement That Its Specific Plan Be Consistent with Its General Plan

In The Kennedy Commission v. City of Huntington Beach, published October 31, 2017, the Fourth District Court of Appeal, Division 2 reversed a trial court writ striking down the respondent city's amendment to its specific housing plan as void ab initio because it was inconsistent with the city's general plan.  Government Code section 65454, which requires that a specific plan be consistent with a city's general plan, does not apply to a charter city unless the city adopts a consistency requirement by charter or ordinance.  The court analyzed the city's charter and ordinances and determined that it had not adopted a consistency provision under the statutes.

Shooting Downed Suspect Who No Longer Poses Threat and Stomping on His Head Violates Clearly-Established Law

In Zion v. County of Orange, published November 1, 2017, the 9th Circuit Court of Appeals  reversed summary judgment granted to the defendant deputy.  The plaintiff's decedent bit his mother and cut her and a roommate with a kitchen knife.  When deputies arrived, the decedent ran at a deputy and stabbed him in the arms.  The defendant deputy witnessed the attack.  The decedent started walking back toward an apartment complex.  The defendant deputy shot the decedent nine times, from 15 feet away.  The decedent fell to the ground  The deputy ran up to the decedent and fired nine more rounds from a distance of four feet.  The decedent curled up on his side.  The deputy walked in a circle.  The decedent was still moving.  The deputy took a running start and repeatedly stomped on the decedent's head.  The decedent died at the scene.  The plaintiff did not challenge the initial nine shots, but contended that the shots and head stomp after the decedent fell were excessive force and violated the Fourth and Fourteenth Amendments.

The 9th Circuit concluded that the defendant deputy was not entitled to summary judgment based on qualified immunity.  A jury could find that the deputy shot and stomped the decedent when the decedent ceased to pose a threat.  It was clearly established that doing so would violate the decedent's Fourth Amendment right to be free of excessive force.  The gunshots did not violate the Fourth Amendment, because the second volley closely followed the first, there was no time for deliberation, and whether excessive or not the shots served a legitimate law enforcement purpose:  stopping the suspect.  But the head stomps appeared to follow deliberation by the deputy.  A jury could determine that the deputy stomped the decedent's head out of anger, after the decedent no longer posed a threat.  That would be a violation of substantive due process.