Government Liability Update

Administrative Mandamus Petitioner's Failure to Submit to Deposition on Standing Justified Terminating Sanction

In Creed-21 v. City of Wildomar, ordered published December 19, 2017, the Fourth District Court of Appeal, Division 2 affirmed a defense judgment after an order imposing an issue sanction in a CEQA petition action.  The petitioner challenged a city decision permitting real party in interest Wal-Mart to build a retail complex in the city.  Wal-Mart alleged that the petitioner was a shell corporation that lacked standing to bring the petition.  Wal-Mart noticed a Person Most Qualified deposition and sought production of documents.  After the trial court granted a motion to compel the deposition, and the PMQ failed to appear for deposition, produce documents, or pay the monetary sanctions the court imposed, the court imposed an issue sanction on standing, which acted as a terminating sanction.

The appellate court ruled that the trial court acted within its discretion.  The petitioner's conduct showed that lesser sanctions were not effective.

Officers Do Not Violate Fourth Amendment by Searching, without Warrant, Residence over Objections of Third-Party Resident if They Have Probable Cause to Believe Probationer Accused of Violent Crime Resides There

In Smith v. City of Santa Clara, published November 30, 2017, the 9th Circuit affirmed a judgment after jury verdict in favor of the defendant city and its police officers who conducted a warrantless search of a duplex in which the plaintiff resided, over the plaintiff's protests.  The police had probable cause to believe that the plaintiff's daughter, a probationer, had stabbed a victim and was at large.  The daughter had repeatedly listed the plaintiff's duplex as the daughter's residence.  The plaintiff argued that under U.S. Supreme Court authority holding that a warrantless search of a residence based only on a resident's consent violates the Fourth Amendment if another resident objects to the search, the search violated her Fourth Amendment rights.

The 9th Circuit held that under the circumstances--the officers had probable cause to believe that a probationer who had committed a violent crime and who was at large lived in the residence--the interests in apprehending the probationer and thus protecting the public outweighed the non-probationer resident's privacy interests.  The case law concerning consent did not apply, because the rule that warrantless searches of probationers' residences are permitted is not based on consent.