Government Liability Update

County Counsel's Breach of Contract Suit against County for Employment Investigation Does Not Survive Anti-SLAPP

In Guarino v. County of Siskiyou, ordered published March 29, 2018, the Third District Court of Appeal affirmed a trial court order granting an anti-SLAPP special motion to strike the plaintiff's complaint.  The plaintiff was county counsel.   According to the plaintiff's allegations,i n 2011, the county investigated a complaint by the plaintiff's subordinate that the plaintiff had harassed the subordinate.  The investigation was closed by the county with no finding of wrongdoing.  At the end of the year, the county appointed the plaintiff for a second term.  In 2012, the subordinate resigned and filed a federal suit against the plaintiff and the county.  Soon after, the county board of supervisors conducted a closed-session employment review of plaintiff, and instructed him to terminate the premises.  Another investigation exonerated the plaintiff.  The board voted to rescind the plaintiff's second term.  The complaint alleged these board votes were illegal, because they did not follow the procedure under the Government Code for removing a county counsel.  The administrative officer then filed an accusation with the county clerk under the Government Code procedure for removing a county counsel.  The plaintiff resigned.  He then sued the county, the board of supervisors, and the county administrative officer on assorted grounds.  The causes of action at issue in the appeal were breach of employment contract and breach of employment contract for constructive discharge.

The appellate court ruled that the first prong of anti-SLAPP was established, because the investigation and the resulting actions of the county, board, and administrative officer were all protected speech.  On the second prong, the plaintiff had the burden of showing a probability of prevailing on the merits.  He could not make that showing on his breach of contract causes of action, because public employment is held by statute, not contract.

Public Colleges and Universities Owe Students a Duty to Protect Them from Foreseeable Violence during Curricular Activities

In Regents of University of California v. Superior Court (Rosen), published March 22, 2018, the California Supreme Court reversed the lower appellate court's decision that UCLA owed no duty to a student to warn her of or protect her from another student's attack.  The school was aware that the student who ultimately attacked the plaintiff was experiencing auditory hallucinations and was showing symptoms of paranoid schizophrenia, including shoving one student.  The school attempted to provide the assailant with mental health care, and evicted him from student housing after he shoved the other student.  While in a school chemistry lab doing schoolwork, the assailant unexpectedly stabbed the plaintiff with a kitchen knife.  

The Supreme Court concluded that because of the relationship between colleges and their students--particularly the vulnerability of students to attacks from fellow students, and the schools' superior knowledge of threats--public colleges and universities are in a special relationship with their students, which imposes a duty of care to take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety--including foreseeable violence--during curricular activities.  The various policy considerations of duty analysis support the existence of that duty.  Foreseeability and reasonable care will vary under the circumstances of each case.  The Supreme Court remanded the case to the court of appeal to decide whether triable issues of material fact remain on the questions of breach of duty and immunity.  In a concurring opinion, Justice Corrigan opined that because the attack occurred in a classroom, there was no need to consider whether colleges owed a duty to students involved in curricular activities outside the classroom.

Approving Engineer's Declaration That He Did Not Consider Safety Feature Plaintiff Contends Should Have Been Present Does Not Defeat Design Immunity

In Rodrieguez v. Department of Transportation, published March 27, 2018, the Fifth District Court of Appeal affirmed summary judgment for Caltrans in a case alleging a dangerous condition of public property.  A pickup truck in which the plaintiff was a passenger ran off the road on a state highway.  The plaintiff contended that the shoulder where the truck went off the road was in a dangerous condition because it did not have a "rumble strip," which would have alerted the driver that he had veered onto the shoulder.  Caltrans moved for summary judgment based on design immunity under Government Code section 830.6.  It presented the declaration of the Caltrans project engineer who drafted the 1992 plans for installing the eight-foot paved shoulder.  The engineer declared that he had discretionary authority to approve the plans; that he approved them by signing them; and that he would not have approved them if they had not met appropriate engineering standards.  He further declared that he did not consider using rumble strips, because at the time he approved the plans using rumble strips was not common practice, and that no standards or policies called for their use.  The plaintiff contended the trial court erred by granting summary judgment based on design immunity, because the element requiring discretionary approval of the plan was not met.  The plaintiff contended that the engineer had to consider whether to install rumble strips for the absence of the strip to be part of an approved plan.

The appellate court rejected the argument.  Under case law, the factors the entity or employee approving the plan considered when exercising discretion to approve are irrelevant to the discretionary approval element.  Instead, they are relevant only to the element requiring substantial evidence that the approval was reasonable.  Case law requiring that the alleged dangerous condition be part of the approved plan did not require a different result.  The alleged dangerous condition was the bare shoulder, without rumble strips; and the bare shoulder was part of the approved plan.

Trail Immunity Applies Where Person Approaching Trail Falls Down Slope, Crosses Trail, and then Falls Off Adjoining Embankment

In Arvizu v. City of Pasadena, ordered published March 23, 2018, the Second District Court of Appeal, Division 3 affirmed summary judgment in the City's favor in a lawsuit alleging a dangerous condition of public property.  The plaintiff entered a portion of the Arroyo Seco park in the early morning, while the park was closed, headed for a trail running along the Arroyo Seco stream near the Colorado Street Bridge.  He attempted to walk down a natural slope toward the trail.  He lost his footing on the slope, tumbled down it, across the trail, and across the edge of a concrete retaining wall level with the trail's edge, falling onto the dirt and rocks below.  He alleged that the absence of guard rails or warnings along the edge of the retaining wall was a dangerous condition of public property.  The trial court granted summary judgment, both on Government Code section 831.4's trail immunity and on the absence of a dangerous condition.

The appellate court affirmed solely on the section 831.4 immunity.  Because the trail along the retaining wall lead to recreational activities, subdivision (b) of the statute applied.  The plaintiff's argument that the immunity did not apply because he was not "using" the trail failed.  He was with a group headed towards the trail; he was using the slope to get to the trail; and he briefly was on the trail before heading over the retaining wall.  His argument that the dangerous condition was the lack of handrail or warning signs on the retaining wall, rather than a condition of the trail, also failed.  Due to the narrow space along the retaining wall, any guardrail or warning sign would have to be on the trail.  Further, the trail immunity applies to property abutting the trail that allegedly makes the trail dangerous.  

Sheriff Cannot Be Held Liable in Individual Capacity for Allegedly Improper Conditions of Civil Detention

In King v. County of Los Angeles, published March 12, 2018, the 9th Circuit affirmed in part and reversed in part summary judgment granted to the defendant county and its sheriff.  While awaiting adjudication of an involuntary commitment petition under California’s Sexually Violent Predator Act, the plaintiff was incarcerated in a county jail for eight years.  For more than six of those years, he was confined in administrative segregation with criminal detainees.  He was required to wear a red jumpsuit that identified him as a SVP detainee.  He was attacked by fellow inmates, allegedly because of the red suit.  He was eventually transferred to a mental hospital, with more favorable conditions, until he passed away.  During his confinement in jail, he brought this suit, alleging his confinement violated substantive due process.  The defendants contended he was appropriately imprisoned due to his violent tendencies.  The plaintiff contested those facts.  The district court concluded that there was a legitimate, non-punitive ground for imprisoning him in the jail under the challenged conditions.

The 9th Circuit reversed summary judgment for the county and for the sheriff in his official capacity.  Under the Fourteenth Amendment, a civil detainee cannot be subjected to conditions that amount to punishment.  Confinement conditions are presumably punitive if they are identical, similar to, or more restrictive than those in which criminal counterparts are held.  They are also presumed punitive if a detainee awaiting adjudication under SVPA is detained under conditions more restrictive than those who have been committed under SVPA.  Viewing the facts in the light most favorable to the plaintiff, both presumptions applied.  There was a triable issue of fact on whether there was a legitimate, non-punitive ground for the conditions of confinement. 

There was, however, no evidence that the sheriff supervised the day-to-day operation of the jail, or was personally involved in the plaintiff's confinement.  The district court therefore properly granted him summary judgment.

Pro Se Prisoner Adequately Alleged Claim for Excessive Force

In Byrd v. Phoenix Police Dept., published March 16, 2018, the 9th Circuit reversed a district court's dismissal, at the pre-answer screening stage, of a pro se prisoner's 42 U.S.C. § 1983 lawsuit against police officers.  The plaintiff alleged that the defendant officers stopped him for riding a bicycle without a headlight; did not issue him a citation; and then "beat the crap out of" him, causing severe body pain, emotional distress, and  loss of 70% of his vision.  The district court concluded the allegations of excessive force were too vague to survive dismissal.  The 9th Circuit held that under the liberal standard for interpreting pro se litigants' pleadings, the plaintiff's colloquial phrase and the allegation of extensive injury sufficed to plead use of excessive force with sufficient detail.

Although the Government Claims Act Exempts Childhood Sexual Molestation Causes of Action from the Claim Presentation Requirement, It Permits Local Public Entities to Impose Their Own Claim Requirements (No Longer Good Law)

Update:  On July 17, 2019, the California Supreme Court transferred this decision to the Court of Appeal with directions to vacate its decision and reconsider the cause in light of subsequent legislation amending Government Code sections 905 and 935 to bar local entities from imposing claim requirements on childhood sexual abuse claims.  The Court of Appeal then issued an unpublished decision denying the defendant district's writ petition.  The decision summarized below is no longer good law.

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In Big Oak Flat-Groveland Unified School District v. Superior Court (Doe), ordered published March 16, 2018, the Fifth District Court of Appeal issued a writ of mandate directing the trial court to sustain the defendant school district's demurrer to the plaintiff's complaint.  The minor plaintiff alleged that the defendant school district had negligently failed to prevent a teacher's alleged molestation of her between 2013 and 2014.  The plaintiff filed suit against the district in 2015.  She did not present a claim for damages.  The complaint alleged that under Government Code section 905, subdivision (m), her claim for childhood sexual abuse was exempt from the claim presentation requirement in the Government Claims Act.  The district demurred on the ground that Government Code section 935 authorized local public entities to impose their own claim requirements on claims exempted by Government Code section 905 from the Government Claims Act's claim-presentation requirements.  The trial court overruled the demurrer, on the ground that the Legislature's intent in enacting section 905(m) was to exempt childhood molestation claims from the claim-presentation requirements.

The appellate court held that Government Code section 935 permitted the district to enact its own claim-presentation requirements for claims exempted under section 905; and that because the plaintiff failed to satisfy those requirements by presenting a timely claim, her suit against the district was barred.  Government Code sections 905 and 935 are unambiguous and coordinated:  If a claim is listed in section 905, the Government Claims Act's claim-presentation requirements do not apply; but under section 935, claims against a local public entity exempted by section 905 "and which are not governed by any other statutes or regulations expressly relating thereto" shall be governed by the claim procedure prescribed in any charter, ordinance, or regulation the local public entity adopts.  The procedure may include a claim-presentation procedure, so long as the time for presenting the claim is not shorter than that prescribed in the Government Claims Act.  Multiple cases have held that these provisions are unambiguous, and permit local entities to impose their claim-presentation requirements on causes of action otherwise exempt under section 905.  Because the statutes are not ambiguous, there is no need to consider the Legislature's intent.  But if that intent is considered, the court ruled, it does not change the result.  The Legislature passed section 905(m) with the intent that childhood sexual molestation claims be exempted from the claim-presentation requirement.  But the Legislature did not address or consider section 935, or provide that section 905(m) was exempt from it.  The plaintiff argued that Code of Civil Procedure section 340.1, which governs statutes of limitation for childhood sexual molestation claims, was an "other statute" governing under section 935, since section 905 refers to it.  The court rejected this argument, interpreting the "other statute" language to refer to another statute concerning claims presentation.  A statute of limitation does not govern claims presentation.  The appellate court commented that if the Legislature's intent was to exempt childhood sexual molestation claims from local entities' claim-presentation requirements, "it is in the Legislature's province, not ours, to address the issue."

Pointing Gun at Head of Unarmed Suspect During Traffic Stop Was Excessive Force, But Officer Entitled to Qualified Immunity

In Thompson v. Copeland, published March 13, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment granted to a defendant sheriff's deputy.  The defendant deputy pulled the plaintiff over for traffic infractions.  The deputy ran the plaintiff's identification, and learned he had a suspended license, he was a convicted felon, and that his most recent felony was for possessing a firearm.  The officer decided to arrest the plaintiff for driving with a suspended license and to impound his vehicle.  The deputy called for backup, patted the plaintiff down, found no weapons, and had the plaintiff sit on the bumper of the deputy's car.  The deputy conducted an inventory search of the car the plaintiff was driving, and found a loaded revolver in a plastic bag on the floor.  The deputy decided to arrest the plaintiff for a felony violation of firearm law.  The other deputy who arrived was watching the plaintiff, who was 10-15 feet from the car.  The deputy drew his firearm.  The deputy testified he held his pistol in the "low ready" position, not pointed at the plaintiff.  The plaintiff testified that the deputy pointed the gun at the plaintiff's head and told him he would kill him if he did not surrender.  The plaintiff complied with all orders.

The panel unanimously ruled that, taking the plaintiff's version as true, the deputy violated the plaintiff's Fourth Amendment rights by an unreasonable use of force.  Pointing a gun at an unarmed suspect at a traffic stop, in the absence of any resistance and with the plaintiff's gun 10-15 feet away, was a use of force that was unreasonable under the circumstances.

The majority of the panel, however, ruled that the deputy was entitled to qualified immunity, because at the time of the incident the law did not clearly establish that the use of force was unreasonable.  Previous cases where guns pointed at heads of unarmed suspects were deemed to violate the Fourth Amendment either did not take place at traffic stops, involved multiple officers rather than two, or involved a suspect who was not a convicted felon who had been convicted for gun possession.  They did not so clearly establish the law that no reasonable officer could have thought the use of force here constitutional.  A dissenting judge disagreed, and opined that the 9th Circuit's prior decisions clearly established that pointing a gun at the head of an unarmed suspect violated the Fourth Amendment.  The entire panel agreed that after this case, the law was clearly established.

 

Social Worker Violates Clearly-Established Law by Removing Child from Parent without Warrant Based on Parent's Lack of Insurance to Pay for Inpatient Mental Treatment

In Keates v. Koile, published March 6, 2018, the 9th Circuit Court of Appeals reversed in part a district court's dismissal of a mother's and daughter's suit against multiple Arizona child protective services employees.  The complaint alleged that the mother took the 13-year-old daughter to a clinic, where she stated she had been sad, had contemplated suicide in the past, but was not currently experiencing suicidal ideation. The clinic referred the mother to the emergency room of a hospital. The hospital rejected the mother's plans for caring for the daughter at home, and decided to send her to a mental hospital.  The mother initially refused to provide contact information, because she did not have health insurance and was concerned that she was going to be billed for expensive inhouse treatment.  Someone at the hospital called CPS and reported that the minor was suffering severe depression and had attempted suicide, and that the mother could not formulate a safety plan.  The child was kept overnight.  A defendant social worker interviewed the minor without the mother present.  The minor told the social worker her only complaint about her mother was that she yelled, screamed, and cussed.  The minor denied having attempted suicide.  The social worker then issued a temporary custody notice, allowing him to take the child away from her mother and put her into CPS custody.  The daughter was strapped to a gurney, and delivered by ambulance to a mental hospital.  The intake nurse found the daughter's suicide risk to be low.  The social worker concluded that the mother could not care for the daughter.  CPS filed a dependency petition.  When the daughter was discharged, she was put in a foster home and not reunited with her mother for four months.  The district court dismissed the complaint because it concluded that based on the facts alleged the defendants--social workers involved in the case--were entitled to qualified immunity.

The 9th Circuit ruled that the social worker who issued the temporary custody notice and recommended the dependency petition was not entitled to qualified immunity.  It is clearly established that the rights of parents and children to familial association under the Fourteenth, First, and Fourth Amendments are violated if a state official removes children from their parents without their consent or a court order, unless, after reasonable investigation, the available information establishes reasonable cause to believe the child is in imminent danger of serious bodily injury; and the scope, degree, and duration are reasonably necessary to avert the specific injury at issue.  Detaining a minor and removing her from her mother's custody merely because the mother does not have health insurance and is reluctant to pay for inpatient treatment is not an emergency that permits removing a child without a warrant.  The court upheld dismissal of the complaint against the other CPS workers named, because the allegations of their involvement did not state a plausible case that they were sufficiently involved to render them liable.