Government Liability Update

Claimant Who Alleges Claim Is Timely Due to Delayed Discovery May Be Estopped from Asserting Public Entity Waived Untimeliness

In Estill v. County of Shasta, published July 31, 2018, the Third District Court of Appeal reversed an order granting new trial after the trial court granted the defendant county summary judgment.  The plaintiff, a jail employee, was the subject of an internal affairs investigation in 2009.  In September 2009, the sheriff's office served the plaintiff with a notice of charges in support of proposed termination.  She was then mistakenly denied entry into the jail based on the belief she had been fired.  She realized jail staff had improperly received information about her, and complained.  Throughout 2009, she received information that others were inappropriately discussing her investigation.  She heard rumors about the parentage of her son.  She was terminated effective January 2010, and her administrative appeal denied in September 2010.  During the first half of 2010, she heard more comments about her son and heard that people unconnected to the investigation were talking about her case.  In February 2012, she presented the county with a claim for damages.  The claim alleged that information about the investigation had been leaked, that gossip and rumors had been spread, that a hostile environment was created, and that the plaintiff was harassed.  The claim alleged that the incident occurred in September 2009, but that the plaintiff "first became aware" of the incident in September 2011.  The County responded with a denial on the merits under Government Code section 913.  It did not send a Government Code section 911.3 notice that the claim was untimely.  The plaintiff sued under various causes of action that required a claim.  During her deposition, the defendants learned that she was aware of the alleged wrongdoing as early as 2009.  It moved for summary judgment.  The trial court initially granted summary judgment because the plaintiff failed to present a timely claim.  It then granted new trial, concluding triable issues of fact existed on whether the defendants had waived the claim-timeliness defense under section 911.3 by not sending a notice the claim was untimely.

The appellate court concluded that the undisputed facts established that the claim was untimely, and that the plaintiff was equitably estopped from arguing that the defendants waived the claim's untimeliness.  Under the delayed-discovery doctrine, the plaintiff's cause of action accrued when she became aware that information from her IA investigation was leaked and being discussed by people at the sheriff's department and other agencies, she had a strong suspicion about the source of the leak, and she was aware people were making allegedly defamatory statements about her and her son.  It was undisputed that she learned of these facts and her cause of action accrued no later than July 2010.  Ignorance of the identifies of the alleged wrongdoers did not affect accrual, because the defendant's identity is not an element of her cause of action.  She had suspicion that someone had done something wrong to her.  Because her claim was untimely, she could not maintain a claim for damages against the defendants unless she was exempt or excused from complying with the claim requirements.  The plaintiff's argument that the defendants waived the late-claim defense because the section 911.3 notice was not sent failed, because she was equitably estopped from making that argument.  She represented that she did not become aware of the alleged wrongdoing until September 2011, and omitted from the claim the facts showing she became aware earlier.  The county was not aware of the true facts concerning her knowledge, and relied on her representation in not sending an untimely-claim notice.  Where, as here, the facts are undisputed, estoppel is a question of law.  Just as a public entity may be estopped from asserting noncompliance with the Government Claims Act when its agents prevented or deterred a claimant from complying, a claimant may be estopped from invoking the section 911.3 waiver provision where the entity's failure to notify the claimant the claim is untimely is induced by the claimant's representation on the form.  The county did not forfeit the estoppel argument by failing to plead estoppel in its answer as an affirmative defense.  A party is excused from pleading estoppel where the party is unaware at the time it prepares the pleading that the defense may rest on estoppel. The plaintiff's argument that the county misled her by not giving her notice of late-claim relief procedures fails because even if it had given notice, she would not have been able to pursue those procedures:  more than a year had passed since accrual.

School Board's Policy of Opening Meetings with Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, published July 25, 2018, the 9th Circuit affirmed the district court's grant of summary judgment and injunctive relief against the defendant school board.  The board instituted a policy of beginning each meeting with a prayer.  A rotating set of presenters, from a list, delivered the invocations.  Usually invited clergy delivered the prayers.  On some occasions, board members led the prayers. School board members made proselytizing remarks concerning Christianity in relation to the invocations.  Minor students, from grade school to high school age, took part in the school board meetings.  The injunction barred the board members from conducting, permitting, or endorsing school-sponsored prayers in board meetings.

The 9th Circuit agreed that under the circumstances the prayer policy violated the Establishment Clause of the First Amendment.  The court ruled that the prayer did not fall under the legislative-prayer tradition that permits certain types of prayers to open legislative sessions:  solemnizing and unifying prayers aimed at the legislators themselves, conducted before an audience of mature adults.  Instead, they are delivered before a group of minor students whose presence is not voluntary and whose relationship to board members (unlike a constituent's relationship to a legislature) is not one of full parity.  Further, the historical tradition of legislative prayer does not apply to school board prayer; at the time of the framing, free public education was virtually nonexistent.  The framers therefore could not have contemplated whether opening prayers at a government-run school board's meeting would violate the Establishment Clause.  The Lemon v. Kurtzman test for determining impermissible establishment of religion therefore applies.  The prayer policy fails that test, because it lacks a secular legislative purpose.  Government action violates that prong of Lemon when the government's predominant purpose is to advance or favor religion.  In evaluating purpose, the court takes the statements of public officials into account.  Shortly after the policy was adopted, a board member stated the policy's purpose was to further Christianity.  Further, there is no secular ground for limiting solemnization of meetings to prayers or presuppose the solemnizers will be religious leaders.  The expressed purpose of demonstrating tolerance for religious diversity fails, because there are many non-Christian faiths in California whose membership lacks a "critical mass" in the district to sustain a community there.  The invocation policy therefore reinforces the dominance of particular religious traditions.  Further, the policy does not embrace nonreligious belief systems.  Further, the policy fosters an impermissible entanglement between religion and government. 

Jury Instruction to Defer to Prison Officials Limited to Evidence Treatment Results from Security Concerns

In Shorter v. Baca, published July 16, 2018, the 9th Circuit reversed the denial of a new trial motion after a jury trial that resulted in a defense verdict.  When the plaintiff, a pretrial detainee, arrived at the county women's jail, a social worker diagnosed her with a mood disorder.  She was placed in the unit for mentally ill women.  The plaintiff presented uncontroverted evidence that the county had a policy of shackling the women to steel tables in the middle of an indoor recreation room as the recreation for the women, and that jail officials as a matter of routine would chain prisoners, naked, to their cell doors for hours at a time without access to food, water, or a toilet if they did not comply with required searches.  The only justification offered for curtailing the plaintiff's meals, showers, and recreation was a concern about overcrowding and understaffing in the facility. The court gave a 9th Circuit model jury instruction that the jury must give deference to jail officials in deciding the plaintiff's conditions of confinement and excessive search claims.

The 9th Circuit held that the deference instruction should not have been given.  The instruction ordinarily should be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy.  That was not the case for the claim that the jail curtailed the plaintiff's meals, showers, or recreation.  The appellate court further ruled that the instruction should not have been given as to the plaintiff's complaint that the search procedure of chaining naked prisoners to doors for hours.  While there was evidence this procedure was partially security-based, substantial evidence supported the plaintiff's argument that the procedure was an unnecessary, unjustified, and exaggerated response to the need for security.  The deference instruction should not be given under those circumstances either.

Officers' Sudden Warrantless Entry into Plaintiffs' Home Was Proximate Cause of Officer Shooting Homeowner When Homeowner Moved BB Gun

In Mendez v. Conley, published July 27, 2018, the 9th Circuit Court of Appeals, on remand from the U.S. Supreme Court, affirmed judgment against the defendant sheriff's deputies under 42 U.S.C. section 1983, and reversed the judgment in the defendants' favor under California negligence law.  The deputies were looking for a fugitive.  They received a tip that the fugitive rode a bicycle past a residence.  The deputies knocked and entered the residence.  There was a small house behind the residence.  The house showed signs of being inhabited. The deputies entered the house, without knocking.  One of the plaintiffs was sleeping on a futon within.  His BB gun was by his side.  When the officers entered, the plaintiff picked up the BB gun to move it.  It momentarily faced the deputies.  The deputies fired on that plaintiff, seriously wounding him and the other plaintiff in the house.  The district court and 9th Circuit originally ruled that the use of force was reasonable in itself, but was unconstitutional under the "provocation" rule because the deputies' illegal entry provoked the plaintiff to pick up the gun and resulted in the use of force.  The Supreme Court reversed this ruling, holding that the "provocation" rule conflated Fourth Amendment violations.  It remanded for determination of whether the improper warrantless entry proximately caused the plaintiffs' injuries.

The 9th Circuit ruled that the entry did proximately cause the injury.  One of the purposes on the Fourth Amendment's ban on officers entering a residence without a warrant, exigent circumstances, or consent is to avoid violent confrontations between officers and those within a dwelling.  The deputies' violation of the Fourth Amendment without entering was therefore a proximate cause of the incident.  Although the officers were entitled to qualified immunity for not knocking and announcing their presence, and that might be seen as another cause of the incident, the violation of multiple duties causing an incident does not eliminate proximate cause by the actionable violation.  Because the inhabitant's act was foreseeable, it was not a superseding cause.  The 9th Circuit also held that under the circumstances, the officers were negligent.  Although the deputies' failure to knock and announce was not actionable under section 1983 due to qualified immunity, that did not eliminate exposure to liability under state negligence law.

Officers Allegedly Violated Clearly-Established Law by Directing Trump Supporters to Walk Near Violent Protesters

In Hernandez v. City of San Jose, the 9th Circuit Court of Appeals, on interlocutory appeal, affirmed denial of a motion to dismiss based on qualified immunity.  The plaintiffs, who attended a rally for then-presidential candidate Donald Trump, alleged that police officers who knew that a mob around the rally had attacked Trump supporters previously that evening, yet shepherded the attendees into the group of protesters and actively prevented the attendees from exiting via a route that would not take them through the protesters.  They alleged that the officers were liable under 42 U.S.C. section 1983 for violating their due process rights, and that the city was liable because the police chief ratified the officers' acts by praising the officers afterward.

The appellate panel agreed that based on the allegations of the complaint, the officers were not entitled to dismissal based on qualified immunity.  The facts alleged adequately stated a case against the officers for violation of the attendees' due process rights based on the "state-created danger" doctrine, because if proven they would show the officers created a danger of harm from third parties to the protesters that would not have otherwise existed; and that they did so with deliberate indifference, because they knew of the potential danger from the protesters.  Further, the alleged acts violated clearly-established law.  9th Circuit case law established that the state-created danger applies to the crowd-control context, although that case found no constitutional violation under the facts of that case.  This was one of the rare situations where the violation was so obvious that a case directly on point was not necessary to clearly establish that the officers' actions would violate the plaintiffs' constitutional rights.  The panel also ruled that the appellate court had no jurisdiction to consider the city's interlocutory appeal, because the city's alleged liability in the case was not inextricably intertwined with the issue of whether the officers were entitled to qualified immunity.

Split in Authority on Whether Intentional Tortfeasors Entitled to Fault Apportionment under Proposition 51; Use of Excessive Force with Intention to Deprive Person of Civil Rights Violates Bane Act

In B.B. v. County of Los Angeles, partially published on July 10, 2018 and modified on July 12, 2018, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a judgment against the defendant county and its deputies in a case in which a suspect passed away after deputy use of force.  The jury apportioned the decedent 40% fault for his own death, found two deputies each 20% at fault, and allocated 20% fault to the remaining deputies.  The jury awarded $8 million in noneconomic damages.  The court entered judgment against one of the deputies for the full amount of the award, on the ground that the jury found he intentionally harmed the decedent.

The appellate court reversed this ruling.  It ruled that in personal injury and wrongful death cases, Civil Code section 1431.2 (aka Proposition 51) requires that noneconomic damages be apportioned as to all defendants according to their respective fault for the injury.  It declined to follow case law from other courts holding or stating in dictum that intentional tortfeasors are not entitled to have the noneconomic judgments against them reduced. 

The appellate court also reversed summary adjudication of the plaintiffs' Civil Code section 52.1 (Bane Act) cause of action.  The trial court ruled that because there was probable cause to arrest the decedent, the use of excessive force was not sufficient in itself to establish Bane Act liability; instead, the plaintiffs had to show some threat, coercion, or intimidation independent of the violation of the civil right itself.  The appellate court ruled that this standard applies only where the violation of the civil right results from negligence or unintentional error.  Where the violation is intentional or spiteful, however, the threat, coercion, or intimidation inherent in the violation of the civil right is sufficient.  There must be a showing that the defendant had the specific intent to violate the subject's civil rights.  The plaintiffs' opposition to summary adjudication presented sufficient evidence to raise a triable issue of fact on whether the defendants deliberately subjected the decedent to excessive force beyond that necessary to make the arrest.  Once the deputles'  use of force crossed that threshold, their conduct became a coercive interference with the decedent's civil rights as proscribed by the Bane Act. 

 

Adopted-Out Son Has No Standing to Sue Police for Death of Biological Mother

In Wheeler v. City of Santa Clara, published July 3, 2018, the 9th Circuit Court of Appeals affirmed a district court order dismissing a complaint.  The plaintiff's biological mother died in a confrontation with police.  The plaintiff was the decedent's only living relative.  He was adopted out to other parents as an infant.  He alleged he maintained a relationship with the decedent throughout her life.  He sued the city and its officers under 42 U.S.C. section 1983, Title II of the ADA, and Section 504 of the Rehabilitation Act.  He asserted two section 1983 claims on his own behalf:  a Fourteenth Amendment claim for loss of familial relationship, and a related Monell claim.  He asserted a Fourth Amendment claim and the ADA and Rehabilitation Act claims on behalf of the decedent.  The complaint named "Doe 1" as the representative of the decedent's estate.  The district court concluded that the plaintiff had no standing, and dismissed the complaint without leave to amend.

The 9th Circuit held that under 42 U.S.C. section 1988(a), which borrows state law to fill gaps in federal law where it is not inconsistent with federal law, California's survival statute applies to section 1983 actions.  Because the plaintiff was neither a successor in interest to the decedent nor a personal representative of his estate, he had no standing to bring claims on behalf of the decedent's estate.  Application is not inconsistent with section 1983 law, particularly since a claim could have been brought by a personal representative if one had been appointed during the statute of limitations.  Section 1988(a) does not apply to the ADA or Rehabilitation Act.  Instead, the uniform law concerning the survival of federal claims applies.  Under that law, an individual with no legal relationship to the decedent, such as the plaintiff, cannot bring survival claims.  An adopted-out child does not have a sufficient relationship with a biological parent to bring a Fourteenth Amendment claim for deprivation of a familial relationship with the parent.  The district court did not abuse its discretion in declining leave to amend so that the plaintiff could seek appointment as personal representative and replace Doe 1 as the representative plaintiff.  Such an amendment would bring in a new party, and the party's claim would not relate back to the original filing of the complaint.  The statute of limitations had run by the time the motion to dismiss was heard.

Judge Wardlaw concurred in the result, but advised that in future cases different parent-child relationships i might be treated differently.