Government Liability Update

Simultaneously Mailing Notice and Posting It upon Affected Property Satisfied both Ordinance and Due Process

In Rasooly v. City of Oakley, ordered published November 21, 2018, the First District Court of Appeal, Division 5 affirmed a Code of Civil Procedure section 1094 motion for judgment on a writ petition based on the petitioner's failure to exhaust administrative remedies.  In 2015, the city red tagged a vacant industrial building the petitioner owned.  The petitioner administratively appealed the 2015 notice to the city.  The city rejected the appeal.  The petitioner then petitioned the court for a writ of mandate to set aside the notice.  After settlement negotiations, the city agreed to rescind the 2015 notice, and the petitioner was to do required work by April 2017.  Based on this understanding, the city requested dismissal of the petition.  Despite e-mail correspondence between the city and the petitioner, the petition was not dismissed and the work was not done.  In March 2017, the city issued a new notice that the property be repaired or demolished.  The city both posted the notice on the property, and mailed it to a post office box the county tax rolls listed as the address for petitioner concerning the property.  The mailing was returned undelivered.  In April 2017, after the 20-day period for the administrative appeal of the 2017 notice passed, the city notified the petitioner's attorney of the 2017 notice.  The next day, the attorney filed an amended petition for writ of administrative mandate challenging the 2017 notice.  The petitioner contended that he did not receive actual notice of the 2017 notice, and that the service did not comply with the International Property Maintenance Code, incorporated into the city's municipal code by reference.

The appellate court agreed with the trial court that the petitioner failed to exhaust his administrative remedies by timely administratively appealing the 2017 notice.  It was undisputed that the petitioner did not receive actual notice, because he did not visit the property while the notice was posted and did not collect his mail at the specified address for at least 30 days.  The IMPC provides that notice is to be served personally, mailed by certified or first-class mail to the owner's last known address, or, if the mailed notice is returned undelivered, posting the notice on the property.  The petitioner contended that this provision required the city to first mail the notice, and then post the notice only after receiving it back undelivered.  The appellate court interpreted the provision as providing a hierarchy of preferred means of notice.  It did not forbid simultaneously posting the notice and mailing it.  Otherwise, waiting for the letter to come back undelivered would deprive property owners of the chance to file a timely administrative appeal. The service also did not violate due process.  Due process does not require actual receipt, only a means reasonably calculated to give an interested party actual notice and an opportunity to respond.

If Law Enforcement Agency Induced Family's Detrimental Reliance on Search Efforts, It Owed Duty to Carry Out Search with Due Care, but Did Not Violate the Constitution

In Arista v. County of Riverside, published November 20, 2018, the Fourth District Court of Appeal, Division 2 reversed in part and affirmed in part a trial court decision sustaining a demurrer without leave to amend and dismissing an action against the defendant county.  According to the complaint's allegations, the plaintiffs' decedent set out mountain biking one morning in light clothing.  He intended to return early that afternoon.  In the early evening, the decedent's wife contacted the decedent by cellphone.  The decedent stated that he had been injured in an accident, but was returning home.  He sounded disoriented and confused.  The wife called 911.  The operator instructed her to stay home and wait for law enforcement.  First city police, and then a sheriff's deputy came to the home.  The deputy had the cellphone company ping the decedent's phone.  The location was near the decedent's original destination on the mountain.  The company had personnel working in the area.  The deputy asked the company to have its personnel be vigilant for the decedent's location.  At 10 p.m. a sheriff's lieutenant arrived at the home.  He identified himself as the "Incident Commander" for the case.  He had no search and rescue training.  He allegedly told the deputy that he believed the decedent was having an affair, and questioned why law enforcement was involved.  The lieutenant told the wife that the sheriff's department would start the search in the morning.  When the wife asked the chances of the decedent dying of hypothermia, the lieutenant replied that the decedent was a grown man and could take care of himself.  The department had a team with all-terrain vehicles that could have been dispatched to search for the decedent, but were not.  Deputies with sedan-type vehicles were assigned to watch the trailheads.  The department allegedly told the wife not to initiate any search.  Nevertheless, the family organized itself into a search team and began searching on foot at 3:45 a.m.  In the morning, a volunteer who worked with the sheriff's department searched for the decedent, and found his body on a fire access road.  He had died of hypothermia.

The appellate court held that based on those allegations, the complaint stated causes of action against the county for wrongful death, negligence, and negligent infliction of emotional distress.  Police officers may owe a duty to provide affirmative assistance if they enter into a special relationship with a member of the public.  A special relationship may be found when the state, through its agents, voluntarily assumes a protective duty toward a member of the public and undertakes actions on behalf of that member, inducing reliance.  One who voluntarily comes to the aid of another is under a duty of due care in performance, and may be held liable in negligence if failure to exercise due care increases the risk to the person or if reliance on the undertaking causes harm.  The court concluded that the sheriff's department's alleged actions showed that they undertook the responsibility of rescuing the decedent.  They induced reliance on their actions, as shown by the allegation that the family did not undertake its own rescue efforts until the lieutenant told the wife the department would not begin searching until morning.   The appellate court affirmed, however, the demurrer as to the Monell cause of action under 42 U.S.C. section 1983.  Monell liability requires facts showing deliberate indifference.  The complaint did not plead any such facts.  Because the plaintiffs did not show how they would amend the complaint to show deliberate indifference, the trial court properly denied leave to amend as to that cause of action. 

Although Issues of Fact on Use of Force Defeat Summary Judgment on Qualified Immunity, Officer Entitled to Qualified Immunity on Issues Where Facts Are Not Genuinely Disputed

In Foster v. Hellawell, published November 20, 2018, a divided Ninth Circuit panel affirmed in part and reversed in part a district court order denying a police officer summary judgment based on qualified immunity.  A 911 call was received that a man had displayed a gun and was walking toward stores that had previously been robbed.  The defendant officer arrived at the scene and saw plaintiffs' decedent, who matched the description and was near one of the stores.  The officer identified himself and asked to see the decedent's hands.  The officer was unsure whether he had his gun drawn.  The decedent ran.  The officer gave chase.  During the pursuit, the officer fired at the decedent, fatally wounding him.  The survivors sued the officer under 42 U.S.C. § 1983 for violating the Fourth and Fourteenth Amendment. 

The Ninth Circuit majority affirmed denial of summary judgment on the claim of excessive force under the Fourth Amendment and the claim for denial of substantive due process under the Fourteenth Amendment.  The evidence created a genuine dispute of fact on whether the decedent had or displayed a gun while he ran. It is clearly established that shooting a fleeing suspect in the back violates the Fourth Amendment.  If the factual disputes on whether the suspect had a gun are resolved against the officer, the officer would not be entitled to qualified immunity.  The court ruled it lacked jurisdiction to adjudicate the question of whether the evidence was reliable enough to support the district court's conclusion that a genuine dispute existed.  On the question of whether the officer had reasonable suspicion to make an investigative stop of the decedent, however, the court found no genuine dispute of fact and that the officer was entitled to qualified immunity.  The 911 caller's information, as corroborated by the officer's observations, had sufficient indicia of reliability to support qualified immunity for the officer's conclusion of reasonable suspicion.  The court also found that the officer was entitled to qualified immunity for approaching the decedent with gun drawn (but not pointed at the suspect).  The law did not clearly establish that doing so constituted excessive force.

 A dissenting judge opined that, viewing the facts in the light most favorable to the plaintiffs, there was no evidence that the officer violated the Fourteenth Amendment by using force for a reason other than a legitimate police purpose.

Trial Court Did Not Abuse Discretion in Limiting Mini-Openings and Declining Challenges for Cause in Student Supervision Case

In Alcazar v. Los Angeles Unified School Dist., ordered published November 15, 2018, the Second District Court of Appeal, Division 1 affirmed judgment for the defendant school district after a jury trial.  The plaintiff was a middle-school student with learning disabilities who fell and was injured after swinging on a tree branch that broke.  The plaintiff alleged the school failed to properly supervise him.  During voir dire, the trial court initially allowed the parties to give mini opening statements.  During questioning of the first panel, some jurors expressed pre-judgment of the case based on the details given during the mini-openings.  The court then ordered that for subsequent panels the parties could not give mini-openings; instead, the court would read the statement of the case to which the parties had agreed.  The plaintiff's counsel was permitted to give several details of the case in his questioning of jurors.  Two jurors expressed uncertainty on whether they could be fair, but ultimately said they could.  The court declined the plaintiff's challenge to the jurors for cause.  The jury entered a defense verdict.  The plaintiff alleged that the court had exceeded its discretion under Code of Civil Procedure section 222.5 in limiting the use of mini-openings; and that the court abused its discretion in denying the challenges for cause.

The appellate court affirmed the trial court's exercise of its discretion.  Section 222.5, as it existed at the time of the trial, preserved the trial court's discretion to disallow mini-openings depending on the circumstances.  The circumstances here included jurors stating they had prejudged the case based on the mini-openings given.  The court has discretion to deny a challenge for cause, unless the juror expresses views indicative of an unalterable preference in favor of one side.  Since both jurors here stated they could keep an open mind, the court had discretion to deny the challenge.

Officer Violated Fourth Amendment by Entering Home under Ruse for Administrative Inspection, but Is Entitled to Qualified Immunity

In Whalen v. McMullen, published October 30, 2018, the 9th Circuit affirmed summary judgment in favor of a Washington State Patrol detective in a suit alleging the officer conducted a search of the plaintiff's house that violated the Fourth Amendment.  The plaintiff was receiving Social Security Disability benefits.  A task force that investigates potential social security fraud, investigated the plaintiff.  The task force designates investigations as either civil, criminal, or administrative.  As was common for administrative investigations, the defendant investigating detective did not obtain a search warrant, and used a ruse to communicate with the plaintiff:  the officer stated he was conducting a law enforcement investigation of identity theft.  The plaintiff spoke with the officer in front of her house, and then invited him inside.  The officer wore two hidden video cameras.  The officer spoke with the plaintiff for an hour, then left.  Based on the information the officer provided, the plaintiff's benefits were denied in part.  She was not subject to any civil or criminal action.  The plaintiff alleged that the portion of the detective's encounter with her inside her home violated the Fourth Amendment.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit ruled that the entry into the home, without a warrant, with hidden video cameras, and under cover of a ruse, violated the Fourth Amendment as an improper warrantless search.  It distinguished cases where, as a condition of receiving benefits, people had to allow warrantless entry into their homes, because in those cases the grounds for the entry are transparent.  Here, because the investigator identified himself as a law enforcement officer, the investigation was under a ruse and the plaintiff did not know about the video cameras, the investigator gained entry by invoking the individual's trust in her government, and then betraying it.  But because no precedent clearly established that the detective's actions would violate the Fourth Amendment, the detective was entitled to qualified immunity.