Government Liability Update

Section 364 Notice of Intent to Sue Does Not Toll Claim or Late-Claim Application Deadlines

In Last Frontier Healthcare District v. Superior Court (Harper), published March 26, 2019, the Third District Court of Appeal issued a writ reversing a trial court order granting a Government Code section 946.6 petition for late claim relief.  The plaintiff had surgery on February 17, 2017 at the Modoc Medical Center.  She alleges the surgery was negligent.  On January 31, 2018, Harper served on the medical center and the surgeon a Code of Civil Procedure section 364 notice of intent to commence a malpractice action.  The defendant healthcare district, which did business as the medical center, is a public entity.  It treated the 364 notice as a governmental claim.  ON March 16, 2018, it rejected the "claim" as untimely.  On April 6, 2018, the plaintiff submitted to the medical center an application for leave to present a late claim.  The application stated the cause of action accrued February 17, 2017.  The district denied the application as untimely.  The plaintiff then petitioned the court for relief under section 946.6.  The petition also alleged the cause of action accrued February 17, 2017.  The trial court granted the petition.  The court stated that it assumed the accrual date was the date of surgery. The court reasoned that the plaintiff's one-year deadline to apply for late-claim relief under Government Code section 911.4 was tolled by the 364 notice.

The Court of Appeal held that the trial court erred.  In Woods v. Young (1991) 53 Cal.3d 315, the California Supreme Court held that sending a notice of intent under section 364 tolled the statute of limitations for commencing an action.  But the government claim presentation deadline and the deadline for seeking leave to present a late claim are not statutes of limitation, and do not set forth the deadline for commencing an action.  The tolling set forth in Woods does not apply to the plaintiff's late-claim application.  Because filing a late-claim application with the entity within a year of accrual is a jurisdictional prerequisite to a Government Code section 946.6 petition, the trial court had no jurisdiction to grant the plaintiff relief.

The appellate court also rejected the plaintiff's argument that the trial court nevertheless had jurisdiction to grant the application, because the district did not establish that her application was presented more than a year after accrual.  The plaintiff, as the party seeking relief under the petition, had the burden of raising an issue on the date of accrual.  She conceded in her application and petition that her cause of action accrued on the date of surgery.

Because the Law Does Not Clearly Establish That Retaining Property Lawfully Seized under Search Warrant Violates Constitution, Officers Accused of Retention Entitled to Qualified Immunity

In Jessop v. City of Fresno, published March 20, 2019, the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendant police officers.  As part of an investigation into illegal gambling machines, the officers obtained a search warrant for seizure of money and property related to the machines.  The officers executed the warrant and seized money and property from the plaintiffs' properties.  The officers provided the plaintiffs with an inventory of items seized.  The plaintiffs contended that cash and rare coins seized were not reflected on the inventory sheet.  The  officers denied any difference. The plaintiffs sued the officers under 42 U.S.C. § 1983, alleging violation of their rights under the Fourth Amendment and their substantive due process rights under the Fourteenth Amendment.  The district court granted the officers summary judgment based on qualified immunity.

The 9th Circuit agreed that the officers were entitled to qualified immunity.  The Ninth Circuit has not addressed whether alleged theft of property lawfully seized under a search warrant violates the Fourth or Fourteenth Amendment.  The circuits are split on the issue.  The absence of any cases of controlling authority or a consensus of cases of persuasive authority on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. The court did not reach the issue of whether the alleged misconduct did violate the Fourth or Fourteenth Amendment.

***Update:  On September 4, 2019, the 9th Circuit withdrew its opinion in Jessop and issued an amended opinion.  The amended opinion took out the reasoning concerning the holdings in different circuits, and instead relied on the absence of binding authority establishing a Fourth or Fourteenth Amendment violation in 2013.  In a concurring opinion, Judge Smith (who also wrote the majority opinion) opined that even post-incident 9th Circuit law did not establish that the alleged theft would violate the Fourth Amendment.

(Pollak, Vida & Barer represented the officers on appeal.)

Education Code Section Apportioning Liability for Use of School Grounds Does Not Abrogate Rules for Determining Dangerous Condition of Public Property

In Grossman v. Santa Monica-Malibu Unified School District, published March 25, 2019, the Second District Court of Appeal, Division 7 affirmed summary judgment granted to the defendant school district.  The school district permitted a school booster group and the PTA to hold a carnival fundraiser on a school's grounds.  During the carnival, an inflatable slide partially deflated and began to tip over while the plaintiff was on it, throwing the plaintiff to the concrete below.  The plaintiff alleged that the slide was improperly set up on the grass infield next to concrete, and that it was not tethered to the ground.  He alleged that the slide was a dangerous condition of property, and that the district knew or should have known that the slide was not set up, secured, or operated properly.  It was undisputed that the district did not own, operate, or set up the slide.  

The appellate court rejected the plaintiff's argument that Education Code section 38184 rendered the district liable for the plaintiff's injuries.  Subdivision (i)(1) of the statute apportions liability between  school districts and nonprofit entities using the school facilities or grounds.  Under the statute, a district is liable for an injury resulting from the negligence of the school district in the ownership and maintenance of the school facilities or grounds.  An entity using school facilities or grounds under this section is liable for an injury resulting from the negligence of that entity during the use of the school facilities or grounds.  Subdivision (i)(2), however, provides that the statute does not limit or affect the immunity or liability of a school district under the Government Claims Act for an injury caused by a dangerous condition of public property.  Based on this language, and the Education Code section's legislative history, section 38184 does not affect Government Code section 835's limitations on public entity liability for property conditions.  Under section 835, the district was not liable for the slide.  The slide was not district property, it was not operated by the district,  the conditions the plaintiff complained about did not result from the acts or omissions of district employees, and there was no evidence district employees had actual or constructive notice of the slide.

Sheriff Entitled to Discretionary Immunity for Enacting Policy of Not Informing ICE of Undocumented Alien Releases

In Steinle v. City and County of San Francisco, published March 25, 2019, the 9th Circuit affirmed dismissal of state law negligence claims against the defendant municipality.  The county sheriff informed the federal government that his department would not honor Immigration and Customs Enforcement detainer requests (to detain released prisoners for ICE) or notify ICE of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal.  The sheriff then issued a memo establishing protocols and parameters for the department's communications with ICE.  The memo changed the longstanding practice of freely providing information to ICE regarding undocumented aliens in custody.  After serving federal time for drug offenses, an undocumented alien was released to the sheriff's custody to face felony charges for selling drugs.  The charges against him were dropped the next day.  ICE sent the sheriff's department a detainer request asking to be notified 48 hours before the alien's release and that the sheriff's department hold the alien until ICE could take custody of him.  The sheriff's department released the alien without notifying ICE.  Later, the alien shot and killed plaintiffs' decedent.  The plaintiffs sued the municipality for negligence in issuing the policy.  The district court granted the municipality's motion to dismiss the negligence claim.

The 9th Circuit panel unanimously held that the municipality was entitled to discretionary immunity under Government Code sections 820.2 and 815.2(b).  The memo was the sort of policy decision that is immunized by section 820.2.  The sheriff actually exercised his discretion in issuing the policy.  Further, the law gave the sheriff discretion to issue the policy.  Under Government Code section 26605, the sheriff had the authority to keep the jail and the prisoners in it.  8 U.S.C. sections 1373(a) and 1644, which prohibit local restrictions on sending information regarding the immigration status of individuals to the INS, did not deprive the sheriff of discretion to enact the policy; despite legislative history to the contrary, nothing in the statutes' language required sharing information about the release of prisoners to the ICE.  The federal government's control over immigration matters did not require the sheriff to provide ICE with the release date.  The court rejected the argument that issuing the policy was an act of legislation outside the sheriff's discretion.  It also rejected the argument that the sheriff violated the California Public Records Act by not sharing the information.  The detainer request was not a CPRA request;  the CPRA did not require the sheriff to create a record; and at the time the detainer request was made, there was no record of a release that had not happened yet.  The court also rejected arguments that the policy conflicted with California or local laws.  A concurring judge opined that liability for the prisoner's release was barred by Government Code sections 845.8 (immunity for paroling or releasing a prisoner) and 846 (immunity for failure to retain a person in custody).

Federal Claims Challenging Shutdown of Motel Subject to Younger Absentention Based on State Court Nuisance Action, but Damages Claim for Fourth Amendment Violation Is Not

In Herrera v. City of Palmdale, published March 20, 2019, the 9th Circuit affirmed in part and reversed in part a district court order dismissing declaratory and injunctive relief claims and staying damages claims in a 42 U.S.C. section 1983 lawsuit.  The city obtained an inspection warrant of the plaintiffs' motel to search for suspected code violations.  The plaintiffs alleged that the city violated the Fourth Amendment in carrying out the warrant.  The city then issued a notice and order to repair and abate and ordered the plaintiffs and their tenants to vacate the motel. Two days later the governmental defendants closed the motel and evicted the plaintiffs and tenants.  The plaintiffs sued the governmental defendants in federal court.  Almost simultaneously, the city filed a nuisance complaint against one of the plaintiffs and the motel, seeking declaratory and injunctive relief including declaring the motel a nuisance and putting the motel into receivership.  The district court concluded that Younger abstention applied.

The 9th Circuit agreed that Younger abstention applied to the plaintiffs' causes of action for injunctive relief, declaratory relief, and damages for alleged violation First, Fifth, and Fourteenth Amendments and the Contract Clause, arising out of the closing of the hotel and the orders to repair and abate, were subject to Younger abstention, because success on those claims in the federal action would interfere with the state court nuisance action; and because all of the elements of Younger abstention were satisfied.  But the plaintiffs' Fourth Amendment damages claims for the carrying out of the inspection warrant were not subject to abstention.  Success on those claims would not interfere with the state court action.

School District Did Not Infringe Student's First Amendment or Substantive Due Process Rights by Expelling Him in Response to Private Journal Entry Discussing School Violence

In McNeil v. Sherwood School District, published March 14, 2019, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 case brought by a high school student and his parents.  The student wrote in his personal journal a hit list of students who "must die."  His mother discovered the journal in his room.  She made copies, and sought guidance from a therapist.  The therapist, believing the information triggered his duties as a mandatory reporter, contacted the police.  The police searched the house and confiscated a rifle and ammunition, but found nothing to indicate the student was planning to follow through with the list.  The police did not charge the student.  The police informed the school district.  As required by law, the district informed the parents of students on the list of the list, without identifying the author.  After media inquiries and social media accounts displaying the student's photo, the district informed all parents.  Parents transferred students out of the district, while others had their children skip school.  After a hearing, the district expelled the student for one year for making the list and disrupting the school.  The student sued for violation of his First Amendment rights.  The parents sued for violation of their due process right to educational venue choice.

The 9th Circuit ruled that the district had not violated the student's First Amendment rights.  When determining whether a school’s regulation of a student’s off-campus speech is constitutional, a court must consider all of the relevant circumstances.  The student's lack of intent to communicate the speech to any third party--such as when the student writes in a personal journal--is a relevant consideration, but it is not dispositive.  Here, the lack of intent to communicate the threat was offset by the fact his speech created an identifiable, credible threat of school violence.  He lived close to campus, and had weapons and ammunition.  The speech bore a significant nexus to the school.  The school district could therefore take disciplinary action.  Because his continued presence at campus would cause disruption, the discipline imposed was reasonable and not punitive.  The court also rejected the due process challenge to the expulsion.  That right entitled the parents to enroll the student at the high school.  Once there, the school had the power to administer discipline.  That included expelling the student from campus and supplying alternative, online instruction of him.

The "Committee Exception" to the Brown Act Does Not Apply to Special Meetings

In Preven v. City of Los Angeles, published March 4, 2019, the Second District Court of Appeal, Division 1 revsrsed a trial court order dismissing after demurrer a writ petition and declaratory relief action brought to enforce the Brown Act.  During the public comment portion of an open committee meeting concerning a proposed real estate development near the petitioner's residence, the petitioner made a comment.  The committee, which consisted of five members of the fifteen-member city council, voted to make a report and recommendation to the full council.  The next day, a special meeting of the city council was held to decide whether to approve the committee's recommendation on the development.  The petitioner attended the meeting, and requested the opportunity to comment on the development.  His request was denied on the ground that he had the opportunity to comment on the agenda item at the committee meeting.  The trial court sustained the city's demurrer on the ground that the "committee exception" applies to both regular and special meetings.  The "committee exception" provides that a legislative body does not need to provide an opportunity for public comment at a regular meeting on any item that has already been considered by a committee made up exclusively of members of the body wherein all interested members of the public were permitted to comment on the item before or during the committee's consideration of the item.

The appellate court ruled that the trial court had misinterpreted the Brown Act.  Government Code section 54954.3(a)'s plain language applies the committee exception to regular meetings, and not special meetings.  The statute requires public comment on any item described in the notice for the meeting before or during consideration of the item.  The city argued that the petitioner was permitted to address the item at the committee meeting, which was "before" the full council considered the item. The appellate court reviewed the legislative history of the statute, and concluded that the "before" term concerns timing of comments within a particular meeting.  It does not restrict comments based on a prior distinct meeting.