Government Liability Update

Sidewalk Differential of One Inch or Less Was Trivial as a Matter of Law

In Huckey v. City of Temecula, published July 26, 2019, the Fourth District Court of Appeal, Division 2 affirmed a grant of summary judgment in favor of the defendant city.  On a December afternoon, the plaintiff, carrying a real estate sign in each hand, tripped on a differential between sidewalk panels and fell.  He sued the city, alleging the sidewalk was a dangerous condition of public property.  The city moved for summary judgment.  It asserted that the sidewalk differential was a trivial defect under Government Code section 830.2.  The trial court agreed.

The appellate court held that the city carried its prima facie burden on summary judgment of establishing the differential was trivial.  It submitted undisputed expert testimony of the measurement of the differential at the time of the fall.  The appellate court ruled the trial court properly admitted the expert's testimony of where on the sidewalk a pedestrian would generally step, in the absence of evidence indicating the plaintiff stepped elsewhere.  Further, the sidewalk panels were not jagged or broken; there was no evidence anyone else had tripped and fallen at the same site beforehand; and there was no evidence showing that at the time of the accident there were shadows, debris, leaves, or other factors that prevented the plaintiff from seeing the defect.  Based on the measurement of the defect, in light of the other evidence, the defect was evident to pedestrians, and posed only a trivial risk of injury to users with due care.

Officers Entitled to Qualified Immunity for Allegedly Exceeding Scope of Permission to Enter Home by Damaging Home

In West v. City of Caldwell, published July 25, 2019, a divided panel of the 9th Circuit reversed denial of summary judgment to a police officer based on qualified immunity. The police received a 911 call from the plaintiff's grandmother, reporting that the plaintiff's former boyfriend was in the plaintiff's house, that the former boyfriend might be threatening the plaintiff with a BB gun; that he might be high; and that the plaintiff's children were also in the house.  The police knew the former boyfriend was a gang member with felony warrants for violent crimes.  Four officers, including the defendant, went to the house, and received no reply when they knocked.  The defendant noticed the plaintiff walking down the sidewalk.  The defendant asked the plaintiff if the former boyfriend was in the house.  She said he might be.  The officer told the plaintiff that if the former boyfriend was in the house and she did not tell the police, she could get into trouble.  She told the defendant the boyfriend was in the house, although she was not sure if he was.  The defendant officer walked away to speak with other officers.  About 45 seconds later, the officer asked the plaintiff permission to enter the house and apprehend the boyfriend.  She nodded affirmatively, and gave the officer her key to the house.  She then called a friend who gave her a ride away from the house.  After repeatedly making announcements for the boyfriend to exit, the officers shot tear gas into the house.  They entered and searched the house, but did not find the boyfriend.  The plaintiff and her children were unable to live in the house for two months due to the tear gas damage and broken window from the search.  The plaintiff sued for unreasonable search and seizure and conversion.

The majority ruled that the defendant officer was entitled to qualified immunity as to the search and seizure counts.  The court assumed that the plaintiff's consent to enter was coerced; that the use of tear gas exceeded the scope of the permission; and that the search was unreasonable.  Nevertheless, no precedent clearly established that under the circumstances--including the passage of time between the alleged threat to the plaintiff and the consent, the fact that the plaintiff felt free to leave, and the potential danger posed by the felon inside the house--the officers' actions were unlawful.  The dissenting judge opined that the law had clearly established that the scope of consent did not include shooting tear gas into the house.

Warrantless Seizure of Firearms in Household of Person Detained for 72-Hour Observation Did Not Violate Fourth Amendment; Second Amendment Argument Barred by Issue Preclusion

In Rodriguez v. City of San Jose, published July 23, 2019, the 9th Circuit affirmed summary judgment for the defendant city, its police department, and a police officer in a lawsuit brought under 42 U.S.C. section 1983.  Officers responded to the plaintiff's 911 call for a welfare check on her husband.  The husband was ranting, mentioned shooting up schools, and stated he had a gun safe full of guns.  The officers detained the husband under Welfare & Institutions Code section 5150 for 72 hours observation. After the husband was removed from the house, the plaintiff confirmed that there were firearms in the house.  The officers found 12 firearms in the house--one registered to the plaintiff alone, the rest unregistered or registered to the husband.  The plaintiff objected to the removal of her personal handgun.  The officers confiscated all of the firearms.  The husband was evaluated at the hospital, admitted, and released a week later.  Later, the city filed a petition for forfeiture of the firearms.  The plaintiff intervened, asserting personal ownership of her handgun and community ownership of the others.   She asserted her Second Amendment right to keep and bear arms, since she was not prohibited from possessing or owning guns.  The court granted the city's petition.  The state court of appeal affirmed that the seizure did not violate the plaintiff's Second Amendment rights.  After the decision, the plaintiff changed the registration and ownership so that all the guns were in her name only, and obtained gun release clearances from the state department of justice.  The city declined her request to return the guns.  She then brought this lawsuit, joined by two gunowners' rights organizations.  She asserted violations of her Second Amendment and Fourth Amendment rights.

The 9th Circuit affirmed the district court's decision that the warrantless seizure of the firearms did not violate the Fourth Amendment. The public health and safety protection exception to the warrant requirement applied.  A seizure of a firearm in the possession or control of a person who has been detained because of an acute mental health episode responds to an immediate threat to community safety.  When asking whether the seizure falls within an exception to the warrant requirement, three factors must be balanced, based on all the facts available to an objectively reasonable officer:  The public safety interest; the urgency of that interest; and the individual property, liberty, and privacy interests.  Here, the seizure of the guns from the home affected a serious private interest in the personal property kept in the home.  But because the officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and send him for evaluation; the individual had threatened to use the firearms; and the officers did not know whether the hospital would detain the individual or keep him detained long enough to permit the officers to seek a warrant, the urgency of a significant public safety interest was sufficient to outweigh the significant property interest.

The 9th Circuit also concluded that the Second Amendment claim was precluded by the final decision of the state court, in which the plaintiff's Second Amendment rights were litigated.  The addition of the advocacy groups as plaintiffs did not change the issue preclusion analysis, because they lacked institutional standing.  They failed to show that the issue of whether a single gun owner's firearms should be returned either impeded their ability to carry out their mission or required them to divert substantial resources away from the organizations' preferred uses.

Foster Child Failed to Prove That County's Alleged Failure to Comply with Mandatory Duties Caused Her Injury by Third Party

In Doe v. Dept. of Children & Family Services, published July 17, 2019, the Second District Court of Appeal, Division 8, affirmed nonsuit in favor of the defendant county.  While in a foster placement with a foster mother, the plaintiff, then 17, began a sexual relationship with an adult son who lived at the residence, and became pregnant with his child.  She kept the relationship secret from her social workers.  She told her social worker the placement was the best she had ever had, and lied about the identity of the father of her baby.  While the foster mother was out of town, she asked another adult son to watch the plaintiff.  He took her to his house and raped her.  The plaintiff kept the rape secret for four months, because the rapist told her that his mother would lose her foster license and the father of the plaintiff's baby (the rapist's brother) would get into trouble.  When she revealed that the rape had occurred, the county immediately removed her from placement.  The plaintiff alleged the county was liable under Government Code section 815.6 for violating mandatory statutory or regulatory duties to visit her three times in the first 30 days of her placement, visit her monthly (the social worker missed one monthly visit), and report her statutory rape despite knowing she was pregnant by a man who was over 18.

The appellate court ruled that the trial court properly granted the county nonsuit.  The plaintiff failed to present evidence that the alleged mandatory duty violations caused her harm.  Her theory that the county would have discovered the adult brothers at the residence--the one with whom she had a relationship and the one who raped her--if it had visited her more often was speculation, because she actively concealed her relationship with one brother and her rape by the other.  Failure to report the pregnancy did not cause the plaintiff harm, because the statutory rape that had resulted in the pregnancy had already happened, and the plaintiff failed to present evidence that the man with whom she had the relationship continued to pursue her after the pregnancy was discovered.

Complaint Alleging Improper Solitary Confinement of Mentally Ill Inmates Stated Claim under Eighth Amendment

In Disability Rights Montana, Inc. v. Batista, published July 19, 2019, the 9th Circuit reversed the dismissal of a 42 U.S.C. section 1983 lawsuit at the pleading stage.  An organization tasked by Congress with protecting the rights of mentally ill persons filed suit alleging Montana prison officials violated the Eighth Amendment through policies and practices of placing mentally ill prisoners in longterm solitary confinement and failing to properly diagnose and medicate them.  The district court granted a motion to dismiss the action.

The 9th Circuit ruled that the complaint adequately pleaded a claim under the Eighth Amendment.  Where a plaintiff alleges systemwide deficiencies that expose inmates in a prison's custody to a substantial risk of serious harm, courts assess the claim through a two-prong inquiry.  The first, objective prong requires that the plaintiff show that the prison's conditions pose a substantial risk of serious harm.  The second, subjective prong requires a showing that a prison official was deliberately indifferent by being aware of the facts from which an inference can be drawn that a substantial risk of serious harm exists, and also drawing the inference.  The complaint satisfied the first prong by alleging patterns of prisoners being denied diagnosis and medication, and policies placing mentally ill prisoners in solitary for weeks and months at a time without significant mental health care.  It also satisfied the prong by providing multiple examples of the defendants' policies causing prisoners' mental health to worsen, resulting in self-harm or suicide.  The complaint satisfied the second prong by alleging that the prison system had been sued twice  complaining about factually similar problems; that the prison sought certification from a national body whose mental health care standards would have put them on notice of the problems, that the prison received regular grievances from prisoners about the complaints, and that the organization had repeatedly informed prison officials of the deficiencies in treatment.

Government Code Statutory Immunities Are Not Jurisdictional; They Must Be Pleaded

In Quigley v. Garden Valley Fire Protection District, published July 15, 2019, the California Supreme Court reversed the lower appellate court's decision affirming a nonsuit.  The plaintiff was a firefighter who was ran over by a service truck while she was sleeping on the ground at a base camp. She alleged that the base camp was a dangerous condition of public property, because the sleeping area was not roped off and warning signs were not posted. The defendant fire district's answer asserted multiple affirmative defenses, including 11 asserting 17 specific immunities under the Government Claims Act.  One affirmative defense asserted all of the defenses and rights granted to the defendants under the entire Government Claims Act.  The answer did not specifically allege Government Code section 850.4, the immunity for the condition of firefighting equipment.  At trial, after the plaintiff's opening statement, the district moved for nonsuit based on section 850.4's immunity.  The plaintiff objected that the district had waived the immunity by not pleading it.  The trial court ruled that the immunity was jurisdictional, and so could not be waived.  It granted the nonsuit.  The appellate court affirmed.

The Supreme Court unanimously disagreed.  The question is whether the immunity is "jurisdictional" in the sense that it deprives the court of jurisdiction to hear the matter.  Such jurisdictional issues can be raised at any time, because waiver cannot give the court jurisdiction. Courts presume that statutes do not limit fundamental jurisdiction absent a clear indication of legislative intent to do so.  The court examined the Government Claims Act's statutes, and found no legislative intent that they be jurisdictional in that sense.  Instead, they are in the nature of affirmative defenses, which must be pleaded or forfeited.  The court of appeal cases that have deemed them jurisdictional do not support that conclusion.  The Government Code immunities limit the substantive liability of public liabilities, rather than the power of the courts to hear cases involving public entities.  The latter question was settled by the passage of Government Code section 945, which gives public entities the right to sue and be sued.  The Supreme Court disapproved court of appeal cases that deemed the immunities jurisdictional.  

The Supreme Court remanded to the court of appeal the question of whether the affirmative defense that encompassed the entire Government Claims Act was sufficient to plead section 850.4.  If that court concludes the affirmative defense is insufficient, the Supreme Court continued, the matter should be remanded to the trial court to determine whether it should exercise its discretion to amend the answer and allow the affirmative defense to be raised at trial.

[Pollak, Vida & Barer represented League of California Cities, California State Association of Counties, California Association of Joint Powers Authorities, California Special Districts Association and International Municipal Lawyers Association as Amici Curiae on behalf of Defendants and Respondents.]

Issues of Fact Defeat Summary Judgment for Officer Shooting Suspected Knife Wielder Without Warning or Identifying Himself

In Nehad v. Browder, published July 11, 2019, the 9th Circuit affirmed in part and reversed in part summary judgment granted in favor of an officer and his employing city.  A store worker had called 911 because a man showed him an unsheathed knife and acted incoherent.  The dispatcher put out a call that a man was threatening people with a knife.  The defendant officer arrived while the man was walking down an alley from the store to the street.  The officer drove down the alley with his high headlight beams on but without sounding his siren or putting on flashing lights.  The officer exited his vehicle as the man walked toward him.  The officer did not turn on his body camera.  Eyewitnesses differed on whether the officer told the man to drop it.  The officer did not recall identifying himself as a police officer or warning the suspect.  Five seconds after exiting his vehicle, the officer shot the man in the chest, killing him.  Investigators did not find any weapon in the alley, although they found a knife sheath.  When shot, the manwas carrying a blue metallic pen.  The officer initially stated that he did not see any weapons when he shot the man.  Five days later, after meeting with an attorney and viewing surveillance footage, the officer told investigators that the man was "aggressing" the vehicle, walking quickly toward it, and that the officer thought the man had a knife.  The district court ruled the officer's use of force was objectively reasonable, and that the officer was entitled to qualified immunity because the law was not clearly established that using deadly force under the circumstances violated the Fourth Amendment.  It also granted summary judgment on the man's family's Fourteenth Amendment claim, because there was no evidence that the officer acted with an intent to harm unrelated to a law enforcement purpose.  The court also granted summary judgment on all state law claims.

The 9th Circuit affirmed summary judgment on the Fourteenth Amendment claim, because there was no evidence that the officer had used force for any reason but self-defense.  But it concluded that there was a genuine dispute of material fact on whether the officer's use of force was objectively reasonable.  Viewing the facts in the light most favorable to the plaintiffs, there were issues over the officer's credibility, whether the suspect posed a danger to anyone, whether the severity of the crime warranted deadly force, whether the officer gave or the man resisted any commands, the significance of the officer's failure to identify himself or give any warnings, and the availability of less intrusive means to subdue the man.  Further, because the law clearly established that using deadly force under the circumstances here, viewing the facts in the light most favorable to the plaintiffs, violated the Fourth Amendment, the issues of fact prevented summary judgment on the ground of qualified immunity.  There was sufficient evidence of Monell liability to raise a genuine issue of fact on that as well.  The issues of fact defeated summary judgment on the state law causes of action.