Government Liability Update

Administrative Decision in Employee's Termination Precludes First Amendment Retaliation Claim, but Not Labor Code section 1102.5 Claim

In Bahra v. County of San Bernardino, published December 30, 2019, the 9th Circuit affirmed in part and reversed in part a district court's dismissal of a suit against the defendant county and two employees for alleged retaliatory termination.  The employee was fired from county Children and Family Services after informing his superior of database errors.  He was issued a notice of proposed dismissal.  He sought an administrative hearing.  The hearing officer issued a notice of dismissal.  The plaintiff administratively appealed the dismissal.  After an evidentiary hearing, the hearing officer concluded that the plaintiff had not produced evidence of retaliation, and that allegations against him were substantiated.  The county civil  service commission adopted the hearing officer's recommendation and sustained the dismissal order.  The commission advised the plaintiff of his right to seek review of the decision from the trial court via a Code of Civil Procedure section 1094.5 writ petition.  The plaintiff did not seek a writ.  Instead, he sued under 42 U.S.C. section 1983 and Labor Code section 1102.5, alleging he was terminated in retaliation for whistleblowing.  The district court ruled that the administrative decision precluded the plaintiff's claims.

The 9th Circuit reversed the dismissal of the plaintiff's Labor Code section 1102.5 claim.  Federal courts grant the same preclusive effect to state administrative agency decisions that those decisions would receive in state court.  In California, administrative agency decisions typically have preclusive effect, provided that they have a sufficiently judicial character and that the elements of claim or issue preclusion are satisfied.  The exception is where affording preclusive effect would contravene the California legislature's intent.  Taswell v. Regents of UC (2018) 23 Cal.App.5th 343 ruled that the exception applied to claims for retaliation brought under Labor Code section 1102.5.  The Ninth Circuit concluded that the California Supreme Court would not rule differently, and therefore followed Taswell.  But the 9th Circuit affirmed the dismissal of the § 1983 claim of retaliatory termination in violation of the First Amendment.  The administrative decision, based on an administrative hearing, had a sufficient judicial character for issue preclusion.  The elements of issue preclusion were met.

Using a Chokehold on a Restrained, Non-Resisting Person Violates Clearly-Established Law

In Tuuamalemalo v. Greene, published December 24, 2019, the 9th Circuit affirmed a trial court order denying summary judgment in a 42 U.S.C. section 1983 case on qualified immunity grounds.  In 2014, the plaintiff was involved in a confrontation with police officers.  After five officers took the plaintiff to the ground, the defendant officer put the plaintiff in a lateral vascular neck restraint chokehold.  The plaintiff lost consciousness, and it took several attempts to revive him.  He sued the officers who restrained and used force against him.  The other officers obtained summary judgment based on qualified immunity.  The officer who applied the chokehold was denied summary judgment.

The 9th Circuit agreed with this ruling.  Viewing the facts in the light most favorable to the plaintiff--as the court was required to do when reviewing an order denying summary judgment based on qualified immunity--the plaintiff was restrained and was not resisting when the officer applied the chokehold.  Before 2014, a 2013 case and a 2003 case had held that using a chokehold on a non-resisting, restrained person violated the Fourth Amendment.  Further, a robust consensus of authority from other circuits holds that using a chokehold on a non-resisting person violates the Fourth Amendment.  The law was therefore clearly established in 2014 that use of a chokehold in this specific context violated the Fourth Amendment.

Issues of Fact on Whether Public Raceway Increased Risk to Users Defeats Summary Judgment on Recreational Immunity

In Kim v. County of Monterey, published December 12, 2019, the Sixth District Court of Appeal, in a split decision, reversed summary judgment granted to the defendant county in a lawsuit based on dangerous condition liability.  The county owns a raceway and co-manages it with a vendor.  Professional racing standards require that racetracks maintain flat verges and run-off areas where users whose vehicles that make a mistake, suffer mechanical failure, or strike another vehicle may decelerate or regain control.  Drainage ditches and sandbags are maintained at the racetrack during the rainy season to prevent erosion.  They are removed during professional racing events.  The vendor will remove the sandbags if a renter requests it.  On the day of the accident, a company hosted a track day at the racetrack, at which individuals could ride motorcycles and autos at the track at speeds up to 140 miles per hour.  The plaintiff signed a waiver before riding his motorcycle at the track.  None of the users were warned of the sandbags, which were unmarked and the same color as the ground, placed in the safety zones.  The plaintiff ran his motorcycle into a safety zone and hit a sandbag.  The plaintiff alleged causes of action for dangerous condition and gross negligence.  The county moved for summary judgment.  In opposition to summary judgment, the plaintiff presented an expert declaration that placing the sandbags on the track was below the standard of care.

The appellate court majority evaluated the dangerous condition cause of action using negligence principles.  It interpreted the gross negligence cause of action against the county as an attempt to plead around the county's affirmative defense of hazardous recreational use immunity under Government Code section 831.7, which the majority interpreted as a primary assumption of the risk defense.  There was no dispute that the plaintiff was engaged in a hazardous recreational activity.  The court ruled that the county owed a duty of care not to increase the risk inherent in racing on the track, which is essentially what plaintiff was doing in riding around the track at high speed.  The plaintiff adequately alleged in his complaint that the presence of sandbags was not a danger inherent to the sport.  The county did not carry its burden on summary judgment of producing evidence that it was.  The county therefore failed to establish summary judgment based on lack of duty.  The majority then found a triable issue of fact on whether the county breached that duty.  The reasonableness of the steps taken to prevent erosion was an issue of fact.  There was also a triable issue of fact on whether the presence of sandbags was an extreme departure from care that would support a finding of gross negligence.  The paucity of accidents at the raceway did not remove these issues of facts.  While the standards barring sandbags applied to professional racing, not amateur use, a reasonable trier of fact could find the standards relevant to safety standards at the track generally.

A dissenting justice opined that the majority was collapsing the distinction between ordinary and gross negligence; and that in light of the primary assumption of the risk doctrine, the undisputed facts established that the county and vendor were entitled to summary judgment.

Park Path Used for Recreational Purposes Is Subject to Trail Immunity, Regardless of Purpose for Which It Was Designed

In Loeb v. County of San Diego, ordered published December 16, 2019, the Fourth District Court of Appeal, Division 1 affirmed nonsuit for the defendant County in a dangerous condition case.  The plaintiff was injured when she tripped on an uneven concrete pathway in a county park.  The pathway led to a restroom.   The plaintiff was using the path to travel from a barbecue in the park to the restroom.  The county moved for summary judgment on the ground that the path was a recreational trail under Government Code section 831.4.  The trial court found a triable issue of fact on whether the path was designed and used for a recreational purpose, or simply to provide access to the restroom.  The county renewed its motion for summary judgment, adding evidence of photos of people using the path to ride bikes, walk dogs, and run.  The plaintiff disputed whether the photos depicted people using the path for recreational purposes or simply heading to the restrooms.  The trial court again found a triable issue of fact.  At trial, when the parties debated the special verdict forms to be used, the plaintiff stipulated the path was used for recreational purposes.  She maintained that the issue was whether it was designed for a recreational purpose.  The trial court granted the county nonsuit, on the ground that the use established the trail immunity.

The appellate court agreed.  Under the statutory language, trail immunity applies if a trail is used for recreational purposes, or to provide access to recreational purposes.  The purpose for which the trail is designed is not the determinative factor.  Because the paved path in a park was a trail, and the plaintiff stipulated at trial (as she did not do at the summary judgment level) that the trail was used for recreational purposes, the county was entitled to nonsuit.

Pursuit Policy and Training Need Not Set Forth Speed Limits to Provide Immunity

In Riley v. Alameda County Sheriff's Office, published December 17, 2019, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant sheriff's office under Vehicle Code section 17004.7, which immunizes public agencies from liability for collisions involving vehicles pursued by peace officers if the agency adopts and promulgates a written policy on, and provides regular training for, vehicular pursuits.  The plaintiff's motorcycle was struck by a car fleeing sheriff's deputies.  He alleged that the sheriff's office's policy, promulgation of the policy, and training did not meet statutory requirements.

The court ruled that the policy, promulgation, and training met the requirements.  The plaintiff contended that the policy did not meet the requirement to determine factors to be considered by an officer and supervisor in determining speeds throughout a pursuit.  The court ruled that although the policy did not expressly state factors to be considered in determining speeds, it set forth 17 factors to be considered in making pursuit decisions, which included the speeds involved and other factors that would require the consideration of speed.  Similarly, the training included warnings against excessive speeds, and required consideration of factors involving speed.  The law did not require the policy to include numeric speed limits.  The court also rejected the argument that the department's promulgation of the policy did not meet the requirements of ordering that all officers sign off on the policy.  The department promulgated a general order requiring all officers to read the policy in a timely manner and sign off electronically that they had done so.  Eighty percent of officers in the department had done so.

School Whistleblower Statute Did Not Impliedly Repeal School Districts' Statutory Immunity from Punitive Damages

In Visalia Unified School Dist. v. Superior Court (Harlan), published December 17, 2019, the Fifth District Court of Appeal issued a writ reversing a trial court order denying a motion to strike a prayer for punitive damages against the petitioner school district.  The real party in interest, a district employee, sued the district for alleged retaliation in violation of the Reporting by School Employees of Improper Governmental Activities Act (Ed. Code, §§ 44110–44114).  Education Code section 44114, subdivision (c), allows the award of punitive damages against "persons."  Subdivision (d) of that statute defines "persons" to include any state or local government, or any agency or instrumentality of such governments.  The district moved to strike the real party's prayer for punitive damages on the ground that Government Code section 818 immunizes public entities from punitive damages.  The trial court ruled that the Act, which was passed after Government Code section 818, impliedly repealed section 818 in lawsuits under the Act.

The appellate court ruled that the Act did not impliedly repeal section 818.  Implied repeal is disfavored.  It will be found only where there is no rational basis for harmonizing two potentially conflicting statutes and the two statutes cannot operate concurrently.  Section 818 uses the phrase, “Notwithstanding any other provision of law,” which signals a broad application overriding all other code sections except in limited cases.  The phrase precludes finding implied repeal merely because the section conflicts with a later-passed statute on a single subject.  Section 818 can be correlated with the act to provide punitive damages against "persons" except public entities.  The conclusion is supported by the strong public policy underpinnings for section 818.  If the Legislature intended to create an exception to section 818, it would have expressly done so.

In Excessive-Force Case, District Court Erred by Excluding Lay Witness Testimony of Decedent's Past Behavior Consistent with Mental Illness

In Crawford v. City of Bakersfield, published December 16, 2019, the 9th Circuit Court of Appeals reversed a jury verdict for a defendant police officer and his municipal employer.  At a gas station, a decedent pulled a gas nozzle out of a car, poured the gas on the ground around himself (spraying some on a bystander), and set the gasoline on fire.  When the defendant police officer responded, he found the decedent acting erratically toward those present.  The officer approached the decedent so that he could here what the decedent was saying.  The decedent made challenging remarks to the officer.  Without waiting for backup, the officer stopped 20 feet from the decedent and told him to get on the ground.  The decedent moved toward the officer quickly, picked up a horshoe-shaped bike lock, raised it over his head, ignored an order to put it down, and charged the officer.  The officer drew his handgun and shot the decedent.  The district court excluded testimony from the plaintiff, the decedent's mother, of the decedent's conduct consistent with mental illness, and of the treatment the decedent received for mental illness in the past.  The district court reasoned that because the defendant officer did not know of the past behavior, the evidence was irrelevant.

The Court of Appeals ruled that the district court erred.  Because the existence of mental illness is relevant to whether the force used is excessive, the evidence from the plaintiff confirming that the decedent was mentally ill (and not on drugs) was relevant, even if the officer did not know that information at the time of the shooting.  The court also rejected the argument that the plaintiff was providing lay expert testimony.  A lay witness may testify to observed conduct consistent with mental illness, so long as the lay witness does not offer an opinion that the person was indeed mentally ill.  Under the circumstances of the trial--including a closing argument that plaintiff had presented no evidence the decedent was mentally ill--the error was prejudicial.

Search Warrant for Entire Multi-Resident Property Was Not Overbroad; Detention of Elderly Resident During Duration of Search Not Unreasonable

In Blight v. City of Manteca, published December 11, 2019, the 9th Circuit affirmed summary judgment for police officers who obtained and executed a search warrant for a multi-acre wooded property.  The officers received reliable firsthand information from an informant that a suspect was growing and processing marijuana on the property.  The informant explained that one suspect and his family lived in the main house, and that another who helped him lived in the mobile home on the property.  In the opinion of the officer who obtained the warrant, based on his experience, the property resembled those where marijuana was grown, often in residences.  The officer obtained a warrant from a judge and executed it.  The 74-year-old plaintiff lived in the mobile home.  After the officers ordered her to exit the home, they breached the entrance.  The plaintiff initially hid, then exited the home.  Officers told her that if she did not enter the police car she would be handcuffed.  She complied.  The officers drove her to the street for the duration of the search, less than an hour. She was not handcuffed or physically searched.  She sued under 42 U.S.C. section 1983, alleging that the warrant was overbroad and the officers' execution of the warrant and detention of her was improper.

The court of appeals ruled the warrant was not overbroad.  Where multiple residences are on a single property under a single suspect's control, a warrant covering all residences on the property is not overbroad.  The judge had a substantial basis for issuing the warrant, based on the information provided him.  The search is reasonable even if the officers have information that the suspect is not on the property at the time of the search.  The officers had categorical authority to detain the plaintiff during the duration of the search, since she was a resident of the property searched.  The circumstances of the detention were reasonable, despite the plaintiff's age.

Under State-Created Danger Doctrine, Officer May Violate Substantive Due Process By Disparaging Domestic Violence Victim to Abuser, or Praising Abuser While Protecting Him From Arrest; But Officers Entitled to Qualified Immunity

In Martinez v. City of Clovis, published December 4, 2019, the 9th Circuit affirmed summary judgment in favor of defendant police officers in a 42 U.S.C. section 1983 case.  The plaintiff was in a relationship with a police officer.  In response to a domestic abuse call, a defendant officer declined to arrest the suspected abuser, and did not inform the plaintiff of shelter options.  The officer, a co-worker of the suspected abuser, then disclosed to the suspect the contents of the plaintiff's complaint, and asked him what he was doing dating a girl like plaintiff.  After the officer left, the suspect abused the plaintiff again.  On a later domestic violence call, a group of officers believed they had probable cause to arrest the suspected abuser.  A senior officer ordered the other officers not to arrest the suspect, but instead refer the matter to the district attorney.  He remarked that the suspected abuser's family were "good people."  That night, the suspect abused the plaintiff again.  The officer was eventually convicted of violating a protective order. He pleaded guilty to a domestic violence charge.  The plaintiff contended that the officer defendants violated her substantive due process rights under the state-created danger doctrine, by affirmatively placing her at greater risk of abuse.

The court of appeals ruled that the officer defendants did not increase the risk of abuse to the plaintiff by not arresting the suspect, or by failing to advise the plaintiff of all of her options to escape abuse.  Those acts did not increase the danger of abuse that the plaintiff already faced.  But disclosing a confidential report of abuse to the suspected abuser while disparaging the complaining victim did increase the danger, by emboldening the abuser.  Similarly, ordering officers not to arrest the abuser, while praising the abuser, emboldened the abuser and increased the danger.  But the officers were entitled to qualified immunity, because the law did not clearly establish that those acts violated substantive due process.  Although a similar case from the 2nd Circuit found a violation of substantive due process, other circuits disagreed with that case.  Absent binding authority, a consensus of non-binding authority is necessary to clearly establish the law.  The court emphasized that its decision would henceforth clearly establish the law on the subject.

Conflict-of-Interest Statute Did Not Prevent Independent Contractor from Participating in Both Preconstruction Services and Construction

In California Taxpayers Network v. Taber Construction, Inc., published November 27, 2019, the First District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant contractor in a lawsuit brought under Government Code section 1090.  A school district intended to hire a firm to complete a project to modernize the HVAC for multiple schools.  The project would be performed in two stages.  In the first stage, the firm would enter into a preconstruction services agreement to work with district staff, the program manager, and the architect to provide a guaranteed maximum price for the project.  In the second stage, the district would enter into a lease/leaseback agreement with the contractor.  After the contractor entered into the preconstruction services agreement and then the lease/leaseback agreement, the taxpayers group alleged that the contractor had violated section 1090 because its agreements in the first stage precluded it from entering into the contract in the second stage.

The court of appeal ruled that the trial court properly rejected that interpretation of section 1090.  An independent contractor may violate section 1090, but only if it was entrusted with acting on behalf of the government.  For instance, a person who was hired as an officer or employee with the responsibility of contracting on behalf of an entity and then rehired as an independent contractor with the same responsibilities would be subject to section 1090.  But participation in the preconstruction services agreement phase did not preclude the contractor from entering into the lease/leaseback agreement in the second phase.  The contractor was not hired to engage in or advise on public contracting on behalf of the school district.  The district did not hire the contractor to choose a firm to perform the second phase contract; it hired the contractor to perform both phases.  That did not violate section 1090.