Government Liability Update

Entity Could Not Rely on Stated Date of Injury in Failing to Reject Defamation Claim as Untimely; Prosecutorial Immunity Does Not Apply to Ministerial Act of Recording; Monell Liability for Failure to Train Need Not Be Pleaded with Particularity

In Roger v. County of Riverside, published January 22, 2020, the Fourth District Court of Appeal, Division 2 reversed a judgment for the defendant county entered on demurrer and summary judgment.  The plaintiff was a physician whom the court held in contempt when he refused to produce documents a court-appointed receiver requested to be produced in a civil case.  Unknown to the plaintiff, when he was booked, the county sheriff's department entered the charge into the Jail Information Management System as a felony, even though it was a civil violation; and reported the felony charge to the California Department of Justice.  When he was released from jail, he learned from a hospital with which he had staff privileges that he had failed to report to them a felony arrest.  He believed his arrest was for a civil charge, and that the letter was a mistake.  Six months after arrest, the plaintiff's girlfriend asked the jail to remove the felony designations.  She was told the designation would disappear shortly.  A month later, a group health practice terminated its contract with the plaintiff.  Four months after this event, the plaintiff presented a claim for damages to the county.  The claim form asked when the damage or injury occurred.  The plaintiff listed the date his contract was terminated, "and ongoing."  Among the documents he attached was the printout from JIMS reflecting the booking date and the date the charge was listed as a felony.  The county sent a summary notice that it had rejected his claim.  The defendants later changed the felony listing to a misdemeanor, which was also incorrect.  The plaintiff sued the county and sheriff's deparatment for defamation, writ of mandamus, declaratory relief, and a 42 U.S.C. section 1983 claim for failure to train.  The writ of mandate he sought was to prohibit the defendants from designating civil contempt as criminal charges rather than civil; and a declaration that the defendants had falsely reported that he had been charged with a felony and later changed it to a misdemeanor.  The trial court sustained a demurrer to  the section 1983 claims on the ground that the plaintiff had inadequately pleaded failure to train.  It later granted summary judgment as to the defamation claim, on the ground that the plaintiff's claim was untimely.  The plaintiff moved for summary judgment on the writ and declaratory relief claims.  The court denied the motion on the ground the claims were moot.  The parties stipulated to dismiss the remaining claims with prejudice, and the plaintiff appealed.

The appellate court ruled that the trial court erred in granting summary judgment on the defamation claim.  The claim was untimely, because a defamation cause of action accrues at the time of publication, not at the time of injury.  But the county waived the claim's untimeliness, because it failed to serve a notice of untimeliness.  The county argued that it relied on the date of injury stated in the claim, and that it had no duty to investigate to determine whether the claim was untimely.  But the county form did not ask when the claim accrued; it asked when the injury occurred.  For defamation, the date of injury did not determine the claim date.  Further, the JIMS printout attached to the claim did list the accrual  date:  The date the felony charge was published.  Since the purpose of the claim was to enable the county to investigate the charge, it was disingenuous for the county to argue that it had no duty to investigate by looking at the documents attached to the claim.  While an entity has no duty to investigate to determine timeliness, it fails to do so at the risk of waiving a timeliness defense in litigation.  By not notifying the plaintiff his claim was late, the county deprived him of the right to pursue late-claim relief and explain he did not discover the publication until nearly a year after publication.

The appellate court rejected the alternative ground for summary judgment that the defamation claim was barred by Government Code section 821.6 prosecutorial immunity.  The immunity extends to discretionary decisions in the course of investigation and prosecution, such as charging the plaintiff with contempt.  But the defendants were not involved in the prosecution of plaintiff, and recording the charge was a ministerial act.  It was therefore not subject to the immunity.

The appellate court ruled that the trial court erred in sustaining the demurrer to the failure to train charge.  Complaints need only allege ultimate facts, particularly where the entity has superior knowledge of the facts.  The defendants had superior knowledge of their training, so the complaint did not need to plead details.

Finally, the writ cause of action was not moot, because the facts showed the events here could be repeated in other cases, and the matter of reporting charges was a matter of public interest.

Intersection Where Motorist with Sun in His Eyes Hit Pedestrian Is Not in a Dangerous Condition

In Thimon v. City of Newark, published January 27, 2020, the First District Court of Appeal, Divison 2 affirmed summary judgment for the defendant city in a case alleging a city intersection was a dangerous condition of public property.  The 14-year-old plaintiff was crossing the intersection on her way to school at 7:30 on a December morrning.  The intersection was not controlled by signals or stop signs, and contained no pedestrian-activated signals or lights.  It had a painted crosswalk. After the plaintiff was in the crosswalk approximately six seconds, she was struck by a vehicle traveling on the street she crossed.  The vehicle was driving under the 45 MPH posted  speed limit.The driver did not see the plaintiff, due to glare from the morning sun.  By driving despite his inability to see, the driver indisputably violated the basic speed law.  His negligence was indisputably a proximate cause of the accident.The parties' experts disputed whether the intersection was dangerous.  Over a 10-year period there had been no vehicle vs. pedestrian accidents at the crosswalk.  The trial court granted summary judgment on the ground that there was no defect in the intersection.

The appellate court agreed.  That the driver's negligence was a proximate cause of the accident did not preclude a finding of dangerous condition.  The question was whether any dangerous condition increased or intensified the risk of injury from the third party's conduct.  But the entity was not required to assume that third party drivers would act negligently or recklessly.  The entity is only required to provide roads safe for reasonably foreseeable careful use.  By showing that the street had no blind corners, elevation variances, or foliage that would obstruct a driver's view of a pedestrian in the intersection; that the intersection had a crosswalk painted with white lines; that signs warning of pedestrians hd been installed approaching the intersection; that the driver was negligent; and the absence of similar accidents, the city carried its prima facie burden on summary judgment of showing that the intersection did not pose a substantial risk to users with due care.  The city was entitled to address each of the factors that the plaintiff identified as possibly making the street dangerous, whether individually or in combination with other factors.  The plaintiff's argument that the city's showing did not show that the combination of factors at the intersection created a dangerous condition failed.  In response to this showing, the plaintiff failed to raise a triable issue of fact.  There was no evidence to support the plaintiff's contention that providing a painted crosswalk at the scene increased the risk from negligent drivers.  Alleged failure to follow general guidance in Caltrans traffic manuals for marking crosswalks did not raise a triable issue, particularly since the city produced undisputed evidence that its engineering professionals exercised the discretion called for in the Caltrans manuals in evaluating the appropriateness of placing a crosswalk at the intersection.  The theory that the crosswalk encouraged more pedestrians to cross at the intersection did not show an increase or intensification of risk to the plaintiff when she used it.  The theory that the plaintiff would not have used the crosswalk if not marked was speculative.  The argument that the crosswalk created a trap failed, because the claimed dangerous conditions--street width, traffic volume, traffic speed, absence of a signal or other traffic controls, the glare of the sun-- were apparent to pedestrians.  While the sun's glare combined with unexpected road features may create a dangerous condition, there was no evidence of that here.  Case law implictly rejects the idea that an intersection on a heavily-traveled thoroughfare is made dangerous by the type or existence of crosswalk markings, the lighting conditions, or the lack of traffic devices.  The proffer of an expert declaration opining a condition is dangerous does not preclude summary judgment.

Lack of Barrier to Prevent Trespassing on Adjoining Property Is Not Dangerous Condition

In Hedayatzadeh v. City of Del Mar, published January 22, 2020, the Fourth District Court of Appeal, Division 1 affirmed summary judgment in favor of the defendant city.  A city street terminates at a guardrail on an ocean bluff.  There is no barrier preventing pedestrians from walking past the guardrail, and pedestrians would pass by the rail onto the right-of-way.  Past the guardrail is a sloped dirt embankment that leads down to railroad tracks, located on a right-of-way owned by a transit district and not the city.  A young man was part of a group that walked down the embankment, trespassing on the transit district property.  He tried to take a selfie with an oncoming freight train.  The train struck and killed him.  His father sued the city, alleging that the street was a dangerous condition of public property because it was adjacent to the tracks and right-of-way, and allowing people to access the right-of-way exposed the public to a substantial risk of injury when used in a reasonably foreseeable manner.  The trial court granted summary judgment on the ground that the property was not in a dangerous condition.

The appellate court agreed that, as a matter of law, the city property was not a dangerous condition of public property.  Public property may be dangerous because of a hazardous condition on adjacent property.  That occurs where a condition on property adjacent to a public highway is so connected with or in such proximity to the traveled portion as to render those traveling it unsafe; or where the public entity take an affirmative act, such as locating a public facility in a certain place or providing a particular means of access to an adjacent hazard, that puts users of the property in danger.  But merely failing to erect a barrier to prevent users of the entity's property from leaving the property and willfully accessing a hazard on adjacent property is not a dangerous condition of public property.  The city did not create any condition of public property that necessarily endangered users of city streets.  Users are not required to walk around the guardrail, down an embankment, and toward the train tracks.  Nor does anything about the property entice or encourage the public to put themselves in harm's way by entering the hazardous area.

Because Prison Staff Member's Sexual Assault of Prisoner Violates Eighth Amendment, Jury Instruction Requiring Prisoner to Prove Elements of Excessive Force Claim Was Plain Error

In Bearchild v. Cobban, published January 16, 2020, a divided 9th Circuit panel reversed and remanded the judgment entered after the jury trial of a prisoner's Eighth Amendment claim against prison officials.  The plaintiff alleged that during an intrusive search, a prison guard improperly rubbed, groped, stroked, and squeezed the plaintiff in intimate areas.  During the trial of the prisoner's 42 U.S.C. section 1983 suit for violation of his Eighth Amendment rights, the district court gave the jury the 9th CIrcuit model Eighth Amendment instruction, which focused on the amount of force used, the need for the use of force, the user's subjective state of mind, and the harm.  The pro se inmate did not object to the instruction.  The jury returned a defense verdict.

The majority ruled that the jury instruction was erroneous.  Past 9th Circuit cases of alleged sexual assault of prisoners by prison staff established that a sexual assault violates the Eighth Amendment, since it serves no penological purpose; the defendant is presumed to have acted maliciously and sadistically for the purpose of causing harm, satisfying the subjective state of mind element; and the inmate need not prove he or she suffered injury to prove a violation.  Therefore, a prisoner presents a viable Eighth Amendment claim where where he  or she proves that a prison staff member, acting under color
of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.  Because the instruction given required the prisoner to prove additional elements concerning excessive force, it was plain error.  A further instruction defining sexual assault did not cure the error, because a reasonable jury would not necessarily understand the instruction applied to the Eighth Amendment claim.  A dissenting judge opined that the combined instructions adequately informed the jury of the plaintiff's burden.

Period Probationary Employee Was Relieved of Duty, with Pay, Was Period Away from Actual Service, Permitting Employer to Extend Probationary Period

In Amezcua v. Los Angeles County Civil Service Commission, ordered published January 17, 2020, the Second District Court of Appeal, Division 5, affirmed a trial court order denying writ petitions of ordinary and administrative mandamus challenging the dismissal of a sheriff's deputy.  The county's civil service rules prescribe that a county employee's probationary period shall be no longer than 12 months from date of appointment to permanent position.  The rules further provide that if an employee is absent from duty, the appointing power may calculate the probationary period based on the date of actual service, exclusive of the time away.   The rules define "actual service" to mean time engaged in the performance of the duties of a position or positions including absences with pay.  The plaintiff was placed on a 12-month probationary period.  During the period, he was relieved of duty during an administrative investigation.  He was told to turn in his gun and badge and remain at home during work hours.  He received pay.  He was notified that his probationary period was being extended.  More than 12 months after his hire, he was terminated without a hearing.  He contended that his probationary period was not properly extended; that he therefore became a permanent employee when the 12 months expired; and that he was entitled to a hearing before termination.

The appellate court majority concluded that the probationary period was properly extended.  It interpreted the time during which plaintiff was relieved of duty to be time absent from duty, since he had no duties except to surrender his badge and gun and remain home during work hours.  It rejected an argument that because actual service included absences with pay, the time during which he was relieved of duty was a period of actual service.  A dissenting justice disagreed, and opined the text of the rules supported the plaintiff's interpretation.

School District Plan Limiting Parent's Communications with Teachers Did Not Violate Parent's First Amendment Rights

In L.F. v. Lake Washington School District, published January 17, 2020, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 lawsuit based on the plaintiff parent's First Amendment rights.  The plaintiff allegedly engaged in a pattern of sending incessant e-mails to school staff accusing them of wrongdoing, making demands, and leveling insults, and also acted agressively and in an intimidating manne in face-to-face interactions concerning the district's decisions about his children, including the plaintiff's contention that his daughter would benefit from a plan under section 504 of the Rehabilitation Act.  The district imposed a communication plan, under which the parent's substantive communications with the district about his children's education would be limited to bi-weekly, in-person meetings with two administrators.  The e-mail communicating the plan advised the plaintiff against e-mail or other communications with any district employees outside the bi-weekly meetings, as the employees would not respond to them.  The plan did not apply in the event of an emergency, did not prevent him from pursuing administrative appeals, and did not bar him from attending school activities or accessing school records.  The plaintiff was told he could appeal the communication plan to state court.  He did not do so.  When the district determined the plaintiff had violated the plan, it changed the frequency of meetings to monthly.  The district court concluded that the communication plan did not violate the plaintiff's First Amendment rights.

The 9th Circuit agreed.  The plan did not restrict the plaintiff's speech, because the only penalty for violating the plan was that the district employees would not respond to him.  The plan therefore restricted the employees' speech, not the plaintiffs.  Even if the plan could be deemed a restriction on the plaintiff's speech, it was a reasonable one.  Under the circumstances, a parent's communication with the school about his children was a non-public forum.  The regulation was therefore subject to limited First Amendment review:  it needed only to be reasonable to comply with the First Amendment, so long as it was not an effort to suppress the speaker's activity based on disagreement with the speaker's message.  These restrictions were reasonable, and were based on the manner in which the plaintiff communicated with the district--not the content of his speech.  The plan was therefore a reasonable effort to manage a parent's relentless and unproductive communications with district staff.

Going and Coming Rule Bars City's Vicarious Liability for Employee's Auto vs. Pedestrian Accident, Despite Workers Compensation Treatment of Employee's Injury

In Bingener v. City of Los Angeles, ordered published January 9, 2020, the Second District Court of Appeal, Division 3 affirmed summary judgment for the defendant city in a personal injury suit.  A city employee who worked in a lab, seldom left the lab, and never used his personal vehicle for work-related travel, struck a pedestrian during the employee's morning commute to work.  The pedestrian passed away.  The city sought summary judgment based on the going and coming rule, which provides that an employee is generally not considered to be acting within the scope of employment when going to or coming from his regular place of work.  The Plaintiff argued that there was a dispute of fact on the work-spawned risk exception, because the city allegedly knew of health conditions that impaired the employee's ability to drive, but allowed him to return to work prematurely without placing restrictions on his driving.  The trial court granted summary judgment based on the going and coming rule.

The appellate court agreed that there was no issue of fact on the work-spawned risk exception.  The evidence established without dispute that the employee did not have a health condition or took medication that impaired his ability to drive on the date of the accident.  The employee's treating physician, not the city, cleared the plaintiff to return to work after a back injury, and did not place restrictions on the employee's driving.  No evidence supported the plaintiff's theory that the accident was a foreseeable consequence of the employee's back injury two months earlier.