Government Liability Update

Younger Abstention Ruling in Suit Seeking Injunction against Abatement Action Is Ruling in Defendant's Favor, Permitting Defense Fees under 42 U.S.C. § 1988

In Citizens for Free Speech v. County of Alameda, published March 24, 2020, the 9th Circuit affirmed a district court decision dismissing a 42 U.S.C. section 1983 lawsuit based on Younger abstention, and awarding the defendant county attorney fees under 42 U.S.C. section 1988 on the ground the suit was frivolous.  The plaintiff entered into an agreement with a property owner to display billboards on the property bearing political messages.  The county brought an abatement proceeding before its zoning board.  The plaintiff brought an earlier federal lawsuit seeking to enjoin the abatement action.  It failed to obtain an injunction against the county enforcing its ordinances.  After the litigation ended, the county brought a new abatement proceeding.  The plaintiff brought the current lawsuit, seeking injunctive and monetary relief.  The district court dismissed the case and awarded the county costs and fees.

The 9th Circuit affirmed the district court's conclusion that Younger abstention applied.  The abatement proceeding met the Younger criteria:  an ongoing quasi-criminal enforcement action that implicates an important state interest and allows the litigants to raise a federal challenge.  Nuisance abatement proceedings are quasi criminal, and implicate an important state interest:  the county's interest in its land use ordinances and in providing a uniform procedure for resolving zoning disputes.  The plaintiff had an adequate opportunity to raise constitutional challenges via a petition for writ of administrative mandate.  And the lawsuit would have the practical effect of enjoining the ongoing proceeding.  The fee award was appropriate, in light of the district court's finding that the lawsuit was frivolous.  A previous 9th Circuit case had ruled that defendants were not prevailing parties for purposes of a fee award when a case was dismissed due to Younger abstention.  But a later Supreme Court case, CRST Van Expedited, Inc. v. E.E.O.C. (2016) 136 S. Ct. 1642, held that a defendant need not prevail on the merits to be a prevailing party for fee purposes, so long as the plaintiff's challenge is rebuffed.  That is what happened here.

Williamson Finality Requirement for Federal Regulatory Takings Claims Survives Knick; Untimely Objection to Requirement Waives Objection

In Pakdel v. City and County of San Francisco, published March 17, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed dismissal of a challenge to a rental property conversion program as a regulatory taking.  The defendant city instituted an expedited conversion program for permitting rental property owned by tenants-in-common to be converted to condominiums.  If a unit in the property was rented to a person other than an owner, the program required the owners to offer the tenant a lifetime lease.  The owners of a rental property applied to convert their property, and agreed to offered their tenant a lifetime lease.  They allowed deadlines to request exemptions to program requirements to pass, and expressly waived the right to seek an exemption.  They obtained approval from the city to convert.  The owners then requested that the city exempt them from the lifetime lease requirement, or compensate them for the lease.  When the city refused, the plaintiff owners sued the city under 42 U.S.C. section 1983, alleging a violation of the Takings Clause of the Fifth Amendment.  The district court dismissed the lawsuit under Williamson County Regional Planning Comm. v. Hamilton Bank (1985) 473 U.S. 172, on the ground that the plaintiffs had not first sought compensation under state law.  While the appeal was pending, the Supreme Court decided Knick v. Township of Scott (2019) __U.S.__, 139 S.Ct. 2162, which threw out the requirement that plaintiffs suing for a taking under the Fifth Amendment first seek compensation under state inverse condemnation law.

The majority nevertheless affirmed the dismissal.  The Knick decision left intact Williamson's requirement that a plaintiff suing a municipality for a regulatory taking under the Fifth Amendment obtain a final decision from the defendant municipality, by requesting an exemption to the challenged regulation.  Because the plaintiffs did not timely request an exemption from the lifetime lease requirement, and expressly waived any request for exemptions, they failed to obtain a final decision from the city on the exemption issue.  The finality requirement therefore barred their suit.

A dissenting judge opined that because the city denied the plaintiffs' belated request for an exemption, the city reached a final decision, satisfying the finality requirement.

Trial Court Acted within Its Discretion in Determining Stay of Permit Approval Pending CEQA Review Did Not Warrant CCP 1021.5Fees

In Canyon Crest Conservancy v. County of Los Angeles (Kuhn), ordered published March 12, 2020, the Second District Court of Appeal, Division 4 affirmed a trial court decision denying attorney fees under Code of Civil Procedure section 1021.5 to the plaintiff organization.  The real party in interest sought to build a residence on his property.  The development was on a steep hillside, and would require removing a protected coastal oak tree.  The real party obtained permits from the defendant county permitting the development and tree removal.  Two of the real party's neighbors established the plaintiff conservancy.  The conservancy unsuccessfully appealed the permits administratively.  The conservancy then sued the county, alleging violation of the California Environmental Quality Act.  To preserve the status quo, the trial court granted an administrative stay of the permit approvals.  The real party then asked the county to vacate the permit approvals, on the ground that he could not afford to continue the litigation. The county agreed to do so. The conservancy dismissed its case, then moved for attorney fees.  The trial court denied fees on the ground that the conservancy failed to establish any of the elements for recovery of fees under section 1021.5.

The appellate court ruled that the trial court acted within its discretion in ruling that the conservancy failed to establish that it enforced an important right affecting the public interest or conferred a significant benefit on the public.  On the first requirement, the trial court acted within its discretion in ruling that the conservancy failed to obtain any additional review of the project, and that merely getting approval stayed and the ultimate result of the developer abandoning the project was not a vindication of the rights he sought.  Bringing a viable CEQA action alone was insufficient.  Similarly, the trial court could find that obtaining the stay alone did not convey a significant benefit on the public, the lawsuit was dismissed without either an agreement or a ruling that the project would be completed in a different way.

Officers Who Fail to Intervene in Colleague's Mishandling of Firearm Not Acting under Color of State Law; Municipality's Policy on Carrying Firearm Does Not Show Deliberate Indifference

In Park v. City and County of Honolulu, published March 13, 2020, a divided 9th Circuit panel affirmed a district court's dismissal of a 42 U.S.C. section 1983 lawsuit.  Three off-duty police officers were in a bar.  One allegedly became intoxicated, inspected his personal revolver (which his department had authorized him to carry), and tried to load his already-loaded pistol.  It accidentally discharged, and a bullet struck the plaintiff, a bartender.  She sued the three officers and the defendant municipality.  She alleged that the two other officers violated her Fourteenth Amendment substantive due process right to bodily integrity by failing to intervene.  She alleged that the municipality violated her rights by promulgating a policy requiring off-duty officers to carry a firearm at all times, except when mental processes are impaired by drinking (allegedly requiring an officer to carry a firearm until he or she consumes enough alcohol to be impaired); and by a "brotherhood code of silence" that allegedly emboldened the intoxicated officer to act with impunity.

The panel majority agreed with the district court that the plaintiff failed to plead facts establishing either claim.  Because the non-shooting officers were not only off-duty, but in civilian clothes, they did not have the indicia of authority that would establish that they were acting under color of law when the allegedly failed to intervene.  The two policies or customs described did not show Monell liability, because the plaintiff failed to plead facts showing deliberate indifference behind them.  Deliberate indifference required either an obviously facially inadequate policy, or a pattern of  prior, similar violations of federally-protected rights, of which the policymakers had actual or constructive notice.  The facts showed neither here.  A dissenting judge opined that the complaint adequately pleaded that the officer with the revolver was acting under color of state law, and that the policies, practices, or customs identifies showed deliberate indifference sufficient to plead a cause of action. 

Statute Reviving Childhood Sexual Abuse Cases Barred by Claim Act Constitutional, but Does Not Apply to Parents' Claims

In E.D. Coats v. New Haven Unified School Dist., published March 12, 2020, the First District Court of Appeal, Division 2 reversed a judgment on the pleadings against a former student plaintiff, but affirmed the judgment against her foster mother's case.  From 2014-2015, when the student was 17, one of her teachers engaged in multiple acts of sexual intercourse with her.  In 2016, a year and a half after the intercourse was discovered and ceased, the student and foster mother sued the school district, principal, teacher, and others.  The student alleged causes of action for sexual abuse, negligence, breach of statutory duties in failing to adequately supervise teachers and protect students, and intentional and negligent infliction of emotional distress.  The foster mother sued for negligent and intentional infliction of emotional distress.  The plaintiffs contended that Government Code section 905, subdivision (m) exempted them from having to present a claim to the district under the Government Claims Act.  The district and principal argued that a district regulation adopted under Government Code section 935 (which permits public entities to enact claim requirements for actions that would otherwise be exempt from the claim requirements under Government Code section 905) required the student to present a claim; and that section 905(m) did not apply to the foster mother.  In 2018, while the appeal was pending, the Legislature amended section 935 by adding a subdivision providing any procedure authorized by the section does not apply to childhood sexual abuse claims, and stated it was declaratory of existing law.  Then in 2019, the Legislature amended Code of Civil Procedure section 340.1 (which sets forth the statute of limitations for childhood sexual abuse claims) to add a treble damages provision for cover-up of sexual assault of a minor; raised to 40 years of age the cutoff of a plaintiff's ability to sue third party defendants; and provided that any claim for damages that has not been litigated to finality and would otherwise be barred as of January 1, 2020 because "the applicable statute of limitations, claims presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020."  The same bill expanded section 905, subdivision (m).  The district argued that the revival portions of the new statute were unconstitutional.

The court of appeal ruled that the provisions were constitutional.  The constitutional prohibition on ex post facto laws applies to criminal statutes and statutes that are punitive.  The argument that the treble damages portion of amended section 340.1 failed, because there was no evidence of cover-up here.  Similarly, arguments that the scope of the revival of claims was unreasonable failed, because here the lawsuit was brought just a year and a half after the sexual abuse ended.  Because the statute would revive the student plaintiff's cause of action even if it had been barred by the claim statute, the trial court erred in granting judgment against her.

The court of appeal also ruled, however, that section 905, subdivision (m) applies only to direct victims of sexual abuse.  It does not apply to parents or others who suffer emotional distress as a result of the sexual abuse of a minor.  The trial court therefore properly granted judgment against the foster mother plaintiff.

Petition to Court for Late Claim Relief Must Be Based on Same Factual Reason Advanced in Application to Entity; Petitioner Must Prove that the Factual Reason Is True

In Lincoln Unified School Dist. v. Superior Court (Jones), published March 3, 2020, the Third District Court of Appeal issued a writ directing a trial court to reverse its decision granting a petition under Government Code section 946.6 for relief from claim requirements.  The plaintiff's son was injured during high school football tryouts.  The plaintiff presented a timely claim, through an attorney, on her son's behalf to the school district.  Four months later, the plaintiff presented an application for leave to present late claim to the district for her own injuries, based on the impact the son's injuries had on her life.  The application asserted that the plaintiff did not realize her son would have lifelong problems earlier.  The plaintiff submitted a declaration with the claim stated that she was not aware of the degree of her son's injuries earlier, and that she was so busy taking care of her son, she was not functioning properly and was unaware of her right to file a claim.  The application argued mistake, inadvertence, surprise, or excusable neglect.  The district allowed the application to be denied by operation of law.  The plaintiff then petitioned the court for relief under section 946.6, supported by the same declaration as the application.  In its opposition, the district presented social media evidence that the plaintiff was aware of the severity of the son's injuries before her son presented his claim, and that she had hired an attorney to present a claim for her son.  The court ruled that the evidence contradicted the plaintiff's reasons for presenting a late claim.  The court allowed the plaintiff to file supplemental briefing.  Her attorney then submitted a declaration that the plaintiff had retained him to present a claim for her within the six months to do so, but that he and his secretary failed to calendar the last day to present a claim for the plaintiff, and so forgot to present a claim for her as well as for her son.  The trial court found that the new evidence raised concerns about the plaintiff's credibility, but nevertheless granted relief because the plaintiff had shown excusable neglect.

The court of appeal ruled that the trial court abused its discretion by granting relief.  Interpreting Government Code sections 911.4 (governing late-claim applications to public entities) and 946.6 (governing petitions for relief to courts), the court concluded that the language in both statutes requiring the claimant to show the "reason" for the delay in presenting the claim refers not to the conclusion of mistake, inadvertence, surprise, or excusable neglect, but to the factual basis that would justify the conclusion that the delay was based on mistake, inadvertence, surprise, or excusable neglect.  Further, since both statutes refer to "the reason" for the delay, the statutes require that "the reason" offered to the superior court and to the public entity must be the same.  While section 946.6 allows a claimant to offer additional evidence in the petition to support the reason provided, the factual reason itself must be the same in the application and the petition.  

The plaintiff here presented the same factual reason in the application and petition, but then presented additional evidence that provided a new reason that was not contained in the application,and contradicted the reason set forth in the application and petition.  The trial court noted this, but concluded public policy favored relief.  That was an abuse of discretion.  The plaintiff cannot advance a factual theory of excusable neglect entirely different from the one previously presented to the entity; and the plaintiff must demonstrate the truth of the original theory by a preponderance of the evidence.

Rope Stretched Across Recreational Path Covered by Trail Immunity

In Reed v. City of Los Angeles, published February 28, 2020, the Second District Court of Appeal, Division 1 affirmed summary judgment for the defendant city in a case alleging dangerous condition of public property.  The plaintiff was riding his bicycle on a paved path adjacent to a sports field in a city park early one morning when he rode into a rope attached to a badminton net and stretched across the path.  The plaintiff alleged that individuals unrelated to the city had erected the net, but that they had done so frequently enough that the City knew or should have known the rope would be there.

The appellate court ruled that Government Code section 831.4's trail immunity applied.  The immunity applies to conditions adjacent to the recreational trail that pose a danger only to users of the trail.  Here, the badminton net did not pose a danger except to users of the trail, because it impeded regular use of the trail.  The alleged failure to take measures to prevent the rope from being stretched across the trail is a failure to maintain the trail.  The immunity applies to failure to maintain trails.