Government Liability Update

The Eighth Amendment's Excessive Fine Clause Applies to Municipal Parking Fines

In Pimental v. City of Los Angeles, published July 22, 2020, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted to the defendant city in a 42 U.S.C. section 1983 lawsuit.  The plaintiffs challenged the city's initial fines and late fees for parking past the allotted time at parking meters.  The initial fine is $63.  If the fine is not paid within 58 days, late fees are applied, which could raise the amount owed to $181.  The plaintiffs contended the initial fine and late fees violated the Excessive Fines clause of the Eighth Amendment.  The district court concluded that the fines and late fees were not grossly disproportional to the underlying offense.

The 9th Circuit affirmed summary judgment as to the initial fine.  It concluded that the Excessive Fines clause of the Eighth Amendment applies to municipal parking fees.  Therefore, the court applied a four-factor test to determine whether the fine was excessive:  (1) the nature and extent of the underlying
offense; (2) whether the underlying offense related to other illegal activities; (3) whether other penalties may be imposed for the offense; and (4) the extent of the harm caused by the offense. Applying the factors, the appellate court agreed with the district court that $63 was not grossly disproportional to the offense of overstaying the time at the parking meter, in light of the harm done to traffic flow from vehicles looking for parking places.  But the district court had not applied the four-factor test to the late fees.  The panel remanded the case to the district court to perform this analysis.  A concurring judge opined that the excessive-fines clause should not routinely apply to parking meter violations.

Use of Deadly Force against Driver Who Drives At Police Officers Objectively Reasonable

In Monzon v. City of Murrieta, published July 22, 2020, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant city and its police officers in a use-of-force case brought under 42 U.S.C. section 1983 and state law.  The decedent stole a van and led officers on a high-speed chase along residential streets.  He stopped at the end of a street.  The pursuing officers parked their vehicles in a staggered manner and approached the van on foot.  The van made a multi-point turn (striking a fence pole) and drove toward the officers.  According to a passenger in the van, the decedent raised his hands as if in surrender.  But the undisputed facts established that the decedent continued driving forward as he did so.  One of the officers fired at the van.  The van drove toward a gap between two of the police vehicles, in the process driving toward two officers.  The van struck one of the police vehicles, with such force that a nearby officer's arm went through a window of the police vehicle.  The van eventually stopped and began rolling backwards, which an officer stopped by jamming a skateboard under the wheel.  From the time the van began turning to the van's stop, only a few seconds passed.  During that time, the van accelerated to over 17 miles per hour.  A police K9 entered the van and bit the decedent.  The officers called the dog off and attended to the decedent.  An ambulance arrived within five minutes.  The decedent's parents sued the city and officers, alleging excessive use of force, denial of medical care, and, under California law, negligent use of force, battery, and violation of the Bane Act.  The district court ruled that the officers' use of force was reasonable, and that they did not deny the decedent medical care.  

The 9th Circuit agreed.  Under the fast-paced, dynamic circumstances facing the officers--including the high-speed chase, the driver's failure to obey orders to stop, the van turning toward the officers, and the decedent driving toward the officers--the officers' use of force to protect themselves and their fellow officers was objectively reasonable.  The court ruled that the circumstances had to be taken together, and not piecemeal. Even if the use of force had not been objectively reasonable, the officers would have been entitled to qualified immunity under the second prong of the immunity.  No Supreme Court or Ninth Circuit law established beyond debate that the officers' actions violated the Fourth Amendment.  Instead, the most analogous Ninth Circuit case supported the use of force.  The use of the police K9 was also reasonable under the circumstances, given the decedent's dangerous actions and the possibility that he was still conscious when the van stopped.  The denial of medical care claim failed, because the officers promptly summoned aid for the decedent.  The state law claims failed,  because even under the expanded standard for use of care under California negligence law the use of force was reasonable.

Pollak, Vida & Barer (along with Ferguson, Praet & Sherman) represented the City and officers on appeal.

CCP 1260.040 Procedure for Eminent Domain Cases Cannot Be Imported into Inverse Condemnation Cases

In Weiss v. People ex rel. Dept. of Transportation, published July 16, 2020, the California Supreme Court reversed a judgment entered in an inverse condemnation case after the trial court resolved liability issues on a motion made under Code of Civil Procedure section 1260.040.  Property owners brought the action alleging that sound walls along the 5 Freeway deflected noise, dust, vibrations, and nighttime glare onto their properties.  The defendant agencies demurred on the ground that the plaintiffs could not show that their properties sustained damage different from that sustained by neighboring properties.  The trial court overruled the demurrer.  Later in the action, the agencies asked the court to resolve the issue via section 1260.040.  Section 1260.040 is part of the statutory procedure for eminent domain cases.  It authorizes the court to make an early resolution of issues of evidence or law affecting compensation.  The trial court resolved the issue in the agencies' favor, which disposed of the case.

The Supreme Court ruled that the trial court erred by importing the statutory eminent domain procedure into an inverse condemnation action. A trial court may, in certain circumstances, devise or borrow a procedure appropriate to the specific litigation before it. But it may not do so when an applicable procedure is  provided by a statute or rule of court. Here, resolving liability under section 1260.040 supplanted resolution by summary judgment or adjudication, with all of the procedural protections inherent in that motion; and deprived the plaintiffs of the bench trial on inverse condemnation liability to which they would otherwise be entitled.  Section 1260.040 was intended to assist resolution of eminent domain cases before trial, by giving the parties a way to resolve evidentiary and legal issues that would affect the amount of compensation before the final round of demands and offers required by the eminent domain procedure.  It is not designed to be case determinative, since in eminent domain cases the public entity admits liability and the issue is the amount of compensation.  By contrast, in inverse condemnation cases the plaintiff must prove liability.  The section 1260.040 procedure is not appropriate for resolving liability in inverse condemnation cases.

Property Owners Must Exhaust Administrative Remedies before Challenging Business Improvement District in Court

In Hill RHF Housing Partners, L.P. v. City of Los Angeles, published June 29, 2020, the Second District Court of Appeal, Division 1 affirmed a trial court's decision denying petitions for writ of mandate and related declaratory and injunctive relief challenging the defendant city's establishment of two business improvement districts.  Article XIII D of the California Constitution and the Property and Business Improvement District Law of 1994 authorize cities to establish property and business improvement districts to levy assessments on real property.  The constitution and law establish a comprehensive procedure cities must follow to create a business improvement district.  The city must mail property owners notice of the proposed assessment and conduct a public hearing not less than 45 days after mailing the notice.  The city must provide property owners with assessment ballots.  At the public hearing, the city shall consider all objections or protests, if any, to the assessment.  Any person can provide oral or written testimony.  At the conclusion of the hearing, a ballot counter shall tabulate the ballots that have not been withdrawn.  The agency shall not impose the assessment if there is a majority protest to it.  The plaintiff property owners returned ballots opposing the establishment of the districts.  The city held the noticed public hearings.  At the hearings there no written protests received.  Based on the hearings and ballots received, the city established the districts.  The owners then petitioned for writs challenging the establishment of the districts.  The trial court denied the petitions on their merits.

The appellate court did not reach the merits of the petitions.  Instead, it ruled that the plaintiffs did not exhaust their administrative remedies.  The comprehensive administrative procedure for challenging a business improvement district requires not only that protesters return ballots against the district, but also present to the agency the owner's specific reasons for its objection, in a manner that the city can consider and either incorporate into its decision or decline to act on.  They can do that either orally or in writing at the public hearing.  Since the owners here did not do so, the court lacked jurisdiction to grant their petitions.

Government Code section 11523 Statute of Limitations for Administrative Mandate Petitions Subject to Equitable Tolling

In Saint Francis Memorial Hospital v. State Department of Public Health, published June 29, 2020, the California Supreme Court reversed dismissal of an administrative mandamus petition after demurrer.  The petitioner hospital administratively challenged a fine.  The state served the hospital with its final decision upholding the fine.  Two weeks later, the hospital filed a request for reconsideration.  The hospital responded. The hospital's counsel wrote the state agency's counsel a letter requesting that the agency confirm the date the hospital believed was the deadline to decide the reconsideration request.  The letter stated that the hospital intended to petition for writ of administrative mandate if reconsideration was denied.  The agency's attorney wrote back that he believed the hospital's counsel was correct.  The agency counsel did not mention that the statute of limitations for filing the writ petition began running when the decision issued, and had expired four days before the counsel sent the response letter.  The agency denied the reconsideration request on the ground that the decision was final and not subject to reconsideration.  The hospital then filed its petition, 41 days after the final decision.  The agency demurred on the ground of Government Code section 11523, which is a statute of limitations that requires the petition to be filed within 30 days of the last date on which reconsideration can be ordered.  The  trial court sustained the demurrer, reasoning the hospital had miscalculated the deadline for filing the petition.  The court of appeal affirmed.  It ruled that under the circumstances, equitable tolling was not available.

The Supreme Court ruled that equitable tolling was available.  There is a presumption that equitable tolling applies to a statute of limitations.  Nothing in Government Code section 11523's text, legislative history, or policy precludes equitable tolling.  The court rejected the argument that the plaintiff must have pursued a viable alternative remedy to be entitled to equitable tolling.  That is only one theory on which equitable tolling may be based.  Instead, equitable tolling is available on a case-by-case basis if the policies behind the doctrine are met.  To be entitled to equitable tolling, a plaintiff must establish timely notice to the defendant that the plaintiff will pursue the action; lack of prejudice to the defendant from tolling; and both objectively reasonable and subjectively good faith conduct by the plaintiff.  The circumstances here established the first two elements.  The Supreme Court remanded the case to the court of appeal to determine whether reasonable conduct and subjective good faith were present.

Because Notice of Administrative Decision Contained Contradictory Statements about Finality, Statute of Limitations Did Not Bar Writ Petition

In Alford v. County of Los Angeles, published July 1, 2020, the Second District Court of Appeal, Division 8 reversed a trial court's grant of summary judgment based on the statute of limitations.  An agency of the respondent county served a notice of an administrative decision that both stated that the decision was final, and that the decision would become final 90 days after it was placed in the mail.  It further stated that Code of Civil Procedure section 1094.6--the statute of limitations for filing a petition for writ of administrative mandamus--required the plaintiff to file any petition seeking review no later than the 90th day on which the decision is deemed final.  The plaintiff filed his administrative mandamus writ petition four months after the notice was served.  The trial court concluded that the petition was time-barred.

The appellate court ruled that the agency did not serve notice of its decision in compliance with the statute, and for that reason the statute of limitations did not bar the petition.  Section 1094.6 provides that where an agency decision is in writing, any petition challenging the agency decision must be filed within 90 days of the decision becoming final.  Under the statute, the decision becomes final on the date the decision is served by first-class mail with a copy of the affidavit of mailing.  The notice here did not clearly tell the plaintiff when the decision became final.  It gave the plaintiff two inconsistent dates on which the decision became final.  The petition could reasonably be deemed to mean that the decision would become final 90 days after mailing, and that the petitioner had 90 days from that date to file the petition.  Because the notice did not comply with the statute, the statute of limitations did not bar the petition.