Government Liability Update

Although Use of Less-Lethal Force on Armed Suspect Refusing to Raise Hands Reasonable, Issue of Fact Exists on Whether Officer Using Foot to Force Non-Resisting Suspect Down Reasonable or Subject to Qualified Immunity

In Cortesluna v. Leon, published October 27, 2020, a split 9th Circuit Court of Appeals panel affirmed in part and reversed in part summary judgment for the defendant police officers and city in a 42 U.S.C. section 1983 case.  A 911 operator received a call from a 12-year-old that her mother's boyfriend was carrying a chainsaw and sawing his way into the room where she, her sister, and her mother had barricaded themselves.  Officers were dispatched.  When they approached the home, they saw the suspect holding only a beer.  Police knocked on the front door, identified themselves, and told the suspect to come to the front door.  The suspect emerged from a sliding glass door near the front door, holding a large metal object.  The officers ordered the suspect to drop the object.  He did.  An officer said, "I'm going to hit him with less-lethal," and told another officer to get out of the way.  Officers ordered the suspect to come out, put his hands up, and walk toward them.  He complied.  The officers told him to stop and get on his knees.  An officer saw a knife in the front left pocket of the suspect's sweatpants.  The officer told the suspect not to put his hands down, and to put his hands up.  The suspect turned his head toward the officer, lowered his head, and lowered his hands.  An officer shot the plaintiff with two beanbag rounds.  The suspect then raised his hands.  The officers ordered him to get down.  As the suspect lowered himself to the ground, an officer used his foot briefly to push the suspect to the ground.  He then pressed his knee against the suspect's back and handcuffed him.  A video of the incident appears at https://cdn.ca9.uscourts.gov/datastore/opinions/media/19-15105-Cortesluna-Videotape.mp4  The suspect sued the officers and city for use of excessive force.  The district court granted all of the defendants summary judgment.

The majority affirmed summary judgment for the use of the less-lethal bean bag shotgun.  It concluded under the circumstances--the suspected crime, the knife in the pocket, the suspect's failure to obey orders to keep his hand raised--the use of force was objectively reasonable.  As for the knee on the back, the majority found a genuine issue of fact on whether the use of force was reasonable.  Viewing the facts in the light most favorable to the plaintiff, a reasonable jury could find that the suspect was not resisting, that the knife was blade-up and could not be grabbed and used, and that the knee was applied with enough pressure to cause the suspect pain.  Because existing precedent held that use of a knee on a suspect under similar circumstances violated the Fourth Amendment, the majority held, the officer was not entitled to qualified immunity.  The majority affirmed dismissal of state law claims against the officer who used the less-lethal weapon and reversed the dismissal as to the officer who used his knee.

A judge dissented from the portion of the opinion affirming summary judgment in favor of the officer who used the less-lethal weapon, opining that issues of fact prevented a finding that the use of force was reasonable.  Another judge dissented from the portion of the opinion reversing summary judgment as to the officer who used his knee.

Officer Did Not Violate Clearly-Established Law by Using Deadly Force on Suspect Approaching Previous Assault Victim with Drawn Knife

In Ventura v. Rutledge, published October 22, 2020, the 9th Circuit Court of Appeals affirmed summary judgment granted to a police officer in a 42 U.S.C. section 1983 case.  In 2015, the mother of the decedent's children called 911 and reported that the decedent had hit her and the decedent's mother.  The call was classified as a violent domestic disturbance.  As the defendant officer was interviewing the reporting party, the decedent began walking up the sidewalk toward the party's home.  The reporting party told the officer, "That's him."  She moved behind trash cans.  The officer issued several orders to "stop."  The decedent continued approaching, and drew a knife.  The decedent said, "Is this what you wanted?"  He continued to approach.  The officer shouted, "Stop or I'll shoot."  The decedent did not stop.  The officer shot and killed the decedent.  The decedent was within 10-15 feet of the reporting party when the officer fired.  The district court ruled that the officer was entitled to qualified immunity.

The 9th Circuit agreed.  The court resolved the qualified immunity issue on the second prong of the immunity:  whether the officer's use of force violated clearly-established law.  As of 2015, the court determined, the law had not clearly established that using deadly force against a suspect who was advancing with a knife toward the woman he had reportedly just assaulted, and who ignored an officer's repeated commands to stop, amounted to constitutionally excessive force.

Filing Lawsuit and Presenting Late-Claim Application on Same Day Does Not Comply with Claim-Presentation Requirement

In Lowry v. Port San Luis Harbor District, published October 22, 2020, the Second District Court of Appeal, Division 6 affirmed judgment entered for the defendant district based on a motion for judgment on the pleadings.  The plaintiff filed a complaint in superior court against the district.  On the same day, he faxed the district an application for permission to present a late claim, with a proposed claim attached.  The district's harbor manager received the application the next day, and presented it to the board of commissioners 16 days later.  The district sent the plaintiff a notice rejecting the claim, but not mentioning the application.  The plaintiff later served the summons and complaint upon the district.  The district filed an answer asserting failure to comply with the Government Claims Act.  The trial court granted the district's motion for judgment on the pleadings based on noncompliance with the Act.

The court of appeal ruled that the plaintiff timely presented the late-claim application to the board within a year of accrual.  The fact that the harbor master did not present it to the board until 16 days later did not affect the timeliness of the presentation, because the plaintiff faxed the application to the proper recipient, the district.  Because the district sent a Government Code section 913 notice denying the claim on its merits, and did not send a Government Code section 911.8 notice denying the application (and warning that the plaintiff had six months to petition the court for late-claim relief), the district was estopped from asserting that it did not grant the application to file a late claim.  The application was therefore deemed granted.  But the plaintiff did not wait for the district to take action on the claim or application, or for the time for it to do so to expire, before filing suit.  Therefore, his complaint was premature.  The appellate court disagreed with various cases that allowed plaintiffs to file premature complaints before claims were rejected.  In light of the California Supreme Court's decision that claim presentation requirements were to be strictly applied, the appellate court deemed those cases no longer good law.  The plaintiff therefore failed to comply with the Government Claims Act.  The trial court properly granted judgment on the pleadings without leave to amend.

Trial Court Erred in Treating Suit Challenging Water Rates as Administrative Mandamus Petition and Excluding Expert Declaration

In Malott v. Summerland Sanitary District, published October 19, 2020, the Second District Court of Appeal, Division 6 reversed a trial court judgment denying a petition for writ of administrative mandamus.  The defendant district, which provides wastewater collection, noticed a public hearing on a service rate increase.  The plaintiff, an apartment house owner, did not attend the hearing.  The rate increase was approved at the hearing.  The plaintiff then filed the administrative mandamus writ petition challenging the rate increase.  She alleged she was excused from exhausting the administrative remedy of the hearing because it was an inadequate remedy.  She challenged the district's method for calculating rates as violating the state constitution.  She filed a motion for judgment that included an expert declaration supporting her contentions.  The trial court granted a motion to strike the declaration on the ground that it had not been filed at the public hearing, and therefore was improper extra-record evidence.  The court upheld the rate as valid.

The court of appeal ruled that the trial court had erred both in striking the declaration and in denying the petition.  Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372 ruled that the public hearing required by article XIIID, section 6 of the California Constitution, added by Proposition 218, is an inadequate administrative remedy for challenging the method of calculating service fee allocation among parcels, and therefore does not have to be exhausted before the method is challenged in court.  Plantier involved a declaratory relief action.  The plaintiff's election to petition for administrative mandamus instead of filing a declaratory relief action does not prevent the plaintiff from challenging the rate calculation method.  The formality that the plaintiff styled her lawsuit as an administrative mandamus action does not prevent Plantier from applying.  The distinction between declaratory relief and mandamus is not always clear.  Where a plaintiff mistakenly files an administrative mandamus petition instead of an ordinary mandamus petition or declaratory relief cause of action, relief will not be denied where the allegations of
the petition are sufficient to support the other two causes of action.  Because the petition asked for relief that would be appropriate in a declaratory relief action, the petition should be judged on the substance of its allegations rather than its label.  Although administrative mandamus petitions are generally limited to the evidence in the administrative record, to confine petitioners to the record of an inadequate administrative remedy would improperly elevate an exclusionary rule over the right to have a forum to litigate.  Further, even in administrative mandamus actions, courts have the discretion to admit extra-record evidence if the criteria are met.  Here, the expert declaration was relevant evidence supporting the challenge the plaintiff was entitled to make.  The appellate court remanded the action to the trial court to permit both parties to present evidence before the court makes its decision.

Ballot Measure Cannot Be Challenged Post-Election Due to Alleged Deficiencies in Ballot Materials; Demurrer to Challenge Permissible

In Denny v. Arntz, published October 14, 2020, the First District Court of Appeal, Division 2 affirmed the dismissal based on demurrer of a lawsuit challenging a city proposition.  The proposition was summarized in a voter pamphlet.  Pre-election, public meetings were held to discuss the digest language on the proposition that would go into the pamphlet.  The pamphlet also included the full text of the proposition.  The proposition passed, with 82.7 percent of the votes cast in favor.  Five months after the election, the plaintiff sued the city director of elections and city attorney to set aside the proposition under Elections Code sectoin 16100.  He contended that the digest materials were not fair and impartial.  The trial court sustained the defendants' demurrer without leave to amend.

The appellate court held that the plaintiff failed to state a cause of action under Elections Code section 16100.  A court has a duty to uphold an election if possible, and the election must be upheld unless plainly illegal.  A court's authority to invalidate an election is limited to the grounds of section 16100.  Section 16100 does not set forth grounds to challenge a ballot measure based on alleged deficiencies in the impartial analysis of a ballot measure.  Enforcing the requirements for an impartial analysis of a ballot is a preelection activity, using the preelection remedies for doing so.  The appellate court further rejected the contention that the procedures of the Election Code superseded the Code of Civil Procedure's application, precluding a demurrer.  That would apply only if a cause of action was available under section 16100.

Mobile Billboard Ordinance That Excludes Specific Vehicles Is Content-Based Regulation Subject to Strict Scrutiny

In Boyer v. City of Simi Valley, published October 14,2020, the 9th Circuit Court of Appeals reversed in part and affirmed in part dismissal at the pleadings stage of a lawsuit challenging a city mobile billboard ban.  The ordinance banned mobile billboards on public property.  It excluded authorized emergency or construction-related vehicles.  The plaintiff challenged the ordinance as a content-based regulation of speech that violated the First Amendment. The district court concluded that the ordinance was content-neutral, and passed the rational-relation test as a reasonable time, place, and manner regulation.  It also dismissed the plaintiff's state law claims.

The 9th Circuit ruled that the district court erred in deeming the ordinance content-neutral.  A ban on all mobile billboards on public property would be content-neutral.  But the court could not determine a ground for excluding emergency or construction vehicles from the ban except for the content of the speech, and the city did not supply any.  Content-based speech regulations must satisfy strict scrutiny.  Because the district court did not analyze the ordinance under strict scrutiny, the 9th Circuit reversed and remanded dismissal of the federal law claims.  It affirmed the dismissal of the state law claims.  The district court had jurisdiction to analyze those claims on the merits and dismiss them at the same time it dismissed the federal claims.

Court Granting Preliminary Injunction under California Public Records Act May Require Plaintiff to Post Undertaking

In Stevenson v. City of Sacramento, published October 6, 2020, the Third District Court of Appeal affirmed a trial court order conditioning the grant of a request for a preliminary injunction under the California Public Records Act on posting a $2,349.50 undertaking.  The plaintiffs submitted CPRA requests to the defendant city for e-mails scheduled for automatic deletion.  When the city informed the plaintiffs their request was excessive, but offered to postpone deletion a week to allow plaintiffs to narrow their requests, the plaintiffs agreed to narrow the requests but also sued the city for allegedly refusing to provide them access to the requested records.  At the plaintiffs' request, the trial court issued a temporary restraining order to maintain the status quo.  At a later hearing, the court granted the plaintiffs' request for a temporary restraining order directing the city to preserve the 15 million e-mails the city identified as responsive to the narrowed CPRA requests.  Over the plaintiffs' objection, the court conditioned the grant of the injunction on the plaintiffs posting an undertaking under Code of Civil Procedure section 529, based on the city's estimated cost of complying with the injunction.

The appellate court rejected the various arguments of the plaintiffs and amici curiae that section 529 was incompatible with the CPRA.  The court noted that various statutory schemes that permit injunctive relief expressly exempt certain parties from section 529's requirement that a party seeking a preliminary injunction post an undertaking.  CPRA does not contain an express exemption.  Thus, section 529 provides the general rule, and the CPRA does not provide an exception; although Government Code section 6258, part of the CPRA, expressly allows parties to obtain injunctions, it says nothing about undertakings.  While Government Code sections 6253 and 6259 specify costs that may be charged requesters under the CPRA, these rules do not mean the Legislature, by implication, believed CPRA applicants should be exempted from other generally applicable requirements.  Trial courts retain discretion not to require undertakings if circumstances warrant.

Time to bring Monell Claim Based on Officer's Conduct Tolled until Charges against Plaintiff Dismissed

In Lockett v. County of Los Angeles, published October 2, 2020, the 9th Circuit, ruling on an interlocutory appeal, affirmed denial of a motion to dismiss a Monell claim in a 42 U.S.C. section 1983 case on statute of limitations grounds.  On January 1, 2016, officers from the defendant county arrested the plaintiff.  The plaintiff alleges the officers used excessive force in arresting him.  On January 20, 2016, the plaintiff was charged with attempted murder.  He was held in custody until August 2, 2016, when the charges were dropped.  On July 2, 2018, the plaintiff brought his suit.  The plaintiff alleged that the defendant county tolerated and ignored racially motivated cliques and gangs that led to the alleged use of excessive force.  Because the plaintiff sued two years and five months after his arrest, the defendant argued that the two-year statute of limitations under Code of Civil Procedure section 335.1, which applies to section 1983 actions, barred the Monell claim.  The district court held that the claim was tolled while the plaintiff was in custody.

The 9th Circuit agreed.  Under Government Code section 945.3, no person charged with a criminal offense may sue a peace officer or employing public entity for damages based upon peace officer conduct relating to the offense for which the accused is charged while the charges are pending before a superior court.  Section 1983 charges are tolled by section 945.3 while criminal charges are pending.  Here, "based upon" means "but for" causation.  Section 945.3 tolls the statute when the "but for" cause of the claim is the conduct of the peace officer.  A Monell claim cannot be brought unless the plaintiff proves that a peace officer committed an underlying constitutional violation.  Thus, in this case, the officers' alleged conduct in using excessive force is the "but for" cause of the plaintiff's Monell claim.  His claim was therefore tolled while his criminal charge was pending.