Government Liability Update

Challenge to One-Time Benefit Program Is Moot after Money Spent

In Cerletti v. Newsom, published November 17, 2021, the Second District Court of Appeal, Division 5 dismissed an appeal from denial of a temporary restraining order against government spending in connection with a one-time benefit program as moot.  In April 2020, Governor Newsom established a $75 million Disaster Relief Fund to support undocumented Californians impacted by COVID-19.  The plaintiffs, as taxpayers, sued to challenge the project as an unlawful expenditure of funds.  In May 2020, they applied ex parte for a temporary restraining order and order to show cause re a preliminary injunction, seeking to halt distribution of benefits under the project.  The court denied the application on grounds including that prejudgment injunctive relief is not ordinarily available to remedy an alleged harm based on taxpayer standing.  The plaintiffs petitioned the appellate court for writ relief.  The appellate court denied the petition on grounds including the availability of an appeal.  The plaintiffs appealed the denial of the TRO.  They petitioned for a writ of supersedeas staying the order denying the TRO and the project itself.  The appellate court denied the petition, citing the rule that taxpayer harm is ordinarily insufficient to establish irreparable harm warranting preliminary injunctive relief.  While the appeal was briefed, the project money was all spent.

The appellate court ruled that because the money was spent, the appeal was moot.  While the court could resolve the case anyway if it raised an important issue likely to recur, but that evades timely appellate review, the court ruled that this was not such a case.  This was an emergency project to provide one-time payments during an extraordinary pandemic, which caused a state of emergency and a temporary pause in the operation of the Legislature.  There was nothing suggesting it was likely to recur.  

School District and Administrators Immune from Liability for Failure to Prevent Student Bullying Allegedly Causing Victim's Off-Campus Suicide

In Leroy v. Yarboi, ordered published November 16, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment for the defendant district, its principal, and its assistant principal.  The plaintiffs' decedent, a high school student, suffered from Tourette's Syndrome, sensory integration disorder, and borderline Asperger's Syndrome.  He was in a virtual school program, and attended the high school physically during only two periods.  In one of his classes, several students bullied and harassed the decedent.  The decedent reported one student for harassing him and calling him names.  Both students signed a "no contact" contract agreeing not to have contact with each other.  The day after summer break began, decedent took his own life.  The decedent's parents alleged that the administrators had negligently failed to address and prevent student bullying of the decedent, which caused the decedent to commit suicide; and that the school was vicariously liable for their conduct.  The trial court granted summary judgment on the ground that the administrators did not breach their duties to the decedent, and on the ground that Education Code section 44808 immunized the district and administrators from negligence liability.

The appellate court affirmed the summary judgment on the ground of immunity.  Section 44808 immunizes school districts and their employees from liability for the conduct or safety of students when students are not on school property, unless the district or person has undertaken to provide transportation or a school-sponsored activity, or has otherwise specifically assumed responsibility or liability for off-campus activities.  There is an except for failure to exercise reasonable care under the circumstances.  The plaintiffs asserted that the district and administrators failed to exercise reasonable care under the circumstances.  They argued that the immunity did not cover negligent failure to protect a student from bullying on-campus that led to the student's off-campus suicide.  But the weight of authority holds that 44808 immunize districts and employees from liability for student safety outside school property unless the student was or should have been directly supervised during a specific undertaking.  The provision concerning reasonable care refers to failure to exercise reasonable care during one of the undertakings.  Because the decedent committed suicide off-campus during summer break in his home, while he was not and should not have been supervised by any district employee, and no one at the district had assumed responsibility for his well-being, the district and its administrators were immune from liability under section 44808.

Officers Did Not Violate Clearly-Established Law by Accepting Arrestee's Representations about Her Health

In J.K.J. v. City of San Diego, published November 15, 2021, a divided panel of the 9th Circuit Court of Appeals dismissal of a complaint against defendant city and officers.  The defendant officers stopped a car with an expired registration.  The decedent was riding in the car as a passenger.  The officers questioned the decedent, who was coherent and showed no signs of distress.  The officers learned there was an outstanding arrest warrant for the decedent involving a prior methamphetamine offense.  They handcuffed her and put her in their vehicle.  The officers searched the stopped car and found a saran-like plastic commonly used for narcotics sales.  They found no drugs.  Inside the police cruiser, the decedent vomited.  One of the officers called for paramedics.  The officers asked decedent if she was detoxing or withdrawing.  The decedent replied, "No," and stated that she was sick, her stomach was turning, and that she was pregnant.  One of the officers called off the paramedics.  An officer asked if she ate something.  She shook her head and said, "Mmm-mm."  The officers began the hour-long drive to the police station.  En route, the decedent told the officers she did not want to go to jail; requested water and a bathroom break; and groaned and screamed on several occasions.  At one point, she screamed for help.  One of the officers asked her what was going on.  She remained silent for ten minutes.  The officers stopped the car to check on her.  An officer opened the door and told her she needed to stay awake.  When she screamed she needed help, the officers told her to knock it off and that she was fine.  On arrival (about three minutes after that incident), decedent was lying face down across the backseat.  She screamed and breathed rapidly.  One of the officers told her to stop hyperventilating.  The officers removed the decedent from the cruiser to the pavement, and fingerprinted her as she lay on her side.  The officers asked if she wanted water, and she requested water.  They returned her to the cruiser.  Eleven minutes later, decedent had fallen unconscious.  The officers immediately removed her from the car, called paramedics, and performed CPR.  Decedent fell into a coma and died.  The plaintiff, decedent's child, alleged decedent died from an overdose.  The plaintiff sued under 42 U.S.C. section 1983 for denial of medical care under the Fourth Amendment, denial of due process, and Monell liability for the city.  The district court granted the motion, ruling that the complaint failed to state a plausible claim for denial of medical care; that the officers were entitled to qualified immunity; and that the complaint failed to state a Monell claim against the city.

The panel majority agreed with this rulings.  It affirmed the district court's decision to consider a publicly-available video of the incident that was incorporated into the complaint by reference.  Where the complaint makes conclusory allegations contracted by a document incorporated by reference into the complaint, the court may decline to accept the conclusory allegations as true.  The district court properly limited its consideration of the video according to this rule.  The district court properly dismissed the Monell action.  Although the complaint alleged failure to train, it failed to allege facts showing a failure to train caused this incident.  Instead, the complaint alleged that the officers departed from their training.  For the defendant officers, the appellate court ruled that they were entitled to qualified immunity on both prongs.  On the first prong, the facts alleged in the complaint failed to show the objective reasonableness that would be necessary to state a claim for denial of medical care under either the Fourteenth Amendment (due process) or the Fourth Amendment (excessive force).  The officers' actions--including taking the arrestee's representations about her status at face value--were objectively reasonable under the circumstances.  Arguments that the officers should have concluded the decedent had ingested drugs, and that she was not pregnant, were merely exercises of 20-20 hindsight.  The test is whether the officers acted reasonably under the circumstances.  On the second prong, the plaintiff was unable to identify any precedent that clearly established under similar circumstances that the officers' actions violated the requirement to provide a detainee or arrestee with medical care.

A judge, dissenting in part, opined that the complaint stated a plausible case against at least one of the officers for failing to take action in light of an acute medical emergency.

Because the Treble Damages Award for Cover-up of Childhood Sexual Assault Is Primarily Punitive in Nature, Government Code section 818 Bars Treble Damages Awards against Public Entity Defendants

In X.M. V. Superior Court (Hesperia Unified School District), published September 16, 2021, the Fourth District Court of Appeal, Division 2 agreed with Los Angeles Unified School Dist. V. Superior Court (currently being reviewed by the California Supreme Court) and held that the treble-damages provision of Code of Civil Procedure section 340.1 for cover-up of childhood sexual abuse is barred by Government Code section 818, which immunizes public entities such as school districts from punitive damages.  Because by definition they are in addition to compensatory damages, treble damages are generally deemed punitive.  The exceptions are where the legislature intended the provision to be primarily compensatory, or where there is a complex situation that renders compensatory damages an incomplete compensatory remedy.  The court found that the announcements of legislative intent behind the treble damages provision could be read as making sure that victims of cover-up are fully compensated, or they might be read as intending the treble damages to be punitive.  Comparing the treble damages provision in section 340.1 to treble damages provisions that were found not to be primarily punitive, the court determined that the primary purpose of the treble damages provision is punitive.  It is therefore barred as against public entity defendants.

Constructive Notice Standard for Defect in Alley Is Different from Standard for Sidewalk Defect

In Martinez v. City of Beverly Hills, published November 10, 2021, the Second District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant city.  The plaintiff tripped and fell when her rubber flipflop edge hit the edge of a drainage swale in the alley through which she walked.  The asphalt that was normally flush against the edge of the swale had worn away, creating an approximately 1.75" divot.  The divot had been there for at least two years.  The city has an inspection program under which it hires a contractor every two years to inspect the city's streets and alleys and prepare a report spelling out the condition of the alley or street, which the city uses to prioritize resurfacing projects.  The project is not to identify specific divots.  The city will also inspect and if warranted repair any potential hazards in response to user calls.  The city had not inspected this alley since at least seven years before the accident.  In the six years before the accident, the city had received no complaints or work orders concerning this divot.  The year before the accident, the city received a user call reporting a large indentation in the alley.  A city crew went to the alley to repair the indentation, and filled three large potholes.  The crew did not repair the divot.  Per the supervisor, if the crew had seen the divot, it would have done nothing to fix it because the size was insignificant and the material used to patch the potholes cannot be used for small divots.  The trial court granted summary judgment on the ground that the city had no actual or constructive notice of the divot.

The appellate court agreed that summary judgment was appropriate on the notice issue.  It found no triable issue of fact on whether the city had actual notice.  It rejected the argument that every possible city employee who may have been in the alley in the past had to present a declaration denying knowledge of the divot.  In light of the supervisor's declaration that the crew that fixed the potholes that the crew would have taken no notice of the divot because it was too insignificant, any inference that employees who did not present declarations would have noticed the divot was not reasonable.  To prove constructive notice, the test is whether the defect was sufficiently obvious under the circumstances.  Under Government Code section 835.2, the test for obviousness includes considering whether the property was safe for intended or actual known uses of the property.  While sidewalks are intended for persons to walk on, alleys are intended for vehicle use and only occasional pedestrian use.  Public policy warrants requiring more rigorous scrutiny of sidewalks for defects than alleys.  Because alley surfaces degrade far more quickly than sidewalk surfaces, due to use by heavy vehicles, the cost of keeping alleys safe for pedestrians is higher than for sidewalks, and the likelihood of injury to pedestrians is lower.  Public entities may therefore reasonably elect to apply less rigorous scrutiny for defects as compared to sidewalks.  The divot here was therefore, as a matter of law, not sufficiently obvious to create constructive notice.

Under Evidence Code Sections 1106 and 783, "Sexual Conduct" include Sexual Abuse

In Doe v. Superior Court (Mountain View School District), published October 29, 2021, the Second District Court of Appeal, Division 2 denied a writ petition challenging a trial court's decision to allow the defendant school district to present evidence of a plaintiff student's past sexual abuse.  The plaintiff sued the school district for allegedly negligently supervising a fourth-grade teacher who molested the plaintiff in 2010 and 2011.  The district sought to introduce evidence that a family friend sexually abused the plaintiff in 2013.  The plaintiff moved in limine to exclude the evidence under Evidence Code sections 1106 and 352.  In civil actions alleging sexual misconduct, section 1106 bars evidence of specific instances of the plaintiff's sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff.  An exception to the bar is evidence admissible under Evidence Code section 783, which allows evidence of sexual misconduct by the plaintiff offered to attack the credibility of the plaintiff if the court (in a motion proceeding described by the statute) concludes the evidence is relevant and is not barred under Evidence Code section 352 (requiring evidence be more probative than prejudicial).  The district filed a motion for admission of the evidence under section 783.  The trial court ruled that neither section 1106 nor section 783 applied, because "sexual conduct" was limited to voluntary sexual misconduct.  The court then ruled the evidence was not barred by section 352.

The appellate court concluded that the trial court erred in interpreting sections 1106 and 783 to exclude involuntary sexual conduct.  Section 1106 was intended both to exclude evidence of a civil plaintiff's character trait for promiscuity, and to encourage civil complainants to bring lawsuits without fear of having the sexual aspects of their lives scrutinized.  The second, privacy-focused objective applies to both voluntary and involuntary sexual conduct.  Further, interpreting the statute not to apply to sexual abuse would lead to absurd results, such as allowing admission of evidence of all sexual conduct of a person under 18.  The weight of precedent in California and other states also interpreted "sexual conduct" to reach involuntary sexual conduct inflicted on a victim.  Although the trial court erred, the appellate court ruled that the error was not prejudicial, because the section 352 analysis the court conducted adhered to all but one aspect of the section 783 motion procedure.