Government Liability Update

Executive Orders Extended Deadline to Present Claims for Damages, but Not Deadline to Apply for Leave to Present Late Claim

In Coble v. Ventura County Health Care Agency, published December 29, 2021, the Second District Court of Appeal, Division 6 affirmed a trial court order denying a petition for relief from the claim requirements under Government Code section 946.6.  The petitioner’s claim against the county for alleged medical malpractice accrued on August 2, 2019.  The six month period for her to present a timely claim for damages expired on February 2, 2020.  She did not present a claim by that deadline.  On March 21, 2020, the Governor of California issued Executive Order N-35-20, dealing with the COVID-19 Pandemic.  Paragraph 11 of N-35-20 provides,  “The time for presenting a claim pursuant to Government Code section 911, et seq., is hereby extended by 60 days.”  By Executive Order N-71-20, issued June 20, 2020, the Governor extended these times by an additional 60 days.  Thus, the total extension is 120 days. According to Executive Order N-08-21, the 120-day extension applies to claims that accrued before June 30, 2021.  On September 15, 2021–more than a year after her claim accrued—the petitioner presented an application to the county for leave to present a late claim.  The county denied the application.  The petitioner then petitioned the trial court for relief from the claim requirements.  The trial court denied the petition on the ground that the petitioner had failed to present a late-claim application to the county within a year of her cause of action’s accrual.  The court rejected the petitioner’s argument that Executive Order N-35-20 had extended the deadline to present applications for leave to present late claims.

 

The appellate court agreed with the trial court’s interpretation of N-35-20.  Statutory rules of construction apply to executive orders.  The plain language of the order applies the order to the deadline to present claims—not the deadline to apply for leave to present a late claim.  Further, the executive order must be interpreted in the context of the overall statutory scheme.  The Government Claims Act statutory scheme clearly differentiates between “claims” and “applications.”  The two are not synonymous.  Had the Governor intended to extend the one-year deadline for presenting late-claim applications, he would have said so in the order.  Code of Civil Procedure section 1858 bars courts from redrafting statutes, or executive orders, to add in omitted language.  Further, the Governor’s inclusion of an extension of time only for claims implies the exclusion of other extensions of deadlines, such as applications.  Finally, interpreting the order to apply to claims but not to applications would not lead to absurd results.  A claimant who misses the claim deadline can apply for relief.  By contrast, the deadline for the late-claim application is jurisdictional, and missing it puts the claimant out of court.

 

The appellate court further ruled that the petitioner had waived her challenge to the trial court judge (on the ground that the judge had previously been with county counsel) because at the beginning of the hearing the judge announced that fact, and the attorney representing the petitioner did not object either at that time or before the judge adopted her tentative ruling as final.

Because Parole Agents Did Not Enter into Special Relationship with Victim Murdered by Her Parolee Grandson, Their Employing Agency Could Not Be Held Liable for Negligence

In Russell v. Department of Corrections and Rehabilitation, published December 16, 2021, the Third Appellate District reversed a trial court’s denial of judgment notwithstanding the verdict after a jury trial.  The plaintiff was the son of a woman who was raped and murdered by her grandson, a parolee who suffered from severe mental illness and substance abuse.  The victim had raised the grandson and treated him like a son.  One of the defendants was the grandson’s parole agent from 2007 to 2012, and the other was the parole agent from 2012 to the month of the victim’s murder in 2013.  From 2007 to 2011, the grandson lived with the victim while the grandson was on parole.  The first parole agent and the victim interacted at least twice a month and were friendly.  The agent authorized the grandson living at the victim’s house.  He regularly drug tested the grandson, assisted the victim by ordering the grandson to obtain mental health treatment when he appeared unstable, and agreed to help the grandson find his own place to live.  He advised the victim not to give the grandson all of his Social Security money at once, so that he would have enough money through the month.  In 2011, the grandson was arrested for sex crimes.  In 2012, the grandson was released from state hospital.  He went to stay with the grandmother at her house.   When the second parole agent took over the case, the grandson was homeless, and the grandmother wanted him to stay at her home.  The parole agent informed them that they could not live together, because the house was too close to a school and the grandson was a registered sex offender.  The agent eventually told her that the grandson could be at her home during the day, but had to leave at night.  There was disputed evidence the agent  promised the grandmother that he would find the grandson his own place to live.  The grandson repeatedly absconded and cut off his GPS tracking device.  At one point, the grandson was arrested at the victim’s house by a fugitive apprehension team.  The grandmother was allowing the grandson to live with her.  In late 2012 or early 2013, the grandmother called the agent and told her the grandson was “acting out,” and that the grandmother had had to pull a knife on him. In February 2013, the grandson was jailed and released.  Three days later, the grandson killed the grandmother.  The plaintiff sued the Department of Corrections and the parole agents for negligence.  At trial, the court instructed the jury to determine whether the agents were in a special relationship with the grandmother.  The jury found a special relationship existed, that the agents breached a duty of care to the grandmother, and that the breach caused the rape and murder.  The jury apportioned 60% fault against the Department.  The trial court denied the Department’s JNOV motion.

The Court of Appeal ruled that the trial court had erred in submitting the issue of whether a special relationship existed to the jury.  A person does not owe another person a duty to warn or protect against a third party’s acts unless there exists a special relationship between the parties (or between the defendant and the third party) or some other set of circumstances giving rise to an affirmative duty.  Whether a duty exists is an issue of law for the court, not an issue of fact for the jury.  Although the Department did not object to the special relationship instruction to the jury, a party does not forfeit application of the proper standard of review by failing to object in the trial court.  Further, the Department stated in briefing that the duty issue was one of law.  The appellate court therefore examined the evidence de novo to determine whether a special relationship existed, viewing the facts in the light most favorable to the plaintiff.  The court determined that neither agent formed a special relationship with the grandmother that would have given rise to a duty to warn her of the grandson’s dangerous propensities.  Neither agent made an express or implied promise of protection to the grandmother that caused her to detrimentally rely on the promise.  Neither agent lulled the grandmother into a false sense of security, inducing detrimental reliance and causing her to worsen her position.  Neither created a foreseeable peril to the grandmother that was not readily discoverable by the grandmother.  The court therefore reversed the judgment. 

Agency Has Burden of Establishing Documents Demanded in Public Records Request Are Exempt from Production

In Getz v. Superior Court (County of El Dorado), published December 13, 2021, a divided panel of the Third District Court of Appeal reversed in part and affirmed in part a trial court decision denying writ relief in a California Public Records Act case.  The petitioner requested from the real party county records between the county and any other party concerning a planned development.  The county produced an index of responsive documents, including e-mails, on a CD with hyperlinks to the texts of the e-mails or documents.  Believing he had not received all of the documents he sought, the petitioner submitted a new CPRA request, seeking all e-mails between any county department and anyone at four e-mail domains over a five-year period.  The county notified the petitioner it had located approximately 47,000 responsive e-mails, of which over 42,000 were newly identified.  The county asked the petitioner to refine his request to allow for a more focused search and to allow the county to review the responsive records before production.  The petitioner declined.  One of the domains was for a law office with which the county counsel worked.  The county produced an index of the 42,000 new emails (without hyperlinks) and asked the petitioner to narrow his focus.  He declined.  The petitioner also submitted a request to the county for all records in connection with the District Attorney's efforts to review an alleged misdemeanor by the petitioner.  The petitioner had never been charged, and the statute of limitations had run out.  The county declined to produce the documents, asserting they were exempt from production under Government Code section 6254(f) as law enforcement investigatory files and records.  The petitioner sought a writ compelling the county to respond further to his CPRA requests for the e-mails and investigatory files.  The trial court denied the petition as to the e-mail request on the ground the request was overbroad.  It denied writ relief as to the investigatory files on the ground they were exempt.

The appellate court majority ruled that the trial court's finding that the e-mail request was overbroad and burdensome was not supported by substantial evidence.  Because the county had identified the responsive documents and indexed them, the evidence established that the records could be located with reasonable effort and the volume was not unmanageable.  Although the county contended that it would have to search the e-mails to confirm they were public records, there was no evidence before the trial court that the county's e-mail exchanges with the requested domains would contain anything but information regarding the county's business with the entities at those domains.  The county did not provide evidence that the e-mails would contain personal information.  Further, the county had failed to provide sufficient evidence to require review of the e-mails to determine whether any exemptions from the CPRA would apply.  Although the county submitted evidence that e-mails exchanged with the law firm might contain attorney-client information protected under the common interest doctrine, that did not support a claimed need to review all of the indexed e-mails--only those relating to the litigation at issue, which might be identified by sender, recipient, and subject matter line.  The county must make some showing that exempt or privileged information exists in the records requested, especially where that seems unlikely.  Public agencies can reduce the potential burden by identifying and segregating potentially exempt records when they are created.

One justice dissented from this holding.  He opined that the burden on the county clearly outweighed the public interest underlying the request.

The court unanimously affirmed the trial court's ruling that the investigatory documents were exempt from disclosure, since the exemption applies after the investigation has closed.

Water Utility Did Not Create "Public Use" by Installing Water Main on Private Property, and Is Entitled to Fire Protection Immunity for Rupture of Main

In Foley Investments, L.P. v. Alisal Water Corp., published December 9, 2021, the Fourth District Court of Appeal, Division 1 affirmed judgment in favor of a water utility entered after a bench trial.  The utility's usual practice is to run a service line from one of the utility's mains to a meter at the property's boundary, from which point the property owner is responsible for running service lines tot he property.  Because the fire marshal required the owner/developer of an apartment complex to install two fire hydrants on interior portions of the property, the developer and utility entered into a contract under which the utility would install a main on the complex's property.  The utility did not take the land for the main by eminent domain; instead, the developer granted the utility an easement.  The main terminated at a gate valve on the private property.  Opening one side of the gate valve would cause water to flow through the utility's entire system.  But for 32 years, that valve was not opened. Because the fire hydrants were located inside the property, they would not be used to fight fires in neighboring properties. The utility billed only the property owner, not the 400 tenants on the property.  The main ruptured, causing extensive damage to the apartments.  The owner sued the utility for inverse condemnation and various tort claims.  The trial court found that the utility could not be held liable for inverse condemnation, because the main was not a "public use."  It then held that the utility was immune from tort liability under Utility Code section 774's fire protection immunity.

The appellate court agreed that under the circumstances, the main was a private use, rather than a public use.  The main was installed by contract and easement, not eminent domain, for the exclusive use of the apartment complex.  That the gate valve could be opened and used for the rest of the utility's system was not sufficient to transform it into a public use, in light of the fact that it had not been opened in 32 years.  Further, the main was installed to supply fire protection equipment--the fire hydrants--and so was covered by the fire protection immunity.  The fact that the main was also used for other purposes did not eliminate the immunity; other immunity statutes have been applied to property that was used for both immunized and non-immunized purposes.

Officer Entitled to Qualified Immunity for Enforcing Separation of Protesters and Counterprotesters

In Saved Magazine v. Spokane Police Department, published December 9, 2021, the 9th Circuit affirmed summary judgment in favor of a police officer and the city that employed him.  At a library's children's book reading event called "Drag Queen Story Hour," the police separated protesters and counterprotesters into separate zones near the library.  The plaintiff, wearing a press badge, identified himself to police as a member of the press.  The defendant officer escorted the plaintiff to the entrance of the library, and warned him he would be subject to arrest if he stated "engaging people" or caused "a problem," but that he could "act as the press and report on" the event.  The plaintiff alleged that he was assigned a police detail to accompany him through a crowd of counterprotesters out of concern he was "fake press."  The defendant officer allegedly alerted all units that the plaintiff had been arrested at a previous protest, and would be allowed to move freely through the event until he started causing problems; and that the plaintiff had been warned that he was subject to arrest if he did so.  While the plaintiff was walking through the counterprotesters, he answered questions from a counterprotester.  An officer then told the plaintiff he was not exercising his press rights, but engaging a protester.  The plaintiff stated he wanted to walk through the counterprotesters, and the officer directed counterprotesters to get out of the way and let the plaintiff walk through the zone.  The plaintiff sued the city, the police department, the defendant officer, and others, alleging violation of his First Amendment rights. 

The court of appeals ruled that the district court had correctly granted the officer summary judgment based on the second prong of qualified immunity--that the defendant's actions did not violate clearly established law.  No precedent established that a police officer violated an individual's First Amendment rights by enforcing a city's establishment of protester and counterprotester zones, particularly since the plaintiff did not allege the separation itself was unconstitutional.  The claim against the city failed because the plaintiff had failed to plausibly allege a custom, policy, or practice of the city that led to a constitutional violation.

Subjective Deliberate Indifference Standard Applies to Fourteenth Amendment Claim against School Employee Who Fails to Protect Student from Injury

In Herrera v. Los Angeles Unified School District, published December 1, 2021, the 9th Circuit Court of Appeals affirmed summary judgment granted to the defendant district, a school aide, and other defendants in a 42 U.S.C. section 1983 suit.  During a tenth-grade party at a park, a student told the defendant aide that he was going to the park's swimming pool.  Three lifeguards monitored the pool.  The aide watched the student from a designated observation area.  The aide allegedly knew that the student had asthma and could not swim.  The aide saw the student exit the shallow end of the pool and enter the locker room area.  The aide left the observation area to wait for the student to exit the locker room.  Instead of changing, the student returned to the pool.  Five minutes later, the aide searched for the student and found lifeguards attempting to resuscitate the student, who had drowned.  The student's parents brought suit.

The court of appeals analyzed whether the aide had violated the student's Fourteenth Amendment rights by affirmatively placing the student in danger by acting with deliberate indifference to a known or obvious danger.  Deliberate indifference generally requires that the defendant subjectively recognize the unreasonable risk and actually intend to expose the plaintiff to that risk without regard to the consequences to the plaintiff--to know that something is going to happen but ignore the risk and expose the plaintiff to it.  The 9th Circuit departed from that standard when holding a pretrial detainee can state a due process violation for a government official's failure to act under an objective deliberate indifference standard.  That objective standard has also been applied in excessive force and detention cases.  But the panel here held that, based on precedent, the subjective deliberate indifference standard applied to this failiure-to-protect case, which did not involve a pretrial detainee or excessive force.  Under that standard, considering that the aide protected the student's privacy and independence by not following him into the locker room, and that the pool was guarded by three lifeguards, a reasonable jury could not conclude that the aide acted with deliberate indifference.

School District Administrators Have Duty to Act Reasonably to Protect Students from Molestation Regardless of Actual Knowledge of Molestation, but Cannot Be Held Liable under Mandatory Reporter Statute absent Actual Knowledge

In Doe v. Lawndale Elementary School District, published November 30, 2021, the Second District Court of Appeal, Division 7 reversed in part and affirmed in part summary judgment granted to the defendant district.  A music instructor groomed and then sexually assaulted the plaintiff, then 13, by engaging in a sexual relationship with her.  The plaintiff did not provide any evidence that district administrators had actual knowledge of the instructor's activities toward the plaintiff, or that he had previously engaged in sexual misconduct with minors or had a propensity to do so. But several students provided evidence that the behavior of the two indicated that they were having a relationship.  The trial court granted summary judgment on the plaintiff's negligence cause of action.   It concluded that the district did not have a duty to protect the plaintiff from sexual abuse unless it knew the instructor had previously engaged in sexual misconduct or had a propensity to do so, and because the instructor's outward conduct toward the plaintiff was "ambiguous."  The trial court further ruled that the plaintiff could not recover on her cause of action for breach of the mandatory duty to report suspected abuse under the Child Abuse and Neglect Reporting Act (CANRA), Penal Code section 11164, because none of the district's employees knew or reasonably suspected the sexual assault occurred.

The appellate court ruled that the trial court's analysis of the duty issue regarding the negligence cause of action was erroneous.  The law established that the district's administrators were in a special relationship with the district's students that imposed a duty of care to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee's history of committing, or propensity to commit, such abuse.  The duty includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties, including a teacher's sexual assault.  The district was vicariously liable for its employees' negligence.  Once a court determines a defendant owes a duty to a plaintiff, the questions of breach and causation are usually questions for the jury.  The exception is where the Rowland v. Christian policy factors establish that a category of cases should be exempted from the general rule of duty.  The appellate court applied the Rowland factors, and determined that molestation cases where the district administrators lack actual knowledge of an employee's sexual abuse or propensity should not be excluded from the general duty to take reasonable measures to protect students from molestation.  The court disagreed with language in multiple cases that might be interpreted otherwise, pointing out that several predated the 2019 California Supreme Court case of Brown v. USA Taekwondo which established the analysis to apply when determining the existence of a duty of care.  The court reversed summary adjudication as to the negligence claim.

But the court also determined, as a matter of first impression that the CANRA cause of action, based on interpretation of the statutory scheme, required that a plaintiff prove it was objectively reasonable for a mandated reporter to suspect abuse based on the facts the reporter actually knew, rather than facts the reporter reasonably could have discovered.  The court therefore affirmed summary adjudication of the CANRA cause of action.

Divided En Banc Panel Upholds California's Limitation on Large-Capacity Magazines

In Duncan v. Bonta, published November 30, 2021, a divided en banc panel reversed a grant of summary judgment to plaintiffs challenging the State of California's amendment of Penal Code section 32310 to prohibit possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition.  The ban exempts certain persons, such as law enforcement officers, security guards, and makers of props for film.  Owners of large-capacity magazines are required to remove the magazine from the state, sell it to a licensed arms dealer, or surrender the magazine to a law enforcement agency for destruction.  The plaintiffs challenged the statute as violating the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Due Process Clause.

Addressing the Second Amendment challenge, the en banc panel majority applied the two-step framework set forth in the U.S.U.S. Supreme Court's decision in District of Columbia v. Heller.  Under the framework, the court first determines whether the challenged law affects conduct that the Second Amendment protects; if so, the court determines the level of scrutiny to apply.  The court assumed (without deciding) that the Second Amendment's protection applied.  Joining other circuits, the court applied an intermediate level of scrutiny, because the ban imposed only a minimal burden on the Second Amendment right to keep and bear arms.  Under that scrutiny, the majority held that the statute was a reasonable fit for the important government interest of reducing gun violence.  The statute did not outlaw any weapons.  The majority further determined that the limitation interferes minimally with the core right of self-defense, due to lack of evidence anyone had been unable to defend home and family due to the lack of a large-capacity magazine.  The majority also determined that the limitation saved lives, since in the past half-century large-capacity magazines have been used in most shootings with 10 or more deaths and in 100 percent of shootings with 20 or more deaths.  More than twice as many people have been killed or injured in mass shootings involving large-capacity magazines compared with those involving smaller-capacity magazines.  The ban therefore reasonably supported California's efforts to reduce the damage caused by mass shootings.  The majority further ruled that the statute on its face does not effect a taking, because the government acquires nothing by limiting magazine capacity, and because owners may modify or sell their nonconforming magazines they are not deprived of all economic use of the magazines.  The due process claim essentially restated the takings claim, and failed for the same reason.

Three dissenting judges opined that the court should apply an analysis based on the text, tradition, and history of the Second Amendment, rather than the tiers-of-scrutiny approach.  Under that analysis, the dissenters opined, the long history of use of large-capacity magazines (including use at the time the nation was founded), the fact they number in the millions, and the lack of longstanding prohibitions against them establish they are entitled to Second Amendment protection.

Another dissenting judge opined that Ninth Circuit case law, including this case, showed a distrust of gun owners and did not accord proper protection to Second Amendment rights.