Government Liability Update

HIgh School Owed Duty of Care to Student Stabbed on Campus After Hours

In Achay v. Huntington Beach Union High School Dist., published June 28, 2022, the Fourth District Court of Appeal, Division 3 reversed summary judgment for the defendant school district.  The plaintiff, a 10th grader, was on the school track team.  Her last class ended at 2:30 p.m. Between 2:30 p.m. and 10 p.m., the public could come onto campus freely.  The plaintiff usually had track practice on campus between 3-5:30 p.m.  One day, track practice ended at 4:30 p.m.  The plaintiff and a friend walked to a nearby Starbucks at left at 5:00 p.m.  They walked back to campus to retrieve their schoolbooks from the girls' locker room.  As they walked back, they encountered a stranger on roller blades, who taunted them.  When they returned to the school campus at 5:15 p.m., the stranger was in the parking lot, talking with students.  The students went to the locker room, which was customarily not locked until 6 p.m.  They went to an inner locker room with a lockable door, because they did not feel safe.  Eventually, they went to the school parking lot to be picked up by the plaintiff's friend's mother.  They passed the school swimming pool where practice was taking place.  After they passed the pool, the stranger roller bladed behind the plaintiff and stabbed her in the back, seriously injuring her.  The plaintiff sued the school for breaching a duty to provide security for students.  The district moved for summary judgment on the grounds that the school district owed her no duty of care, and that there was no causal connection between the alleged negligence and the swift, unpredictable attack.  The trial court granted summary judgment.

The appellate court held that the school district owed the plaintiff a duty of care.  School personnel owe students under their supervision a protective duty of ordinary care, including the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties.  Schools have a general duty to supervise the conduct of children on school grounds during school activities.  The appellate court ruled that the District owed the plaintiff a duty of care because she was stabbed while she was on campus during school-related activities, after-school sports.  The district argued its duty to protect the student ended when her track practice was over and she left campus for 45 minutes.  But the incident occurred on school grounds, during ongoing after school sports activities (the swim practice was ongoing nearby).  That she left campus briefly and returned to be picked up made no difference.  Because the plaintiff's track practice usually lasted until 5:30 p.m. and the locker room was open until 6:00 p.m., it was reasonably foreseeable that a student would leave campus briefly, return to pick up schoolbooks, and walk to the school parking lot to be picked up.  All was part of the school activity.  As for causation, the facts that the campus was open after 2:30 p.m., after-school activities continued on campus after that, and the plaintiff and her friend were fearful about the assailant being on campus raised a triable issue of fact on whether the presence of security the girls could have summoned would have prevented the attack.

Use of Police Car As Roadblock for Fleeing Bicyclist Did Not Violate Clearly-Established Law

In Seidner v. De Vries, published June 30, 2022, a divided panel of the 9th Circuit Court of Appeals reversed a district court's denial of summary judgment based on qualified immunity in a 42 U.S.C. section 1983 case based on alleged use of excessive force.  The plaintiff was riding his bicycle on a well-lit street without a front light, in violation of state law.  The defendant officer pulled his car ahead of the plaintiff to confirm the violation, and activated his lights.  As the officer stepped out of his car to talk to the plaintiff, the plaintiff continued pedaling past the officer and began to flee.  The officer got back into the car and pursue the bicyclist, who was traveling around 15 miles per hour.  The officer accelerated, pulled his car at an angle across the street, and stopped.  As the officer started to step out of the car, the plaintiff's bicycle crashed into the car.  The plaintiff was injured.  The plaintiff sued the officer for use of excessive force.  The district court denied the officer's motion for summary judgment, ruling that a jury could find the use of force excessive and that the law clearly established that the conduct could constitute excessive force.  The officer brought an interlocutory appeal.

The panel majority ruled that the officer was not entitled to summary judgment on the first prong of qualified immunity (whether the officer violated the right at issue) but was entitled to summary judgment on the second prong (whether the law was clearly established).  On the first prong, under the circumstances, the officer used an intermediate level of force in setting up a roadblock in front of a fleeing bicycle, particularly since the bike crashed into the car rather than the car hitting the bike.  The government's interest in using force for a minor bicycle violation was low, but once the plaintiff started fleeing, the government had an interest justifying some use of force to stop him from fleeing despite how the incident arose.  To conclude otherwise would hamstring law enforcement officers in trying to hold suspects on bikes accountable for unlawful conduct.  Under the circumstances, the court cannot say as a matter of law that a jury would be compelled to find the way the officer used his car to stop the bicyclist reasonable.  There was therefore an issue of fact on reasonableness that prevented summary judgment on the first prong.  On the second prong, there was no law at the time of the incident that put beyond debate that the officer's use of his car as a roadblock for a bicyclist under similar circumstances would be excessive force.  The law was therefore not clearly established, and the officer was entitled to summary judgment based on qualified immunity.

One judge concurred that the officer was entitled to qualified immunity on the second prong, but would hold that the use of force was excessive.

Because Sheriff Was Not Employee of County, Report of Investigation Commissioned by County of Complaint against Sheriff Is Not a Personnel Record Exempt from CPRA

In Essick v. County of Sonoma, published June 29, 2022, the First District Court of Appeal, Division 4 affirmed a trial court's denial of a preliminary injunction in a reverse-CPRA case.  A county supervisor lodged with the county administrator a harassment complaint against the county sheriff.  The county administrator, HR director, and chair of the board of supervisors retained a private law firm to conduct an impartial investigation.  After the report was rendered, the board of supervisors gave the sheriff a Formal Notice of Outcome of Investigation.  A newspaper requested the investigation report under the California Public Records Act.  The county informed the sheriff that it had received the request and intended to release the report.  The sheriff's attorney objected to the proposed release on the ground that the investigation report was a personnel document protected from disclosure under the Pitchess statutes, particularly Penal Code section 832.7.  The county disagreed.  The sheriff brought a complaint for declaratory and injunctive relief requesting the court bar the release of the report.  The trial court issued a temporary restraining order, then denied the requested preliminary injunction, ruling there was no evidence to show the investigative records should be classified as "personnel records" under section 832.7.  The sheriff appealed.

The appellate court agreed with the trial court.  The issue is whether Government Code section 6254, subdivision (k) exempted the report from production under the CPRA.  Subdivision (k) incorporates other disclosure prohibitions established under law, including the Pitchess statutes protecting officer personnel records.  The report was not a personnel record, because the county was not the sheriff's employer.  Although the county has chosen to pay its elected officials, under the California constitution the sheriff is a public official elected by the voters, and is ultimately responsible to them, rather than the county board of supervisors or anyone else in county government.  The board of supervisors cannot hire, fire, or discipline the sheriff.  The county's investigation of the sheriff does not make him the county's employee.  The report was the product of an independent outside inquiry.  That the county promised the sheriff the investigation would comply with the Peace Officers' Bill of Rights did not estop the county from releasing the report, because POBRA does not contain any provisions exempting documents from production under the CPRA.

In Split of Authority, Appellate Court Holds That Claimant Can Argue Actual Claim Compliance in Government Code Section 946.6 Petition for Relief from Late Claim

In Simms v. Bear Valley Community Health Care District, published June 28, 2022, the Fourth District Court of Appeal, Division 2 reversed an order denying a Government Code section 946.6 petition for relief from the claim requirements and dismissing the case.  The respondent is a local health care district.  On December 8, 2017, the plaintiff was injured and sought treatment at the district’s emergency room.  In December 2017 and January 2018, he went to appointments with several district providers to obtain additional treatment.  He verbally complained about his treatment on December 26, 2017 and January 26, 2018, alleging the providers were refusing to investigate and treat his complaints because they perceived him as trying to obtain drugs on false pretenses.  The district responded to the complaints with a January 30, 2018 letter.  Appointments in March and April 2018 also did not meet the plaintiff’s expectations.  On April 24, 2018, the District sent plaintiff a “formal notice” that it would no longer serve as his primary care provider.  On May 13, 2018, the plaintiff sent the district a letter, framed as a response to the January 30, 2018 letter.  In the letter, he complained about his treatment.  He demanded all references to “drug seeking behavior” be removed from his medical records, and that he receive a written apology from one doctor.  He threatened that if he continued to be “defamed, harassed, mistreated, and ignored” by the district, he would “take his concerns to a higher level” by “filing a lawsuit for restitution.”  The district did not respond to this letter.  On July 11, 2019, Simms sent the district a letter framed as a Code of Civil Procedure section 364 notice, addressed to the same District employee as the May 2018 letter.  In this letter, the plaintiff wrote he intended to file a medical malpractice suit against the district.  He represented that in July and September 2018 he had received results of MRI scans that revealed spinal injuries from the 2017 fall that the district had failed to diagnose, resulting in further damage and delay of treatment.  He also complained of withdrawal symptoms from failure to prescribe medications.  The district treated this letter as a claim under the Government Claims Act.  It responded with a Notice of Return of Late claim.  On July 30, 2019, the plaintiff applied to the district for leave to present a late claim.  The district denied it on August 20, 2019.  On November 18, 2019, plaintiff petitioned the trial court under Government Code section 946.6 for relief from the claim requirement.  The court denied the petition.  It ruled that the May 2018 letter did not comply with the Government Claims Act’s requirements, and could not be deemed either a claim or a defective claim.  It further found that the plaintiff had failed to show entitlement to relief.

The appellate court ruled that the trial court should have treated the plaintiff’s May 2018 letter as a defective claim; the district had waived any defect by failing to timely serve a Notice of Insufficiency; and therefore the trial court should have allowed the plaintiff to proceed with a lawsuit alleging causes of action encompassed by that claim.  The court acknowledged the split of authority among appellate courts on whether a party could assert in a section 946.6 petition that the claimant had actually submitted a timely claim, or whether the argument could only be made in a subsequent lawsuit.  The court decided that it would side with the courts allowing a petition to show actual compliance, so long as the issue did not depend on disputed issues of fact that would have to be submitted to a jury.  Where raised in an appeal from a claim-relief proceeding, after having been argued fully in the trial court and submitted on appeal without reservation or argument that the issue remains pending below, the issue of actual compliance is properly addressed on appeal. The court further observed that the notices a public entity is statutorily required to send to a claimant whose claim is untimely, or whose late-claim applications are denied, are inaccurate for claimants who actually submitted a timely claim, in that they advise the claimant that the “only recourse” is to follow the late-claim procedure.  The issue of whether the plaintiff’s May 2018 letter qualified as a claim, or as a “claim as presented” or “trigger claim” that triggered the district’s duty to respond with a Notice of Insufficiency, is an issue of law the appellate court reviews de novo.  The letter communicated that he felt he had compensable claims for defamation and medical malpractice against the district, and that if it was not settled he would bring a suit for restitution—i.e., damages.  It therefore qualified as a “claim as presented,” and the district waived its defects by not sending a timely Notice of Insufficiency.  The district contended that the plaintiff’s cause of action did not accrue until the MRI scans he had after he sent the letter.  But his causes of action accrued when he sustained injury and suspected a negligent cause, which could have been as early as December 2017 or January 2018, when he orally complained.  The plaintiff failed to present a late-claim application within a year of accrual, which deprived the trial court of jurisdiction to grant him relief from the claim requirements.  But it did not deprive the court of jurisdiction to deem his claim actually timely.  The issue of whether the statute of limitations for filing suit had also passed.  Although the two-year statute of limitations under Government Code section 945.6(a)(2) would have expired by May 2020, the court deemed the statute of limitations equitably tolled as of January 10, 2020, when the trial court found the May 2018 letter was neither a claim nor a defective claim.  As of that date, the plaintiff was bound by claim preclusion from filing suit and arguing that he had complied with the claim requirement.  The tolling period would run through the remittitur on the appeal.  The appellate court directed the trial court to deny the petition for relief without prejudice to the plaintiff filing a complaint and proceeding with a lawsuit.

Claim for Fabrication of Evidence Does Not Require Evidence of Motive or “But For” Causation

In Richards v. County of San Bernardino, published June 24, 2022, the 9th Circuit Court of Appeals reversed summary judgment granted to the defendant county and a county investigator in a 42 U.S.C. section 1983 action.  The plaintiff was accused of murdering his wife.  The defendant investigator found, under the fingernails of fingers of the remains that had been severed after the autopsy (and that had been scraped for trace evidence) a visible blue fiber that matched a shirt the plaintiff had been wearing.  Two trials of the charges against the plaintiff ended with hung juries.  A third ended in mistrial.  Before the fourth attempt, the county retained a forensic odontologist who opined a bruise on the decedent’s hand (which the medical examiner had determined was not a bitemark) was a bitemark that was consistent with the plaintiff’s teeth.  Plaintiff spent 20 years in prison before a habeas corpus petition with new evidence (including the odontologist recanting his testimony) resulted in vacation of his conviction.  The plaintiff then sued various sheriff’s officers and the county for constitutional violations allegedly committed during the murder investigation and prosecution.  In particular, he alleged that the investigator had fabricated the blue fiber evidence, and that the county’s customs and policies resulted in the alleged constitutional violations.  The district court granted summary judgment for all defendants.  It found that the plaintiff did not carry his burden of showing any constitutional errors, and therefore could not prove the county’s Monell liability.

The court of appeals disagreed on those points.  It held that the district court erred in rejecting the deliberate fabrication claim on the grounds that the plaintiff was unable to point to evidence of a motive to deliberately manipulate the evidence; there were more plausible explanations for the late discovery of the fibers; and that the plaintiff had failed to prove causation.  There is a clearly established constitutional due process right not to be subjected to criminal charges based on false evidence deliberately fabricated by the government.  The district court erred in requiring the plaintiff to show evidence of motive.  While motive is potentially strong circumstantial evidence in support of a fabrication claim, it is never required.  The plaintiff had direct evidence of fabrication.  He therefore had no need to show motive.  The finding of a more plausible explanation of the fiber was error, because it resulted from the district court weighing the evidence.  The district court had to accept the plaintiff’s evidence as true without making credibility determinations or weighing the evidence.  Further, the plaintiff presented evidence from which a jury could reasonably infer that the fibers were not under the decedent’s fingernails at the time of the autopsy.  The district court also erred in concluding that the fiber evidence was not the “but for” cause of the conviction, in light of the bitemark.  Because of the fundamental due process right at issue, the correct standard was not but-for causation, but rather whether the evidence was “material”—i.e, there is a reasonable likelihood that the allegedly fabricated evidence could have affected the judgment of the jury.  Finally, the court erred in holding the Monell claims failed because there was no predicate constitutional violation by a government official.  Because there was an issue of fact as to whether the investigator fabricated the evidence, there was an issue of fact on constitutional violation.  Further, even if no individual violated the Constitution, if the plaintiff can establish he suffered constitutional injury by a county policy, the fact that individual officers are exonerated is immaterial to Monell liability.  Here, the plaintiff put forth theories of Monell liability not premised on findings of liability by any individual officer.

Use of Criminal Defendant’s Un-Mirandized Statement against Him Does Not Support Claim under 42 U.S.C. Section 1983

In Vega v. Tekoh, published June 23, 2022, the U.S. Supreme Court reversed the 9th Circuit’s decision that itself reversed a verdict in a suit under 42 U.S.C. section 1983.    The plaintiff was questioned by police at his workplace.  He was not given Miranda warnings before questioning.  His statement was used against him at his criminal trial.  The trial court ruled that because he was not in custody during questioning, his statement could be used against him.  The case ended in a mistrial.  In the retrial, the statement was again used against him.  He was acquitted.  He then sued the officer who questioned him.  Among his claims was that the officer violated his Fifth Amendment right against self-incrimination.  The district court declined to instruct the jury to find a Fifth Amendment violation if it determined that the defendant took a statement in violation of Miranda that was then improperly used against the plaintiff.  The jury found for the defendant.  The Ninth Circuit reversed, holding that use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment, and may support a section 1983 claim.

 

The Supreme Court majority reversed.  Examining the history of decisions interpreting its ruling in Miranda, the court concluded that the Miranda rule is a prophylactic rule that protects the rights of a person questioned in custody, including Fifth Amendment rights; and that this right is Constitutionally based.  But a violation of the Miranda right is not itself tantamount to violation of the Fifth Amendment right against self-incrimination.  Further, although it can be argued that Miranda rules constitute federal law, that law should not be expanded to include the right to sue for damages under section 1983 for its violation.  Judicially-crafted prophylactic rules should apply only where the benefits outweigh the costs.  The costs of allowing section 1983 claims for violation of Miranda rights would outweigh the costs.

 

Three justices opined that Miranda protections are rights secured by the Constitution, and therefore violation of them should be actionable under section 1983.

 

 

 

https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf

Employee's Immunity Does Not Bar Public Entity's Liability under Vehicle Code section 17001

In Silva v. Langford, ordered published June 9, 2022, the Second District Court of Appeal, Division 7 affirmed in part and reversed in part a trial court's dismissal of a lawsuit after demurrer.  The operative First Amended Complaint alleged that in the early morning hours an Uber driver pulled into the Number One lane on the 101 Freeway and demanded that his passengers get out of the vehicle.  While one of the passengers was attempting to cross the lanes of traffic to get to safety, the defendant CHP officer struck and killed him.  The CHP officer was allegedly driving at an excessive speed without activating lights and sirens.  The original complaint alleged that the officer was responding to a call.  These allegations were omitted from the FAC.  The plaintiff sued the officer and CHP for wrongful death, alleging the CHP was liable under Government Code section 815.2(a) for the officer's negligence, and also liable under Vehicle Code section 17001 for the officer's violation of the basic speed law.  The officer and CHP demurred on the ground that liability was barred by Government Code section 821.6, because the officer was allegedly responding to a call, the first step in a police investigation.  CHP contended that under Government Code section 815.2(b), it was entitled to the benefit of the officer's immunity.  The trial court sustained the demurrer on the ground that section 821.6 immunized both the officer and the CHP.

The appellate court noted that the issue of the scope of section 821.6, and whether it applied to acts in the course of a police investigation or merely malicious prosecution actions, was currently pending before the California Supreme Court and was undecided.  It nevertheless ruled that the officer's actions were independently immunized under Vehicle Code section 17004, which immunizes public employees from civil damages resulting from the operation in the line of duty of an emergency vehicle when responding to an emergency call.  Although the court sustained the officer's demurrer on a different basis, the ruling must be upheld if correct on any ground.  But the appellate court reversed demurrer against the CHP.  Vehicle Code section 17001 provides an independent ground for public entity liability for negligent or wrongful operation of a motor vehicle by a public employee, which is not based on vicarious liability under Government Code section 815.2(a).  The liability is therefore not subject to Government Code section 815.2(b), which is an exception to vicarious liability of public entities for their employees' acts under section 815.2(a).

Public Employer That Establishes by Undisputed Evidence It Had Legitimate Independent Reasons for Releasing Employee from Probation Entitled to Summary Judgment against Whistleblower Claim

In Vatalaro v. County of Sacramento, ordered published June 1, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant county in a whistleblower retaliation suit under Labor Code section 1102.5.  The plaintiff, an administrative analyst, was promoted to an administrative services officer position.  The position was probationary for six months.  The plaintiff complained about her job duties in her new position, which she believed did not rise to the level of her position.  After her report, the plaintiff felt mistreated on several occasions, which she believed was attributable to her complaints.  Her supervisor eventually recommended that the plaintiff be released from probation on the alleged grounds that she had been insubordinate, disrespectful, and dishonest in her actions.  The trial court granted the county's motion for summary judgment, ruling that the county had met its burden of showing plaintiff could not allege a prima facie cause of retaliation because she had not alleged or presented evidence of protected conduct under section 1102.5, because she did not have a reasonable belief the county had violated a specific federal, state, or local law or regulation, but instead had only shown she complained about internal personnel matters.  The court further ruled that the county had presented evidence it had a legitimate business reason for releasing the plaintiff, and the plaintiff had failed to raise a triable issue of material fact to support that the reason was pretext.

The appellate court ruled that the trial court's analysis was incorrect, but nevertheless affirmed summary judgment.  The three-stage analysis the trial court had applied was disapproved for Labor Code section 1102.5 cases in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, because it fails to acknowledge Labor Code section 1102.6.  Section 1102.6 provides that once the plaintiff demonstrates by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.  Therefore, under section 1102.6, once the plaintiff has met her burden, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action for legitimate, independent reasons even had the plaintiff not engaged in protected activity.  The plaintiff need not show the reason was pretextual.  The appellate court also questioned whether the correct test for a prima facie case is whether the plaintiff had a "reasonable belief," as multiple cases hold, since section 1102.5 actually refers to a "reasonable cause to believe."  The appellate court ultimately did not resolve that issue, because it ruled that the trial court properly granted summary judgment on the ground that the county had carried its burden under section 1102.6 by presenting undisputed evidence that it had a legitimate business reason to release the plaintiff--that she was insubordinate, disrespectful, and dishonest in her actions.