Government Liability Update

Civil Code Section 51.9 Does Not Create Statutory Cause of Action against Public Entities for Sexual Harassment; Treble Damages Provision of CCP Section 340.1 Is Not Retroactive and Does Not Apply to School Districts

In K.M. v. Grossmont Union High School District, published October 25, 2022, the Fourth District Court of Appeal, Division 1 affirmed a judgment after jury trial.  The plaintiffs alleged their high school drama teacher sexually abused them.  The causes of action included one against the defendant district under Civil Code section 51.9.  The trial court sustained the district’s demurrer to this cause of action without leave to amend.  The case proceeded to trial against the district on negligence claims.  The jury awarded damages, and apportioned fault 60% to the teacher and 40% to the district.  The plaintiff appealed the ruling on section 51.9.  While the appeal was pending, Code of Civil Procedure section 340.1 was amended to add a provision for treble damages against parties that covered up childhood sexual abuse.  On appeal, the plaintiff contended that under this provision it was entitled to treble damages against the district.

The appellate court concluded that Code of Civil Procedure section 340.1’s treble damages provision is neither retroactive nor applicable to public school districts.  In addition to the treble damages provision, the amendment to section 340.1 in Assembly Bill 218 extended the statute of limitations for childhood sexual abuse and provided a three-year revival period.  The plaintiffs contended that all of AB 218’s provisions, including the new treble damages provision, apply retroactively.  The language of the treble damages provision is silent as to retroactivity, and applying the tests for when statutes are to be interpreted as retroactive, as well as review of the legislative history, supports the conclusion that the provision applies only prospectively.  The court also agreed with two prior appellate decisions (both currently under review by the California Supreme Court) that the treble damages provision is a punitive damages provision that is barred by Government Code section 818, which immunizes public entities from punitive damages.  The court analyzed the treble damages provision and concluded that the damages are punitive rather than compensatory.  The appellate court further upheld the trial court’s ruling that Civil Code section 51.9, together with Civil Code section 52, do not create a statutory cause of action against public entities.  Civil Code section 51.9 renders providers of business services liable for sexual harassment of customers.  The court applied the tests for statutes that create causes of action against public entities, and concluded that a public entity is not a “person” under section 51.9.  Although the statute mentions “teacher” as a type of business relationship to which the statute applies, both public and private entities can employ teachers.  Further, applying section 51.9 to school districts would affect their ability to function by diverting funds needed for education.  Section 52, which provides remedies for violation of section 51.9, does not create a stand-alone cause of action.  Finally, Government Code sections 815.2 and 820, which impose vicarious liability upon public entities for their employees’ violation of duties, do not support imposing section 51.9 or 52 liability upon school districts.

Officers Do Not Violate the Fourth Amendment Merely by Being Present when Fellow Officers Use Deadly Force

In Peck v. Montoya, published October 18, 2022, the 9th Circuit court of appeals affirmed in part and reversed in part a district court’s denial of a summary judgment motion, based on qualified immunity, brought by defendant deputies in a 42 U.S.C. section 1983 case.  Deputies responded to a 911 call that a man was acting erratically and had threatened to shoot a person.  The deputies formed a perimeter around the suspect’s house and watched him through a large window.  The suspect was visibly agitated and continued to act erratically, taunting the deputies about shooting him.  A deputy observed a holstered revolver lying on the couch.  The deputy alerted the other deputies.  In response, the suspect began yelling, “I’ll show you my gun!  You wanna see my gun?”  Another deputy warned the suspect not to go near the gun.  According to the deputies, the suspect began moving toward the gun, bent over, reached for, and grabbed onto the gun.  As soon as he did so, one deputy began firing at the suspect through the window.  Another deputy said he began firing when the suspect raised the gun toward the other deputies.  A neighbor who witnessed the interaction, however, testified that the suspect was moving away from the gun several seconds before the shooting.  According to the suspect’s wife, when she reached her husband after the shooting, she did not see a gun in his hands or near his body; the gun was ultimately found unloaded and holstered under the coffee table.  A ballistics expert concluded that the wounds did not support one of the shooting deputy’s version of the story.  The suspect’s wife sued the deputies for use of excessive force in violation of the 4th Amendment and deprivation of a familial relationship in violation of the 14th Amendment.  The district court denied summary judgment on both claims for all defendants.  The defendants brought an interlocutory appeal.

The 9th Circuit affirmed denial of summary judgment on the 4th Amendment claim as to the shooting deputies.  On an interlocutory appeal from denial of summary judgment based on qualified immunity, the appellate court has no jurisdiction to entertain arguments that the evidence does not support the district court’s finding of a genuine issue of fact.  Here, the district court found a genuine issue of fact on whether the suspect was moving away from the gun when the deputies fired.  Resolving that issue against the defendants, it was clearly established that firing at an unarmed man who, although in the presence of a gun, never picked it up and in fact was moving away from it when shot, was excessive under the 4th Amendment.  The court reversed denial of summary judgment on the 4th Amendment claim for the deputies who did not fire.  An actor may be deemed to have caused a plaintiff to be subjected to a constitutional violation, and thus to be an integral participant in the violation, only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others that the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.  The other deputies did not meet that standard simply by being present at during the unplanned shooting.  Finally, all of the deputies were entitled to qualified immunity to the wife’s 14th Amendment familial relationship claim.  The law was not clearly established that a spouse (as opposed to a parent or child) could assert such a claim.  Further, even under the law relating to parent and child claims, the claim here failed.  Under the circumstances here, requiring a snap judgment under escalating circumstances, the deputies use of deadly force did not “shock the conscience” because the deputies did not shoot the suspect for any purpose other than their (possibly mistaken) perception of the need for self-defense.

Hotel Did Not State Causes of Action against Public Entity for Inverse Condemnation or Nuisance Based on Railway Construction That Disrupted Hotel Operations

In Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority, published October 5, 2022, the Second District Court of Appeal, Division 8 affirmed judgment in favor of the defendant authority after demurrer and motion for judgment on the pleadings.  The plaintiff owns the Bonaventure Hotel in downtown Los Angeles.  The only access to the hotel's parking garage and loading dock, and its main guest/invitee drop-off and pick-up point, is on Flower Street.  The authority's Regional Connector Transit Project runs along and under Flower Street, including under the hotel's location.  Although much of the project's tunnel is being built using an underground tunnel boring machine, which is less disruptive to surface traffic, the project called for a portion of the tunnel being built by the more disruptive cut-and-cover method, due to structural aspects of the street in the area. In 2012, the plaintiff sued under CEQA to halt construction of the project, challenging the Environmental Impact Report for the project.  The plaintiff lost the lawsuit, and the result was upheld on appeal.  In 2016, construction began, and the plaintiff instituted this lawsuit alleging causes of action against the authority for inverse condemnation and nuisance.  The trial court sustained a demurrer without leave to amend to the fourth amended complaint's cause of action for inverse condemnation.  It then granted a co-defendant's motion for judgment on the pleadings--which the authority joined--for nuisance, again without leave to amend.

The appellate court affirmed the resulting judgment.  The inverse condemnation action was based on an intangible intrusion theory.  This theory requires an intrusion that places a burden on the property that is direct, substantial, and peculiar to the property.  Such intrusions have been recognized only in limited circumstances.  The plaintiff asserted two types of intrusion.  The first was impairment of right of access.  Only an unnecessary and substantial temporary interference with rights of access during construction is actionable.  The plaintiff's argument that the use of cut-and-cover rather than the less-disruptive TBM method was barred by claim preclusion, since the previous CEQA litigation resolved the issue.  The plaintiff attempted to avoid claim preclusion by arguing that the method of cut-and-cover used caused unreasonable and unnecessary disruption.  But the construction causing traffic detours interfering with ingress and egress were the type of temporary interference from street construction that the law deems not unreasonable.  Traffic detours and delays are not such direct and substantial burdens peculiar to the hotel as would meet the legal standard:  not far removed from a physical intrusion.  The second theory was excessive noise and dust.  The complaint did not sufficiently plead the intrusion the hotel suffered was unique, special, or peculiar in comparison with other stakeholders in the area.  The plaintiff failed to explain on appeal how the complaint could be amended to save it from demurrer.  The complaint also failed to plead sufficient facts to state a cause of action for nuisance, because it failed to plead facts showing that the seriousness of the harm the hotel suffered outweighed the social utility of the project.  Further, Civil Code section 3482 barred the cause of action.  Under section 3482, nothing done or maintained under the express authority of a statute can be deemed a nuisance.  Public Utilities Code section 30631 provides that the authority may construct rail lines, stations, and any other facilities for rapid transit services, under or over public streets.  The complaint on its face pleaded facts sufficient to invoke section 3482.