Government Liability Update

Individual School Districts May Not Require COVID-19 Vaccination

In Let Them Choose v. San Diego Unified School District, published November 22, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court judgment determining that the defendant school district's COVID-19 requirements were preempted by state law.  The district adopted a "Vaccination Roadmap" requiring students 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities.  Unvaccinated students in this group were involuntarily placed on independent study.  A nonprofit corporation and the parent of a 16-year-old student filed complaints challenging the Roadmap.  The cases were consolidated.  On a motion for judgment, the trial court ruled the district's COVID-19 immunization requirements preempted.

The appellate court agreed.  Health and Safety Code section 120335 provides that a school shall not unconditionally admit students who have not been vaccinated for 10 listed diseases.  It also requires vaccination for any other disease deemed appropriate by the State Department of Public Health, after taking into consideration the recommendations of several medical groups.  In 2015, the Legislature considered whether vaccination should be mandated on a school district by school district basis.  A bill analysis explained that a statewide standard was preferred.  Cal. Code Regs., tit. 17, section 6025 provides that a school shall unconditionally admit or allow continued attendance to any pupil who has provided documentation for each immunization for listed diseases.  The Roadmap is preempted by these provisions because it both contradicts state law (conflict preemption) and enters a field already occupied by state law (field preemption).  By creating a comprehensive state procedure to determine the compulsory vaccinations for school attendance, the statute by negative-but-necessary implication provides that students who comply with state immunization requirements (and other eligibility rules) are entitled to attend schools, and that districts are not allowed to add their own vaccine mandates.  The Department of Public Health interprets the statute the same way in regulation 6025.  The court deferred to this agency interpretation.  The regulation enters a field the state has fully occupied, because the Legislature has covered the matter fully and completely, defining the who, what, when, and where of compulsory student vaccination, leaving districts no discretion in the matter.  The court rejected the multiple arguments the district made otherwise.

State Manual Provision Requiring Social Worker to Make Necessary Collateral Contacts with Persons Who Have Knowledge of Child's Condition Does Not Create Mandatory Duty

In Thompson v. County of Los Angeles, ordered published on November 16, 2022, the Second District Court of Appeal, Division 8 affirmed an order dismissing a lawsuit after demurrer was sustained without leave to amend.  The plaintiff's four-year-old son fell at his school's playground, fracturing his arm.  The child had a developmental delay and was nonverbal.  The parents took the child to a doctor two days after the fall.  The doctor did not diagnose the fracture as abuse.  The principal at the son's school called the police and reported physical abuse of the son by an unknown party.  The defendant county's Department of Children and Family Services investigated the son's injury.  A department social worker reported that when she asked the son who injured him, the son pointed to his father.  The social worker concluded the child was at risk of harm, and took him into protective custody.  A juvenile court found prima facie evidence the son was subject to detention under Welfare & Institutions Code section 300.  After a forensic child abuse expert reported the injury could have been an accident, the juvenile court dismissed the department's petition and released the son to his parents.  The mother sued the county for negligence per se and intentional infliction of emotional distress.  The trial court sustained the demurrer and dismissed the action with prejudice, concluding that the plaintiff did not allege violation of a mandatory duty.

The appellate court concluded the trial court correctly sustained the demurrer.  Under Government Code section 815.6, a public entity may be held liable for violating a mandatory duty where an enactment creates an obligatory duty.  Liability may not be based on an enactment that creates a discretionary or permissive duty, or that requires the entity or employee to perform a function that involves the exercise of discretion.  The plaintiff alleged that a provision of the Child Welfare Services Manual of Policies and Procedure requiring social workers to make “necessary collateral contacts” with people “having knowledge of the condition” of children subject to allegations created a mandatory duty for the social worker to speak to the child's doctor.  Assuming (without deciding) that the provision is a regulation with legal force, the provision is discretionary.  The county must exercise discretion to determine what constitutes a "necessary" collateral contact.  Many people may have knowledge of a child's condition.  Deciding whom to deem a necessary contact requires balancing child safety, family preservation, and limited time and resources.  The provision does not create a mandatory duty to contact particular individuals.

Officers Were Not Negligent in Using Less-than-Lethal Weapons on Suicidal Suspect after Extended Negotiations

In Villalobos v. City of Santa Maria, ordered published November 16, 2022, the Second District Court of Appeal, Division 6 affirmed summary judgment in favor of the defendant city and its police officers.   Officers responding to a report of a suspicious person with a knife saw the plaintiff's decedent standing in a road holding a knife with a long blade.  The officers ordered the decedent to drop the knife.  The decedent held the knife to his own throat.  He pointed, gesticulated, and appeared upset.  The police attempted to negotiate with him for 42 minutes.  Eventually, without warning, the officers deployed less-than-lethal beanbag rounds and 40 mm rubber projectiles against the decedent.  They were 30-40 feet from the decedent.  The decedent saw the officers taking aim, and made a "go ahead" gesture.  The decedent began jumping up  and down and stabbing himself in the abdomen with the knife.  He slashed his own throat with the knife.  He then charged full speed toward the officers, the knife in his right hand.  The officers fired several rounds of live ammunition at the decedent.  He fell a few feet from the officers.  He died of multiple gunshot wounds.  Based on the totality of the circumstances, the trial court found that the officers were not negligent, and that no reasonable juror could find that the police acted unreasonably.  On appeal, the plaintiff conceded that the shooting became reasonable at some point, but that the officers were negligent in their pre-shooting conduct, resulting in the decedent's suicidal assault with the knife.

The appellate court agreed with the trial court.  The officers were not obliged to let the decedent go.  They could use reasonable force to disable him.  The fact that the less-than-lethal force was unsuccessful is not the reason deadly force was needed.  Viewing the facts in the light most favorable to the plaintiff, no reasonable juror could find that officers were negligent or had acted unreasonably. The officers patiently waited approximately 40 minutes before resorting to less-than-lethal weapons.  The decedent charged the officers in an apparent attempt to commit "suicide by cop."  That the officers did not use alternatives to deadly force did not raise a triable issue on negligence.  Officers are not required to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.

Constructive Notice That Employee Is Sexually Abusing Students Is Sufficient for Negligence and CANRA Causes of Action against School District, but Not for Title IX and Education Code Section 220 Claims

In Roe v. Hesperia Unified School District, ordered published November 4, 2022, the Fourth District Court of Appeal, Division 2 reversed dismissal of a case after a demurrer was sustained without leave to amend.  An elementary school custodian allegedly molested multiple six-year-old students.  The plaintiffs sued the school district, alleging negligence in supervising the students and the custodian; negligent hiring and retention; negligence per se; violation of Title IX; failure to perform mandatory duties under CANRA, the mandated reporter act; and sex discrimination in education in violation of Education Code section 220.  The trial court sustained the district’s demurrer to the complaint, on the ground that the complaint failed to allege that the district had actual knowledge of prior acts of abuse by the custodian, or that it had actual knowledge that the custodian was abusing the plaintiffs.

The appellate court held that the complaint adequately pled causes of action against the district.  The district may be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising, and retaining a school employee who sexually harasses and abuses a student.  The negligence standard is “knew or should have known.”  Therefore, actual knowledge that an employee is prone to harming students, or is actually harming students, is not necessary.  Constructive notice is sufficient.  Case law applying an actual knowledge requirement when imposing negligence liability for a third party’s sexual abuse of children deal with non-school settings.  The complaint adequately alleged facts that would show constructive knowledge.  The CANRA cause of action also does not require actual knowledge, because it imposes a duty on mandated reporters to make a report when the reporter “knows or reasonably suspects” a child has been the victim of child abuse.  Reasonable suspicion does not require certainty. A breach of CANRA can support a negligence per se cause of action.  It would be objectively reasonable for persons in the position of the school’s employees who saw the conduct alleged in the complaint to reasonably suspect that the custodian was sexually abusing the plaintiffs.  The trial court properly dismissed the causes of action under Title IX and Education Code section 220, however; those provisions impose liability for a teacher sexually harassing a student only when an official at the district with authority to impose corrective measures on the district’s behalf has actual notice of the misconduct and is deliberately indifferent to it.

Public Hospital Immune from Liability for Employee's Alleged Sexual Abuse of Minor Mental Patient

In State Department of State Hospitals v. Superior Court (Jane Doe), published November 2, 2022, the First District Court of Appeal, Division 5 issued a writ directing a trial court to sustain the petitioner department's demurrer without leave to amend.  The real party plaintiff alleged that between 1997 and 1999, when she was a minor and a ward of the state confined at a state hospital, she was sexually assaulted by a department counselor.  She sued the department for negligence, negligent supervision/training/hiring/retention, sexual battery, assault, and statutory civil rights violations.  The department demurred to the complaint, based on Government Code section 854.8, subdivision (a)(2)'s immunity for injuries to mental patients.  The trial court concluded that section 854.8's exception for liability under Government Code section 855 (failure to provide adequate or sufficient equipment, personnel, or facilities required by statute or regulation) applied.  The trial court reasoned that Government Code section 815.2, which imposes vicarious liability on public employers for their employees' acts and omissions, provides minimum personnel standards.  It overruled the demurrer as to all causes of action except negligent supervision/training/hiring/retention, and granted the plaintiff leave to amend that cause of action to bring it within the scope of the exception to section 854.8.

The court of appeal disagreed with the trial court's reasoning.  Section 854.8 provides public entities broad immunity from liability for injuries suffered by an inpatient of a mental institution.  The immunity prevails over all liability provisions of the Government Claims Act, with the exception of the sections expressly described in the statute as exceptions.  The plaintiff relied on the exception for section 855.  Section 855, subdivision (a) imposes liability only when a statute or regulation sets forth a specific standard that gives the public medical facility clear notice as to the minimum requirements with which it must comply.  The trial court erred in ruling Government Code section 815.2 imposes minimum personnel standards triggering liability under section 855.  Section 815.2 does not require any public entity to provide adequate or sufficient equipment, personnel or facilities.  Further, section 815.2 is not one of the statutes listed in section 854.8 as an exception to the statute's immunity.  Section 815.2 is merely a general liability provision of the Act.  It is trumped by the specific immunity provision of section 845.8.  The plaintiff contended she could amend her complaint to allege the department violated other statutes and regulations, including the mandated reporting statute and regulation.  But neither the statute nor the regulation prescribes minimum standards for equipment, personnel, or facilities; and the plaintiff did not indicate she could allege those provisions were violated or proximately caused her injury.  None of the other regulations plaintiff contended were violated provide the requisite specific minimum standards.  The appellate court overruled its previous decision in Baber v. Napa State Hospital (1989) 209 Cal.App.3d 213 that similar regulations supported liability under section 855.  The court instead followed Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, which requires that statutes or regulations impose specific minimum standards to support section 855 liability.