Government Liability Update

Because City's Fire Department and Transit Agency Were Not Separate Public Entities, Exclusive Remedy for Firefighter Allegedly Injured by Bus Driver Is Workers' Compensation

In Vann v. City and County of San Francisco, published December 12, 2023, the First District Court of Appeal, Division 2 affirmed dismissal of a personal injury lawsuit after demurrer was sustained without leave to amend.  The complaint alleges that a bus driver with the San Francisco Municipal Transportation Agency drove through an active emergency scene and over a fire hose.  The fire hose broke and caused the plaintiff, a firefighter with the San Francisco Fire Department, to fall and sustain serious injury.  The city sent the plaintiff a notice that he was receiving workers' compensation benefits.  The plaintiff sued the city and the bus driver for alleged negligence.  The defendants filed a demurrer on the ground that workers' compensation benefits were the exclusive remedy for the injury.  The plaintiff asserted that he was employed by the fire department, while the driver was employed by the transit agency, and that the two were separate legal entities; and that the fire department, rather than the city, was his employer.  The trial court sustained the demurrer.

The appellate court affirmed.  Workers' compensation benefits are the exclusive remedy when an employee injures a co-employee while acting in the scope of the employee's duties.  The exclusive remedy rule is an affirmative defense to an action at law.  The primary issue is whether the city, the fire department, and the transit agency are separate entities, or whether the department and agency are subsidiaries of the city.  If an entity is not independent, it is not properly named as a defendant.  If an entity is a subsidiary, an action must be filed against the parent entity.  Factors that may be considered in determining if an entity is independent include whether there is an express statutory declaration that the entity is a body corporate and politic; whether the entity has a governing body separate from that of the city, county, or district; or whether it has statutory power to own property, levy taxes, or incur indebtedness in its own name.  Applying these factors to the city charter, city municipal codes, and other legislative material established as a matter of law that the transit agency does not have a legal existence separate and apart from the city.  Although the transit agency is governed by its own board of directors, those directors are appointed by the mayor and confirmed by the city's legislative branch.  Per the city charter, the city controller, city attorney, and city civil service commision have oversight of the agency.  The agency therefore does not have a governing body apart from the city.  The fact that the agency's funding is segregated from other city funds does not mean it is fiscally separate from the city.  While the agency has exclusive power to acquire, control and operate property under its jurisdiction, it cannot transfer or dispose any property of the city without city legislative approval.  It cannot incur debt without concurrence and certification of the city.  The agency must contract with the city attorney for legal matters.  The city employs the plaintiff.  His attempt to divide the city, the fire department, and the transit agency into separate entities for purposes of the workers' compensation exclusivity rule fails.

Because Convention Center Is an Extension of City, It Is Exempt from Labor Code Claim

In Allen v. San Diego Convention Center Corporation, published December 16, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court order denying class certification.  The plaintiff was a former employee of the defendant San Diego Convention Center Corporation.  She alleged eight Labor Code violation claims against SDCCC.  SDCCC demurred on the ground that it was exempt from liability for the alleged Labor Code violations because it is a public entity and a wholly-owned subsidiary and instrumentality of the City of San Diego.  The trial court agreed that SDCCC was a public entity for purposes of seven of the Labor Code claims.  The trial court then denied the plaintiff's motion for class certification, on the ground that the proposed class claims related to claims dismissed on demurrer.  The plaintiff appealed the denial of certification as a "death knell" order.

The appellate court agreed that SDCCC was a public entity for purposes of the Labor Code.  Governmental actors are protected from liability under the Labor Code, unless a statute specifically brings a public employee within its ambit.  The Labor Code provisions at issue in this case do not apply to public employers.  The undisputed facts establish that SDCCC is an extension of the City of San Diego, and thus is a public entity for purposes of the Labor Code violation.  The city's municipal code defines the city as including SDCCC.  The city appoints all of SDCCC's board members.  Upon dissolution, SDCCC's assets revert to the city.  SDCCC must publicly account for it s operations.  SDCCC was formed under the authority of state law, which grants cities the authority to construct convention halls.  SDCCC is therefore not an independent corporation; it is an agent and instrumentality of the city.

Sheriff Entitled to Discretionary Immunity for Enacting Policy of Not Informing ICE of Undocumented Alien Releases

In Steinle v. City and County of San Francisco, published March 25, 2019, the 9th Circuit affirmed dismissal of state law negligence claims against the defendant municipality.  The county sheriff informed the federal government that his department would not honor Immigration and Customs Enforcement detainer requests (to detain released prisoners for ICE) or notify ICE of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal.  The sheriff then issued a memo establishing protocols and parameters for the department's communications with ICE.  The memo changed the longstanding practice of freely providing information to ICE regarding undocumented aliens in custody.  After serving federal time for drug offenses, an undocumented alien was released to the sheriff's custody to face felony charges for selling drugs.  The charges against him were dropped the next day.  ICE sent the sheriff's department a detainer request asking to be notified 48 hours before the alien's release and that the sheriff's department hold the alien until ICE could take custody of him.  The sheriff's department released the alien without notifying ICE.  Later, the alien shot and killed plaintiffs' decedent.  The plaintiffs sued the municipality for negligence in issuing the policy.  The district court granted the municipality's motion to dismiss the negligence claim.

The 9th Circuit panel unanimously held that the municipality was entitled to discretionary immunity under Government Code sections 820.2 and 815.2(b).  The memo was the sort of policy decision that is immunized by section 820.2.  The sheriff actually exercised his discretion in issuing the policy.  Further, the law gave the sheriff discretion to issue the policy.  Under Government Code section 26605, the sheriff had the authority to keep the jail and the prisoners in it.  8 U.S.C. sections 1373(a) and 1644, which prohibit local restrictions on sending information regarding the immigration status of individuals to the INS, did not deprive the sheriff of discretion to enact the policy; despite legislative history to the contrary, nothing in the statutes' language required sharing information about the release of prisoners to the ICE.  The federal government's control over immigration matters did not require the sheriff to provide ICE with the release date.  The court rejected the argument that issuing the policy was an act of legislation outside the sheriff's discretion.  It also rejected the argument that the sheriff violated the California Public Records Act by not sharing the information.  The detainer request was not a CPRA request;  the CPRA did not require the sheriff to create a record; and at the time the detainer request was made, there was no record of a release that had not happened yet.  The court also rejected arguments that the policy conflicted with California or local laws.  A concurring judge opined that liability for the prisoner's release was barred by Government Code sections 845.8 (immunity for paroling or releasing a prisoner) and 846 (immunity for failure to retain a person in custody).

Local Agencies May Deny Proposed Mobilehome Park Subdivisions Inconsistent with The Open Space Element of Their General Plan

In Carson Harbor Village Ltd. v. City of Carson, published July 31, 2015, the Second District Court of Appeal, Division 8, concluded -- contrary to the court's earlier decision in the same case -- that the Subdivision Map Act requires a municipality to deny permission for a proposed mobilehome park conversion from rental to tenant ownership if the conversion is inconsistent with elements of the municipality's general plan; and that the portion of the Act governing hearings on mobilehome park conversions -- Government Code section 66427.5 -- does not bar denial on that ground.  A series of earlier lower appellate court decisions had interpreted section 66427.5 to bar rejection of proposed conversions based on considerations other than whether the procedure set forth by section 66427.5 had been followed.  In Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, the California Supreme Court held that section 66427.5 did not prevent municipalities from also applying other statutes that control subdivision approval when considering whether to approve conversions.  The court deemed this authority a change in the law that created an exception to the law-of-the-case doctrine.  Based on the reasoning in Pacific Palisades, the court determined that the portions of the Subdivision Map Act that required the subdivision to comply with the municipality's general plan apply to mobilehome conversions.  The court also determined, 2-3, that substantial evidence supported the city's conclusion that this conversion would conflict with the open-space element of the city's general plan.

City Charter Establishing Attorney-Client Relationship with City Attorney Supersedes Ordinance Calling for Disclosure of Attorney-Client Communications

In St. Croix v. Superior Court (Grossman), published July 28, 2014, the First District Court of Appeal, Division 1, issued a writ of mandate directing a trial court to vacate its own writ of mandate directing the San Francisco Ethics Commission to disclose written communications with the San Francisco city attorney under the California Public Records Act.  The person who requested the records argued that the San Francisco Sunshine Ordinance required disclosure of the communications, regardless of privilege.  The court ruled that because the city charter created an attorney-client relationship between the city attorney and city commissions, incorporated the state law attorney-client privilege for written communications between the city attorney and his or her clients.  A charter city's ordinance cannot contravene its charter.  To the extent the ordinance purports to compel disclosure of attorney-client privileged materials, it conflicts with the charter.  Because the California Public Records Act excludes production of attorney-client privileged materials, the trial court erred in ordering disclosure of those documents.