Government Liability Update

Family of Decedent May Recover "Loss of Life" Damages under 42 U.S.C. § 1983, Even Though Barred by California Law

In Valenzuela v. City of Anaheim, published August 3, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed a judgment based on jury verdict for the plaintiffs in a 42 U.S.C. section 1983 action.  The defendant officers tased and used multiple choke holds on a "suspicious person" at a laundromat who had a screwdriver in his bag and who did not immediately comply with a command to put his hands behind his back.  The decedent fell into a coma, and died eight days later.  The jury awarded the decedent's family a total of $13.2 million in damages.  The award included $3.6 million for the decedent's pre-death pain and suffering; $3.6 million for the decedent's children's loss of decedent's companionship and society; and $3.6 million for decedent's "loss of life."  The defendants appealed the award of damages for decedent's loss of life, on the ground that California state law on wrongful death damages (Code of Civil Procedure section 377.34) barred damages for loss of life.  The district court rejected the defendants' argument.

The majority of the 9th Circuit panel agreed.  Because section 1983 is silent as to loss of life damages, the California law barring such damages controls, unless it is inconsistent with the policies of section 1983.  In Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), the 9th Circuit concluded that California law's ban on damages for pre-death pain and suffering was inconsistent with he policies of section 1983.  Section 1983 was intended to provide a remedy for killings unconstitutionally caused or acquiesced in by state governments, the  Chaudhry court concluded; and in cases where the victim dies quickly, there often will be no damages remedy at all under section 377.34.  The Chaudhry court therefore concluded that section 377.34 does not apply to section 1983 claims where the decedent's death was caused by violation of federal law.  The majority saw no meaningful way to distinguish Chaudhry from this case.  

A dissenting judge concluded that the award of damages for the decedent's pre-death pain and suffering was sufficient to satisfy section 1983's remedial purpose without also awarding damages for loss of life.  He further urged the court to revisit Chaudhry en banc.

Time to File Suit in State Court Is Tolled While Federal Action Is Pending, Through Mandate Issued in Appeal of Right

In Sales v. City of Tustin, published June 8, 2021, the Fourth District Court of Appeal, Division 3 reversed summary judgment in favor of the defendant city, granted based on the statute of limitations.  Plaintiff alleges her decedent fled an improper detention, was chased into traffic, and was killed.  On the last day to file a lawsuit under California law (six months after her claim was denied), the plaintiff filed a suit in federal court alleging federal and state causes of action.  The district court denied a defense summary judgment motion based on qualified immunity.  The defendants took an interlocutory appeal to the 9th Circuit.  That court reversed the denial of summary judgment.  On remand, the district court concluded that the appellate ruling resolved all of the federal claims in favor of the defendants, and entered judgment on those claims.  The court declined supplemental jurisdiction over the state law claims, and dismissed them.  That occurred in 2016.  The plaintiff appealed the result to the 9th Circuit.  The 9th Circuit affirmed the decision.  The court then denied a rehearing en banc.  The court issued its mandate on December 5, 2018.  The plaintiff refiled her state law causes of action in state court on December 19, 2018.  The trial court granted the defendants summary judgment on the ground that under 28 U.S.C. section 1367, the plaintiff's time to file her state court claim was tolled only until the district court dismissed the state law claims in 2016.

The appellate court concluded that the trial court interpreted section 1367 incorrectly.  Section 1367 governs supplemental jurisdiction over state law claims in federal court.  Subdivision (d) provides that the period of limitations for any state claim joined with federal claims shall be tolled while the claim is pending in federal court, and for a period of 30 days after it is dismissed.  The appellate court joined the majority of courts to extend the tolling deadline through the pendency of an appeal of right, through the mandate returning the appeal to the district court, and then for 30 days after the mandate.  That the appeal addressed only the dismissal of the federal claims, and not the state claims, did not matter; if the federal court had reversed judgment on the federal claims, the district court might have reasserted jurisdiction over the state law claims.

Statutory Treble Damages Provision for Cover-Up of Childhood Sexual Abuse Is Punitive Damages Award, Barred by Statutory Immunity

In Los Angeles Unified School District v. Superior Court (Doe), published May 21, 2021, the Second District Court of Appeal, Division 3 issued a writ directing a trial court to grant a motion to strike a treble damages prayer in a lawsuit.  The lawsuit alleged that the petitioner district covered up an employee's sexual abuse of a student, leading to the sexual abuse of the plaintiff student.  The suit alleged causes of action against the district for negligent hiring, supervision, and retention; breach of mandatory duty to report suspected child abuse; negligent failure to train, warn, or educate; and negligent supervision of a minor.  The plaintiff sought an award of economic and noneconomic damages against all defendants, and an award of treble damages under Code of Civil Procedure section 340.1 against the district.  The district moved to strike the treble damages prayer under Government Code section 818, which immunizes public entities from punitive and exemplary damages.  Relying on the legislative history of the amendment of section 340.1 that added the treble damages provision, the trial court denied the motion, ruling that the treble damages provision had a compensatory function.

The appellate court disagreed.  The Government Claims Act maintains souvereign immunity from punitive damages that are awarded to punish the defendant and to deter outrageous conduct in the future, while waiving immunity for normal tort damages awarded to compensate the plaintiff for injury suffered, restoring the plaintiff as nearly as possible to her former position.  Treble damages under section 340.1 are imposed to punish and deter cover-ups, not to compensate the plaintiff.  The legislative history-- including a statement attributed to the bill's author that the treble damages are needed "to compensate victims who never should have been victims" as well as an "effective deterrent" against cover ups--does not unambiguously demonstrate the Legislature in fact added the treble damages provision to the statute for that purpose.  While the fact that an entity covered up past abuse may add to a victim's emotional distress, that is an item of harm for which a jury can award compensatory damages.  By definition, the treble damages award is in addition to the plaintiff's actual damages.  The treble damages provision is plainly designed to punish those who cover up childhood sexual abuse and thereby to deter future cover-ups, rather than to compensate victims.  The provision is therefore primarily punitive under section 818.  Case law allowing mandatory civil penalties under section 818 is inapposite; those provisions lie outside the perimeters of a tort action and are fixed amounts.  The treble damages are awarded only in tort actions for injury, and are based on a jury's calculation of damages.  They are therefore punitive damages.

Social Workers Not Entitled to Qualified Immunity for Judicial Deception, but Employing County Not Liable for Minor Medical Examinations in Violation of Policy

In Benevidez v. County of San Diego, published April 12, 2021, the 9th Circuit affirmed in part and reversed in part a district court's dismissal of an action against social workers and their county employer.  The complaint alleged that the defendant social workers obtained a protective custody warrant and removed the minors from their home.  A juvenile court held a detention hearing to remove the minors and issued an order allowing medical examination of the minors.  The parents were present at the detention hearing, but neither the defendant social workers nor any county employees discussed the medical examinations with the parents before or after the hearings.  There were no discussions of medical examinations at the hearings.  No county employee sought the parents' consent to the examinations, or advised them of their right to be present  at the examinations.  These alleged actions contravened a 2015 county policy requiring employees to obtain parental consent and advise parents of their right to be present.  The minors were then examined under the court orders.  The parents were not informed until after the examinations took place.  The parents appealed the juvenile court's removal decisions but not the medical examinations or related orders.  The parents then filed suit in federal court.  The federal court dismissed the second amended complaint.

The 9th Circuit affirmed the district court's decision that the Rooker-Feldman doctrine did not deprive the federal court of jurisdiction.  The doctrine prevents federal lawsuits that challenge a state court's judicial actions, and thus act as de facto appeals from the state court action.  The doctrine does not apply where a plaintiff alleges that court orders were obtained through extrinsic fraud.  Here, the plaintiffs adequately pleaded that the examination orders were obtained without their knowledge, and that the requests falsely represented that reasonable efforts had been made to notify the parents about the medical examinations.  The parents' lack of appeal of the juvenile court decision on the medical examinations did not affect the doctrine, since an appeal would not have remedied the damage done by the examinations having taken place.  The district court erred by granting the social workers qualified immunity, because regardless of whether liability for performing the examination was settled or not, the law barring judicial deception in regard to child custody proceedings was sufficiently established to give the defendants fair notice that what they were allegedly doing violated the parents' Fourteenth Amendment right to familial association.  The district court properly dismissed the Monell allegations of county liability.  Because the social workers' conduct allegedly violated the county's policy, the policy itself could not have caused the injury.  And a single incident in a non-life-threatening situation was insufficient to support liability for failure to train.

Verdict in Federal Lawsuit that Police Strip Search Was Reasonable Bars Negligence Liability for Strip Search

In Shuler v. City of Los Angeles, published April 5, 2021, the Second District Court of Appeal, Division 8 affirmed judgment on the pleadings for the defendant city.  Police officers stopped the plaintiff's car and detained her during a narcotics investigation.  They arrested her passenger on suspicion of drug dealing.  The officers took the plaintiff and her car to a police station.  An officer strip searched the plaintiff, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges.  The plaintiff sued the city and officers in federal court.  She alleged violation of 42 U.S.C. section 1983, and state law claims including negligence.  The court bifurcated the claims and tried the section 1983 claims to a jury.  The jury found that the officers had arrested and strip searched the plaintiff, but that the arrest and search were reasonable and did not violate her Fourth Amendment rights.  The federal court then declined to exercise supplemental jurisdiction over the plaintiff's state law claims and dismissed them without prejudice.  The plaintiff then filed suit in state court asserting her state law claims.  The state court granted judgment on the pleadings on the ground that the verdict in the federal case barred the state law claims.

The appellate court agreed. Collateral estoppel applied.  The only element of collateral estoppel that the plaintiff disputed was whether the issues in the two proceedings were identical.  Hernandez v. City of Pomona (2009) 46 Cal.4th 501 held that a federal verdict that a police use of lethal force was reasonable under the Fourth Amendment barred a negligence action under California law for the same use of force.  Although this case involves a strip search instead of use of lethal force, the result is the same.  The plaintiff contended that because the federal jury was instructed it had to find the search was intentional to find liability, the verdict did not preclude a negligence claim.  But the intentional instruction did not relate to the issue of reasonableness.  It only required that the jury find the officers intentional strip-searched the plaintiff, rather than accidentally.  Whether the officers intentionally strip-searched her is not in dispute in the state court case.  The dispute is over the reasonableness of the strip search.  Since the federal jury found the search reasonable, and the reasonableness element is the same under state and federal law, the verdict that the search was reasonable bars the action.

District Court May Bar Prisoner Plaintiff's Crucial Expert Evidence for Failure to Timely Comply with Expert Discovery

In Merchant v. Corizon Health, published April 2, 2021, the 9th Circuit Court of Appeals affirmed a district court's exclusion of expert evidence and summary judgment in favor of prison officials.  The plaintiff, a prisoner, alleged that the state department of corrections and its medical provider were deliberately indifferent to his medical needs and were negligent.  After obtaining a continuance of expert disclosure to accommodate his attorney's vacation, the plaintiff disclosed his only non-retained expert two days late; disclosed his expert report and non-retained experts five days late, and without the required information for the non-retained experts; disclosed more non-retained experts 61 days past the deadline; disclosed three rebuttal experts but produced the report for only one, and the report for another five days past the deadline; and disclosed a late affidavit from a non-retained expert.  The district court granted the provider's motion in limine to exclude the plaintiff's expert witnesses under Federal Rules of Civil Procedure 37(c)(1).  The district court excluded all expert witnesses except the single rebuttal expert whose report was disclosed timely.  The court then granted summary judgment on the ground that the plaintiff had insufficient expert evidence to establish either deliberate indifference or negligence.  It also ruled that the Prison Litigation Reform Act barred the plaintiff's 42 U.S.C. § 1983 claim because the plaintiff failed to exhaust his administrative remedies.

The 9th Circuit agreed that in light of the plaintiff's persistent disregard of Rule 26(a)(2)'s disclosure deadlines through the course of discovery, the district court acted within its discretion in excluding his improperly disclosed expert evidence.  The party facing that sanction bears the burden of showing that the discovery violation is either substantially justified or harmless, and whether a lesser sanction would be appropriate.  Where the violating party fails to move for a lesser sanction, district courts need not consider lesser sanctions.  The plaintiff did not do so.  The defendants also established that the plaintiff did not exhaust the administrative remedies he was required to exhaust.

Suit against City for Releasing Police Officer Records without Prior Notice to Officer Was Subject to Anti-SLAPP; because Law Required Production, the Plaintiff's Claims Were Unlikely to Succeed

In Collondrez v. City of Rio Vista, published March 16, 2021, the First District Court of Appeal, Division 3 affirmed in part and reversed in part a trial court's ruling on an anti-SLAPP special motion to strike.  When the plaintiff was a police officer, he received a notice of intent to impose discipline for allegedly falsifying a police report concerning an arrest and use of force.  The officer pursued his Skelly rights and administrative appeal, but settled before the appeal was arbitrated.  A provision of the settlement agreement required the city to give the plaintiff prior notice before releasing disciplinary notices and reports concerning him. When Penal Code section 832.7, requiring disclosure of police personnel records pertaining to sustained findings of dishonesty or making false reports, went into effect, the city received media requests under the California Public Records Act and section 832.7 for the plaintiff's records.  The city released them, giving the plaintiff notice before some but not all of the releases.  Due to media coverage, the plaintiff's then-current employer fired him.  The plaintiff sued the city for breach of contract, invasion of privacy, interference with prospective economic advantage, and intentional infliction of emotional distress.  The trial court denied the city’s anti-SLAPP suit as to the breach of contract and privacy counts, and granted it as to the other counts.  It found the entire action arose from acts in furtherance of free speech and in connection with an issue of public concern, but found the plaintiff made a showing he would likely prevail on the breach of contract and privacy counts.

The appellate court agreed that the action arose out of conduct protected by the anti-SLAPP statute.  The focus is the defendant’s activity giving rise to the statute.  Here, the activity is release of the plaintiff’s personnel information to media outlets.  That is the activity that gave rise to the plaintiff’s alleged harm.  The addition of breach of contract causes of action does not change the gravamen of the suit.  Providing information to news outlets involves a matter of public interest.  The court rejected the plaintiff’s argument that anti-SLAPP did not appear because the city had a nondiscretionary duty to comply with the CPRA.  The CPRA requires agencies to make determinations whether the requested records are subject to or exempt from disclosure, and whether public interest in nondisclosure outweighs that served by disclosure.  That determination is not immune from the chilling effect of potential litigation anti-SLAPP is designed to prevent. 

The appellate court disagreed with the trial court’s determination that the plaintiff was likely to prevail on the breach of contract and invasion of privacy claims.  The court concluded the disclosure was required by Penal Code section 832.7(b)(1)(C).  The plaintiff contended that the statute required a “sustained finding” of dishonesty, which requires completion of the administrative appeal process.  The appellate court concluded that the “sustained finding” language includes an agency finding that remains in place because the plaintiff settles the case before his administrative appeal is heard.  The appellate court further rejected the plaintiff’s argument that the agency failed to properly redact information in the produced files as required by statute.

Using "Police Lead" Position on Passively Resisting Suspect Violates Clearly-Established Law

In Rice v. Morehouse, published March 8, 2021, the 9th Circuit reversed partial summary judgment granted to police officer defendants in a police use of force case.  An officer made a traffic stop of plaintiff for changing lanes without signaling for five seconds first. The plaintiff showed the officer his license on command, but refused to show registration and proof of insurance.  The officer called in a "Code 3 assist," which is the most urgent request for backup officers.  The plaintiff refused the officer's orders to exit the car.  The officer called in an update downgrading the backup assist.  The arriving officers were not on the frequency and did not receive that call.  Officers including the defendants arrived.  The initial officer told the backup officers that the plaintiff was not complying with her instructions, she she just needed somebody to help her get the plaintiff out of the car.  The plaintiff continued to refuse to exit the car, but did roll down his window and unlock the car.  The defendant officers pulled the plaintiff out of the car.  The plaintiff asserts he did not resist.  After they removed the plaintiff, the defendant officers attempted to hold the plaintiff in a "police lead" position, gripping both his arms, tripping him, and throwing him to the ground face-first as a "takedown" maneuver.  Officers repeatedly struck and kneed the plaintiff on the ground.  The district court granted the defendant officers who participated in the takedown summary judgment for the takedown, based on qualified immunity.  The rest of the case against the defendant officers for the scrum after the takedown proceeded to trial, at which the defendants prevailed.  The plaintiff appealed.

The 9th Circuit first ruled that the plaintiff's appeal from the final judgment would be interpreted to permit appeal from the partial summary judgment in favor of the officer defendants, particularly given the centrality of the issue in the district court and the appellate briefs.  The court determined that, resolving material issues of fact in the plaintiff's favor, a reasonable jury could find that the officers used unreasonable force.  The plaintiff's passive resistance did not present an emergency, the purported traffic offense was minor, a jury could find that the officers could not have reasonably believed the plaintiff had committed a serious crime and that he did not present an immediate threat to the officers or others, and that the plaintiff was not actively resisting arrest but rather passively resisting arrest.  The officers also failed to consider what other tactics, if any, were available.  Officer failure to consider clear, reasonable, and less intrusive alternatives to the force used militates against finding the use of force reasonable.  The law clearly established that use of substantial force against a passively resisting person violated the Fourth Amendment.  The officers therefore were not entitled to summary judgment based on qualified immunity.

A Plaintiff Who Seeks Prospective Relief That Has Been Rendered Moot May Still Pursue Civil Rights Suit for Nominal Damages

In Uzuegbunam v. Presczewski, published March 8, 2021, the U.S. Supreme Court reversed a circuit court decision that a plaintiff could not maintain standing in a lawsuit alleging violation of the right to free speech.  A student of a public university was told that even though he had a permit to speak in a designated speaking area on campus, he had to stop speaking because his speech was drawing complaints.  He and another student, who was discouraged from speaking, brought suit for injunctive relief and nominal damages based on alleged violation of their First Amendment rights.  In response to the suit, the university changed its policy.  The university then argued the suit was moot.  The students agreed the injunctive relief was moot, but argued that the nominal damages claim conferred standing.  The circuit court stated a claim for nominal damages may save a suit for compensatory damages from mootness, but not a suit that never sought compensatory damages.

The Supreme Court majority disagreed.  Standing requires an injury in fact, fairly traceable to the challenged conduct, and a remedy that is likely to redress the injury.  The third element is the issue here:  Whether nominal damages can redress the injury.  Examining common law, the court determined that every legal injury causes damage, so that nominal damages are awardable absent evidence of other (compensatory, statutory, or punitive) damages, including where there was no apparent continuing or threatening injury for nominal damages to redress.  Therefore, a request for nominal damages satisfies the redressability element of standing where a plaintiff's claim is based on a completed violation of a legal right.

The Chief Justice dissented, and opined that redressability required more than a dollar at stake.  Both the Chief Justice and a concurring justice also opined that where only nominal damages are at stake, a defendant should be able to end the lawsuit by paying the nominal damages.

Although Officers Had Probable Cause to Arrest Suspect, They Are Not Immune from Negligence Liability for Interfering with Paramedic Treatment; Immunity for Injuries to Prisoners Does Not Apply to Public Employees

In Collins v. County of San Diego, published February 17, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment entered after jury trial.  County sheriff's deputies investigated reports from the plaintiff that resulted from the plaintiff's delusions.  The plaintiff's roommates told the deputies that the plaintiff had been acting oddly.  There was conflicting evidence over whether the roommates said the plaintiff had been binge drinking.  The plaintiff left the apartment, stumbled, and fell.  A passerby called 911.  Paramedics arrived and began assessing the plaintiff.  An ambulance was called.  Sheriff's deputies, including one who had been involved in the call to the apartment, arrived and arrested the plaintiff.  There was conflicting evidence over whether the paramedics had completed assessment of the plaintiff.  The arresting deputy took the plaintiff to jail.  There, a nurse employed by the county conducted a medical intake exam.  The nurse decided the plaintiff was safe to place in a jail cell.  The plaintiff sustained a forehead injury, treated with a band-aid.  The jail doctor visited the plaintiff in jail.  He was not told of the plaintiff's hallucinations or incoherent statements, or that he had fallen and injured his head.  The doctor concluded no further care was needed.  The plaintiff fell again.  He was taken to a private hospital.  He was diagnosed with severely low sodium level and a brain bleed to his frontal lobe.  The doctors at the hospital allegedly mistreated the condition, further injuring the plaintiff.  The plaintiff settled with the hospital and its doctors.  He then sued the county, two of the arresting deputies, and the two nurses who saw him in jail.  The jury found the deputies and nurses negligent, but rejected an unlawful arrest claim on the ground the deputies had probable cause to arrest the plaintiff.

The court of appeal rejected the defendants' various attacks on the judgment.  The defendants argued that the negligence verdict against the deputies was inconsistent with the finding that they had probable cause to arrest.  The appellate court concluded that while probable cause would immunize the deputies from liability for a negligent arrest, it did not immunize them from negligence apart from the arrest.  Here, there was evidence supporting the plaintiff's theory that the officers negligently interfered with the paramedics due to arresting him before they had a chance to finish their examination.  The court also rejected an attack on an instruction that the deputies were liable for the doctors' and hospital's alleged negligence in treating him.  A defendant who negligently injures a plaintiff is liable for any subsequent injury from negligent treatment of the injury they caused.  The court rejected the argument that Government Code section 845.6 immunized the deputies or county from liability for the subsequent medical treatment.  Section 845.6 applies only to injuries to prisoners, and the plaintiff was not yet a prisoner when the deputies allegedly interfered with the paramedics.  The appellate court rejected the argument that the individual defendants were immune from liability for the plaintiff's injuries in jail under Government Code section 844.6's immunity for injuries to prisoners.  Section 844.6 immunizes only public entities, not public employees.  The nurse who initially examined the plaintiff argued he was immune under Government Code section 855.6, which immunizes examinations to determine if persons are dangers to themselves or others.  The court ruled that the immunity did not apply, because it is inapplicable to examinations for the purpose of treatment.  One of the purposes of the examination was to determine whether the plaintiff needed medical treatment.  Finally, the court approved the trial court's apportionment of the offset from the doctors' and hospital's settlement against the judgment, which did not reduce the percentage of the settlement amount apportioned to noneconomic damages based on MICRA limitations on noneconomic damages.  MICRA caps apply only to judgments, not settlements.