Government Liability Update

University Not Immune to Potential Liability for Failing to Prevent Mentally Ill Student from Attacking Fellow Student

In Regents of the University of California v. Superior Court (Rosen), published December 3, 2018, the Second District Court of Appeal, Division 7, on remand from the California Supreme Court, affirmed denial of the defendant Regents and university personnel's motion for summary judgment in a negligence case brought by a UCLA student who was stabbed in chemistry lab during a class by a fellow student.  Before the attack, the university received several indications that the attacker was having hallucinations, accused other students of insults that they did not make, and physically confronted one student.  The university moved him to a different dorm and required him to participate in counseling.  The plaintiff's experts opined that the university should have taken further action to address the disturbed student.  The university contended that it did not violate any duty of care to the injured student, and alternatively that it was immune from liability.  It challenged denial of its summary judgment motion by petitioning for writ relief.  The appellate court initially found no duty and granted the petition.  The California Supreme Court reversed, holding that universities owe a duty of reasonable care to students to protect them from foreseeable acts of violence in the classroom or during curricular activities.  It remanded the matter to the appellate court to determine the standard of care under the duty, whether triable issues of fact existed on breach of the duty, and whether the defendants were statutorily immune.

The appellate court held that the standard of care that applied was the reasonable person standard that generally applies to negligence cases, rather than the more limited standard applied to mental health professionals who fail to prevent their patients from attacking others.  The plaintiff must prove three elements to establish the university's vicarious liability under Government Code section 815.2 for its personnel's breach of the duty to protect students:  That the injury occurred while the plaintiff was engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services; that the university was aware of information that placed, or should have placed, it on notice that the perpetrator presented a foreseeable threat of violence to other students; and that the university failed to act with reasonable care in response to the foreseeable threat of violence.  The reasonable person standard of care is similar to that applied in K-12 school situations, although the degree of care may vary due to the different circumstances in a university, which deals with older students.  Based on the information the university personnel had before the attack, triable issues of fact exist on whether the student presented a foreseeable risk of violence and whether the university could have done more to prevent the attack.  The defendants are not immune under Government Code section 856, which immunizes decisions on whether to confine a person for mental illness.  The plaintiff did not contend that the university is liable for failing to confine the attacker, but rather that the school was negligent in its behavior toward the attacker, including failure to use the intervention techniques that were available to the school under its existing policies and procedures.  Discretionary immunity under Government Code section 820.2 also did not apply.  The  immunity applies only to policy and planning decisions.  The plaintiff did not challenge the school's policies and procedures, but rather how those policies were implemented.

Trial Court Did Not Abuse Discretion in Limiting Mini-Openings and Declining Challenges for Cause in Student Supervision Case

In Alcazar v. Los Angeles Unified School Dist., ordered published November 15, 2018, the Second District Court of Appeal, Division 1 affirmed judgment for the defendant school district after a jury trial.  The plaintiff was a middle-school student with learning disabilities who fell and was injured after swinging on a tree branch that broke.  The plaintiff alleged the school failed to properly supervise him.  During voir dire, the trial court initially allowed the parties to give mini opening statements.  During questioning of the first panel, some jurors expressed pre-judgment of the case based on the details given during the mini-openings.  The court then ordered that for subsequent panels the parties could not give mini-openings; instead, the court would read the statement of the case to which the parties had agreed.  The plaintiff's counsel was permitted to give several details of the case in his questioning of jurors.  Two jurors expressed uncertainty on whether they could be fair, but ultimately said they could.  The court declined the plaintiff's challenge to the jurors for cause.  The jury entered a defense verdict.  The plaintiff alleged that the court had exceeded its discretion under Code of Civil Procedure section 222.5 in limiting the use of mini-openings; and that the court abused its discretion in denying the challenges for cause.

The appellate court affirmed the trial court's exercise of its discretion.  Section 222.5, as it existed at the time of the trial, preserved the trial court's discretion to disallow mini-openings depending on the circumstances.  The circumstances here included jurors stating they had prejudged the case based on the mini-openings given.  The court has discretion to deny a challenge for cause, unless the juror expresses views indicative of an unalterable preference in favor of one side.  Since both jurors here stated they could keep an open mind, the court had discretion to deny the challenge.

Officer Violated Fourth Amendment by Entering Home under Ruse for Administrative Inspection, but Is Entitled to Qualified Immunity

In Whalen v. McMullen, published October 30, 2018, the 9th Circuit affirmed summary judgment in favor of a Washington State Patrol detective in a suit alleging the officer conducted a search of the plaintiff's house that violated the Fourth Amendment.  The plaintiff was receiving Social Security Disability benefits.  A task force that investigates potential social security fraud, investigated the plaintiff.  The task force designates investigations as either civil, criminal, or administrative.  As was common for administrative investigations, the defendant investigating detective did not obtain a search warrant, and used a ruse to communicate with the plaintiff:  the officer stated he was conducting a law enforcement investigation of identity theft.  The plaintiff spoke with the officer in front of her house, and then invited him inside.  The officer wore two hidden video cameras.  The officer spoke with the plaintiff for an hour, then left.  Based on the information the officer provided, the plaintiff's benefits were denied in part.  She was not subject to any civil or criminal action.  The plaintiff alleged that the portion of the detective's encounter with her inside her home violated the Fourth Amendment.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit ruled that the entry into the home, without a warrant, with hidden video cameras, and under cover of a ruse, violated the Fourth Amendment as an improper warrantless search.  It distinguished cases where, as a condition of receiving benefits, people had to allow warrantless entry into their homes, because in those cases the grounds for the entry are transparent.  Here, because the investigator identified himself as a law enforcement officer, the investigation was under a ruse and the plaintiff did not know about the video cameras, the investigator gained entry by invoking the individual's trust in her government, and then betraying it.  But because no precedent clearly established that the detective's actions would violate the Fourth Amendment, the detective was entitled to qualified immunity.

Mental Patient Who Is Danger to Himself or Others Cannot Avoid Involuntary Medication Based on Belief in a Religion with a Congregation of One

In California Department of State Hospitals v. A.H., published September 21, 2018, the Second District Court of Appeal, Division 6 affirmed a Qawi order authorizing a state mental hospital to involuntarily administer antipsychotic medication to the defendant to treat his severe mental illness.  The defendant asserted that the involuntary medication violated his free exercise of his religion.  The defendant committed arson, lapsed into psychosis, was committed as a mentally disordered offender, was violent toward hospital staff, and threatened to commit a mass shooting if released.  Hospital mental health staff conducted two administrative hearings, and determined that antipsychotic medication was required to treat the defendant.  The defendant petitioned the superior court for relief from the order.  The trial court found that the defendant lacked capacity to refuse medical treatment and issued the Qawi order.

The appellate court noted that the federal and state constitutions prohibit involuntary medication that burdens a patient's free exercise of religion unless a compelling state interest outweighs the patient's interest in free exercise.  The Religious Land Use and and
Institutionalized Persons Act of 2000 and the Lanterman-Petris-Short Act contain similar protections.  The defendant  bears the initial burden of showing that (1) he seeks to engage in the exercise of religion and (2) the Qawi order substantially burdens the exercise of his religion.  The religious belief must be seriously held, and not a purely secular religious concern.  The defendant had been taking other antipsychotic medications, but suddently announced that his god had "more or less" told him not to use antipsychotic drugs.  The defendant suffered from a disorder that was not entirely religious based.  Substantial evidence supported the conclusion that the defendant's religious beliefs were not sincere, and that the state's compelling interest in preventing an individual from harming himself or others justified the Qawi order.

Jury Instruction to Defer to Prison Officials Limited to Evidence Treatment Results from Security Concerns

In Shorter v. Baca, published July 16, 2018, the 9th Circuit reversed the denial of a new trial motion after a jury trial that resulted in a defense verdict.  When the plaintiff, a pretrial detainee, arrived at the county women's jail, a social worker diagnosed her with a mood disorder.  She was placed in the unit for mentally ill women.  The plaintiff presented uncontroverted evidence that the county had a policy of shackling the women to steel tables in the middle of an indoor recreation room as the recreation for the women, and that jail officials as a matter of routine would chain prisoners, naked, to their cell doors for hours at a time without access to food, water, or a toilet if they did not comply with required searches.  The only justification offered for curtailing the plaintiff's meals, showers, and recreation was a concern about overcrowding and understaffing in the facility. The court gave a 9th Circuit model jury instruction that the jury must give deference to jail officials in deciding the plaintiff's conditions of confinement and excessive search claims.

The 9th Circuit held that the deference instruction should not have been given.  The instruction ordinarily should be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy.  That was not the case for the claim that the jail curtailed the plaintiff's meals, showers, or recreation.  The appellate court further ruled that the instruction should not have been given as to the plaintiff's complaint that the search procedure of chaining naked prisoners to doors for hours.  While there was evidence this procedure was partially security-based, substantial evidence supported the plaintiff's argument that the procedure was an unnecessary, unjustified, and exaggerated response to the need for security.  The deference instruction should not be given under those circumstances either.

Adopted-Out Son Has No Standing to Sue Police for Death of Biological Mother

In Wheeler v. City of Santa Clara, published July 3, 2018, the 9th Circuit Court of Appeals affirmed a district court order dismissing a complaint.  The plaintiff's biological mother died in a confrontation with police.  The plaintiff was the decedent's only living relative.  He was adopted out to other parents as an infant.  He alleged he maintained a relationship with the decedent throughout her life.  He sued the city and its officers under 42 U.S.C. section 1983, Title II of the ADA, and Section 504 of the Rehabilitation Act.  He asserted two section 1983 claims on his own behalf:  a Fourteenth Amendment claim for loss of familial relationship, and a related Monell claim.  He asserted a Fourth Amendment claim and the ADA and Rehabilitation Act claims on behalf of the decedent.  The complaint named "Doe 1" as the representative of the decedent's estate.  The district court concluded that the plaintiff had no standing, and dismissed the complaint without leave to amend.

The 9th Circuit held that under 42 U.S.C. section 1988(a), which borrows state law to fill gaps in federal law where it is not inconsistent with federal law, California's survival statute applies to section 1983 actions.  Because the plaintiff was neither a successor in interest to the decedent nor a personal representative of his estate, he had no standing to bring claims on behalf of the decedent's estate.  Application is not inconsistent with section 1983 law, particularly since a claim could have been brought by a personal representative if one had been appointed during the statute of limitations.  Section 1988(a) does not apply to the ADA or Rehabilitation Act.  Instead, the uniform law concerning the survival of federal claims applies.  Under that law, an individual with no legal relationship to the decedent, such as the plaintiff, cannot bring survival claims.  An adopted-out child does not have a sufficient relationship with a biological parent to bring a Fourteenth Amendment claim for deprivation of a familial relationship with the parent.  The district court did not abuse its discretion in declining leave to amend so that the plaintiff could seek appointment as personal representative and replace Doe 1 as the representative plaintiff.  Such an amendment would bring in a new party, and the party's claim would not relate back to the original filing of the complaint.  The statute of limitations had run by the time the motion to dismiss was heard.

Judge Wardlaw concurred in the result, but advised that in future cases different parent-child relationships i might be treated differently.

Officers Entitled to Qualified Immunity for Using Lethal Force against Erratically-Behaving Suspect Who Charges Them with Stabbing Weapon

In Vos v. City of Newport Beach, pubilshed June 11, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted to a city and two of its police officers in a police shooting case. Because the undersigned's firm represented the defendants in the case, the undersigned will refer readers to the text of the case rather than summarizing the holding.

District Failed to Reasonably Accommodate Probationary Employee, or Engage in Interactive Process, When It Granted Her Medical Leave and Terminated Her While She Was on Leave

In Hernandez v. Rancho Santiago Community College Dist., published May 3, 2018, the Fourth District Court of Appeal, Division 3 affirmed a judgment after bench trial holding that the defendant district failed to reasonably accommodate the plaintiff or engage in an interactive process with her, in violation of the Fair Employment and Housing Act.  In a previous hiring by the district, the plaintiff was injured on the job.  During the hiring at issue, she was a probationary employee.  When she had been working for the district for six months, her doctor recommended surgery for conditions caused by the workplace injury.  She spoke to the district's risk manager, and told him she was concerned that she would lose her job if she had the surgery during her probationary period.  He told her she could not be fired on a workers compensation case.  She said that if he had told her differently, she would have put off her surgery until after her probationary period.  She estimated she would be off work three to four months.  The district granted her medical leave.  While she was on leave, the district terminated her employment.  When she called human resources, she was told that she should have known better than to take personal leave while on probation.  She was not told she could reapply for her position.  The district argued that it had reasonably accommodated the plaintiff by giving her medical leave, and that under Education Code section 88013(a) it had to terminate her after twelve months' probation or else she would have become a permanent employee without having undergone evaluation.

The appellate court agreed with the trial court that the district was liable under FEHA for not reasonably accommodating the plaintiff.  It held that the district could have deducted from the statutory probationary period the time that the plaintiff was on medical leave.  Because it did not, it failed to reasonably accommodate her.  The appellate court also agreed with the trial court that the district failed to participate in a good faith interactive process with the plaintiff.  Telling the plaintiff she could not be fired while on medical leave, and then firing her while she was on leave, was not acting in good faith.  Nor was rebuffing the plaintiff when she contacted human resources for an accommodation.

Disputed Facts on Whether Unarmed Decedent Raising Hands Assumed a Shooter's Stance Prevent Summary Judgment for Police Officer Who Shot Decedent

In Longoria v. Pinal County, published October 10, 2017, the 9th Circuit Court of Appeals reversed a district court's grant of summary judgment to a police officer who shot an unarmed suspect in the back.  The decedent led police officers on a chase while acting erratically.  His car was stopped by a PIT maneuver.  Officers repeatedly observed him during the chase and announced that he did not have a gun.  After the decedent got out of the car, he did not comply with orders to show his hands.  The supervising officer ordered use of less-lethal weapons.  Officers shot decedent with beanbag rounds and a taser dart.  The decedent turned toward his car--away from the defendant officer--and raised his empty hands over his head.  The defendant officer then fired two rounds into the decedent's back from 25 to 45 feet away.  The officer testified that he saw the decedent assume a shooter's stance.  No other officer present saw such a stance.  There was video of the incident.  The district court, relying on a frozen frame of the video, agreed that a reasonable officer could have perceived a shooter's stance, and granted the defendant officer summary judgment based on qualified immunity.

The 9th Circuit held that the district court erred, because the evidence and circumstances raised genuine issues of fact on whether the decedent assumed a shooter's stance, and the district court improperly resolved those disputes in the officer's favor rather than the decedent's.  The district court should not have relied on a frozen frame of the video, where the officers would have perceived events in real time and the videos, shot in real time, did not establish that the defendant officer was correct or credible.  If the officer shot an unarmed suspect who posed no immediate threat, it was clearly established that the shooting would violate the Fourth Amendment.  The officer was therefore not entitled to qualified immunity.

Class Member Standing to Bring Title II ADA Claim Is Based on Facility Access, Not Program Access; ADAAG Standards Apply to Public Rights of Way, Parks, and Playgrounds

In Kirola v. City and County of San Francisco, published June 22, 2017, the 9th Circuit affirmed in part and reversed in part a district court's decision after a bench trial in a Title II ADA class action challenging access to the disabled for San Francisco's sidewalks, libraries, pools, and parks.  The district court ultimately decided that the class representative lacked Article III standing, because she had failed to prove inaccessibility to the city's programs.  Alternatively, the court decided the case on the merits, and rejected the plaintiff class's experts by holding they had erred in applying Americans with Disabilities Act
Accessibility Guidelines (ADAAG) standards to public rights of way, parks and playgrounds.

The 9th Circuit held that the district court had conflated standing with success on the merits.  To prove Article III standing in a Title II ADA case, the plaintiff had to prove that she had encountered access barriers at a facility, and either intended to return or was deterred from returning.  Access to the program as a whole is the standard for deciding the merits.  The appellate court also held that ADAAG standards do apply to public rights of way, parks, and playgrounds.  It therefore held the district court erred by rejecting the plaintiff's experts testimony on that ground.  The appellate court upheld other findings by the district court.  It remanded the action for further proceedings.