Government Liability Update

Design Immunity Does Not Apply to Failure to Warn of Dangerous Condition of Which Entity Has Notice

In Tansavatdi v. City of Rancho Palos Verdes, published April 27, 2023, the California Supreme Court affirmed a lower appellate court decision that partially reversed an order granting the defendant city summary judgment.  While riding a bicycle on a city street, the plaintiff's decedent collided with a turning truck.  The plaintiff contended the street was a dangerous condition of public property because the portion of the street where the accident occurred lacked a bicycle lane.  She further contended that the city failed to warn of a concealed trap created by the absence of the bicycle lane.  The city obtained summary judgment based on design immunity under Government Code section 830.6.  The order granting summary judgment did not specifically address the plaintiff's failure to warn theory of liability.  The lower appellate court affirmed the grant of design immunity.  But it reversed summary judgment, because the trial court had not addressed the failure to warn cause of action.  The appellate court held that under Cameron v. State of California (1972) 7 Cal.3d 318 a public entity may be held liable for failure to warn of a a concealed dangerous condition even if the dangerous condition was caused by design immunity.  The Cameron case based this holding on Government Code section 830.8, which establishes immunity from liability for failure to place warning signs, but exempts warning signs necessary to warn of a dangerous condition that would not be reasonably apparent to those using the roadway with due care.  The lower court declined to follow Weinstein v. Cal. Dept. of Transp. (2006) 139 Cal.App.4th 52, which held that design immunity applies to failure to warn of a danger created by a design that is covered by the immunity.  The California Supreme Court granted the city's petition for review.

The Supreme Court agreed that under Cameron, design immunity for a dangerous condition does not necessarily shield the public entity form liability for failure to warn of the same dangerous condition.  Design immunity under Government Code section 830.6 immunizes liability for having created a dangerous traffic condition under Government Code section 835(a) (liability for a public employee negligently creating a dangerous condition), but does not necessarily immunize liability for failing to warn of a known dangerous traffic condition under Government Code section 835(b) (failing to warn or protect against a dangerous condition of which the entity had actual or constructive notice).  In addition to loss of design immunity due to changed circumstances, a public entity can be held liable for failure to warn of a dangerous condition of which it had notice, even if creation of the condition is covered by design immunity.  There are restrictions on that theory of liability.  First, the plaintiff must prove the public entity had actual or constructive notice that its design resulted in a dangerous condition.  Second, failure to warn claims may be subject to a separate, more limited form of statutory immunity:  the signage immunity set forth in Government Code section 830.8.  Because of the "concealed trap" exception to section 830.8, the plaintiff must overcome signage immunity by establishing the accident-causing condition was a concealed trap.  Third, the plaintiff must prove that the absence of a warning was an independent, separate  concurring cause of the the accident, by establishing that the absence of a warning sign was a substantial factor in causing the accident.  The court declined to address whether a public entity can be held liable if the public entity is able to show that the presence or absence of warning signs was part of the approved design.  The court disapproved Weinstein and another case with a similar holding, Compton v. City of Santee (1993) 12 Cal.App.4th 591.  Further, while the court noted that a discussion in Cornette v. Dept. of Transp. (2001) 26 Cal.4th 63 applying design immunity to liability under Government Code section 835(b) "is arguably in tension with some of our discussion in Cameron," it concluded that application of design immunity to section 835(b) was not the legal issue presented in Cornette, and was not intended to modify or overrule Cameron.

(Pollak, Vida & Barer, along with other counsel, represents the defendant city in this case.)

City Is Not Liable for Plaintiff Tripping over Negligently-Parked Dockless Scooter

In Hacala v. Bird Rides, Inc., published April 10, 2023, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a dismissal after demurrer.  Plaintiff, walking on a city sidewalk just after twilight, tripped on the back wheel of a Bird scooter sticking out from behind a trash can, and fell.  She and family members sued the city and Bird.  The complaint alleged that the city was vicariously liable under the Government Claims Act for its employees' alleged negligent failure to monitor Bird's compliance with its permit with the city (under which Bird agreed to restrictions on scooter parking, to remove improperly-parked scooters within two hours, and to educate its agents and customers to follow the city's parking standards) and to use the city's powers to impose fees on Bird.  The trial court sustained the defendants' demurrer without leave to amend.  The court concluded that a third-party user had negligently parked the scooter, and the defendants had no special relationship with any party that required them to protect the plaintiffs from the third party's alleged misconduct.

The appellate court affirmed the demurrer as to the city, on the ground that the city was immune from liability.  The complaint premised city liability on failure to enforce the permit.  Government Code section 821 immunizes a public employee from liability for injuries caused by failure to enforce an enactment.  Under Government Code section 815.2(b), the city's vicarious liability for its employees' acts was subject to this immunity.  The city was also immune from liability under Government Code sections 818.2 (failure to enforce law) and 818.4 (permit immunity).  The plaintiffs contended that the permit imposed mandatory, ministerial duties of enforcement on city personnel.  But the language of the permit, which stated that the city reserved the right to amend, modify, or change the terms and conditions of the program and take other steps at its discretion, directly contradicts plaintiffs' contention that the permit imposes mandatory duties.  The city had discretion to remove parked scooters or to revoke Bird's permit.  Plaintiffs argued that they could amend the complaint to state a claim for a dangerous condition of public property under Government Code section 835.  But the city cannot be held liable for third party negligence--such as a party negligently parking a scooter--absent a physical deficiency in the property itself that increased or intensified the condition of the property.  The city's sidewalks are not defective or dangerous pieces of property simply because third parties may improperly use them in a way that could cause harm to others.

The court reversed the demurrer as to Bird.  One justice dissented from that result.

Government Code Immunity for Controlling Disease May Be Asserted on Demurrer

In Greenwood v. City of Los Angeles, published March 27, 2023, the Second District Court of Appeal, Division 1 affirmed a judgment in the defendant city's favor, entered after the City's demurrer was sustained.  The plaintiff was a deputy city attorney.  She alleged that there was  a typhus outbreak near the city building where she worked; and that an accumulation of trash and other items at and adjacent to the building caused and contributed to an outbreak of typhus there.  She alleged the city was on notice of this dangerous condition of the building, and failed to take measures to protect against it.  The plaintiff alleged she was exposed to typhus in and around the building, and contracted the disease.  The city demurred on the grounds including immunity under Government Code section 855.4.  After multiple amendments, the trial court sustained the city's demurrer on that ground without leave to amend.

The appellate court agreed that section 855.4 immunity barred the lawsuit.  Section 855.4 immunizes public entities and employees from injuries resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision resulted from the exercise of discretion.  It also immunizes acts implementing such decisions, if they are carried out with due care.  The plaintiff argued that it could not be determined on the face of her complaint that her harms resulted from exercise of discretion, and that the complaint alleged lack of due care in implementing any exercise of discretion.  The plaintiff urged the court to draw from the case law interpreting the general discretionary immunity statute for public employees, Government Code section 820.2.  The appellate court declined.  It noted that section 820.2 applies only to public employees, while section 855.4 applies to both public entities and public employees.  Further, section 820.2 addresses only acts and omissions, while section 855.4 requires decisions to perform or not to perform an act.  Due to these differences, cases interpreting section 820.2 are not directly on point.  Instead, in interpreting language in government immunity statutes, the court must concentrate on the reasons for granting immunity.  The purpose of section 855.4 is separation of powers.  Therefore, to determine whether an exercise of discretion took place for purposes of section 855.4, the court should consider whether the challenged decision was one expressly entrusted to a coordinate branch of government, rather than the courts, in an area of of quasi-legislative policy-making which is sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.  A factor to consider is whether the entity made the challenged decision based on a specific legal duty; if so, it is far less likely the entity will be exercising discretion.  Under this analysis, it is apparent from the face of the complaint that the city's decision not to take action against the spread of typhus on the public property adjacent to the building was an exercise of discretion under section 855.4.  Nothing in the complaint suggests the ministerial performance of a mandatory duty.  Further, the section 820.2 requirement that the defendant bear the burden of establishing that an exercise of discretion took place, which precludes demurrer, should not be applied to section 855.4, at least in the context of a claim against a public entity rather than a public employee.  Since the face of the complaint established grounds for demurrer under the subdivision of section 855.4 dealing with discretionary decisions, the allegation that the decisions were not carried out with due care cannot defeat demurrer.   A defendant need not qualify for immunity under both subdivisions to be immune.  Each subdivision provides a separate immunity from suit.

A concurring justice questioned whether section 855.4 applies to a public entity's responsibility to keep its facilities safe and sanitary.  She nevertheless opined that the allegations of the complaint fell within the ambit of section 855.4, even if it is read narrowly to apply only to governmental action or nonaction in response to disease outbreaks. 

Under Privette Doctrine, Public Entity Owner of Roadway Was Not Liable for Alleged Dangerous Condition of Property That Resulted in Subcontractor's Employee's Death

In Marin v. Department of Transportation, ordered published February 23, 2023, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant department.  The department subcontracted to a company construction work on the department's highway.  The contract expressly delegated matters of safety at the project to the subcontractor.  The contract also provided that the department's residential engineer at the project site was authorized to make the final decision on questions concerning the contract, including as to work quality and acceptability and the manner of the performance at work.  One night, the department, at the subcontractor's request, closed two lanes of the highway. The contractor marked the closure by using traffic signs and an arrow board, a cone pattern with reflective tape, multiple signs, and construction and street lights.  Several department employees were on site.  While an employee of the subcontractor was on the site working, a car operated by a drunk driver entered the closed lanes of the project site, and struck and killed the employee.  The employee's survivors sued the DOT for vicarious liability for the alleged negligence of its employees, and for maintaining a dangerous condition of public property.  The department moved for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 because the department properly delegated workplace safety to the subcontractor.  The plaintiffs contended that triable issues of fact existed on whether the department retained control over the construction project.  The trial court granted summary judgment.

The appellate court agreed that the Privette doctrine barred liability.  Under the doctrine, when the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to worker's compensation coverage, the doctrine of peculiar risk does not permit the employee to seek recovery of tort damages from the principal if the principal did not cause the injuries.  The doctrine does not apply if the hirer of the contractor retains control of the site, and the exercise of retained control affirmatively contributed to the injuries.  If the injury takes place after delegation of safety to the contractor takes place, the court presumes the contractor alone was responsible for any failure to take precautions.  To rebut the presumption, the hirer must induce--not just fail to prevent--the contractor's injury-causing conduct, or the hirer's retained control must contribute to the injury independent of any contribution by the contractor.  Here, the contract expressly delegating control to the contractor established the Privette presumption applied, shifting the burden to the plaintiff to raise a triable issue of fact.  The portion of the contract giving the department final decision on questions concerning the contract did not raise a triable issue on whether retained control affirmatively contributed to the employee's death.  Undisputed evidence established that the department did not direct or order the means and methods the subcontractor used to provide worker safety, did not have responsibility for setting up barriers, cones, or signs, and did not prevent the subcontractor from complying with its obligation to provide a safe work site.  Evidence that the department could have authorized further safety measures, and expected the subcontractor's employees to learn and follow department safety policies, at most shows that the department passively permitted an unsafe condition.  That is not affirmative contribution to the injuries.

No-Contest Plea Held in Abeyance and Dismissed Does Not Bar Suit under Heck v. Humphrey

In Duarte v. City of Stockton, published February 16, 2023, the 9th Circuit Court of Appeals reversed dismissal of the plaintiff's 42 U.S.C. section 1983 suit.  The plaintiff was involved in an encounter with city police officers in which force was used upon the plaintiff.  The plaintiff pleaded no contest to a charge under Penal Code section 148 for willfully resisting, obstructing,
and delaying a peace officer.  The court accepted the plea and ordered it held in abeyance.  The conditions from the plea form required the plaintiff to complete ten hours of community service and obey all laws.  Six months later, after another hearing, the judge dismissed the case, on the prosecutor's motion and "in the interests of justice."  The plaintiff sued for alleged excessive use of force and false arrest.  The district court concluded that the suit was barred by the plaintiff's guilty plea, under Heck v. Humphrey (1994) 512 U.S. 477.  It further concluded that the city and police department wre not "persons" subject to suit under section 1983.

The appellate court disagreed with both propositions.  Heck requires a conviction and subsequent sentence. Here, there was no conviction or sentence. The plaintiff was never found or proved guilty.  Although he pleaded no contest, a plea is not a conviction.  There is no conviction without a subsequent order from the court. Here, the plea was held in abeyance, and then the case was dismissed.  A dismissal is the opposite of a conviction.  Further, both municipalities and their police departments are entities subject to Monell liability under section 1983.

Immunity for Injury Caused by Prisoner Applies to FEHA Cause of Action

In Bitner v. Department of Corrections and Rehabilitation, ordered published January 26, 2023, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant department.  The plaintiffs were employed by the department as vocational nurses.  They alleged that while they were assigned to one-on-one suicide monitoring, they were subjected to acts of sexual harassment by inmates, and that the department failed to remedy the situation, in violation of the Fair Employment and Housing Act.  The trial court granted the department summary judgment under Government Code section 844.6, which immunizes public entities for injuries proximately caused by any prisoner.

The appellate court agreed that section 844.6 immunized the department.  It rejected the plaintiffs' arguments that section 844.6 did not apply to liability under FEHA.  Section 844.6 sets forth a list of statutory exceptions to the immunity, and FEHA is not included in that list.  When faced with conflicting statutes providing for governmental immunity and liability, the statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent.  The court further rejected the argument that FEHA is an exemption to section 844.6 because FEHA creates a "direct" duty.  Since all public entity liability is statutory, interpreting section 844.6 not to apply to any statute creating a "direct" duty would interpret the immunity out of existence.  Plaintiffs argued that the immunity did not apply because their injury was caused not only by the prisoner's acts, but also the department's acts in breaching its duty.  The court rejected this argument as well, both because the plaintiffs forfeited it by not arguing it in the trial court or properly setting it forth in their opening brief, but also on the merits.  Where the undisputed material facts show that the alleged injury was proximately caused by a prisoner, it is not enough for a plaintiff to simply present evidence that additional, concurrent causes may have also contributed to the same injury.  

Issues of Fact on Whether Resisting Suspect Posed Imminent Threat of Serious Harm and Whether Officers Had Time to Issue Deadly Force Warning Prevent Summary Judgment Based on Qualified Immunity

 

In Smith v. Agdeppa, published December 30, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed denial of a summary judgment motion based on qualified immunity.  Two police officers responded to a gym’s report of trespassing and disruptive conduct.  When they arrived, staff reported that a man in the locker room was irate, was not listening, had hurt a few gym members, and had assaulted security.  The police entered the shower area of the locker room, where the man was naked, and spent several minutes ordering the man to get dressed, to turn off his music, and to leave the gym.  The man ignored the officers except to raise his middle finger.  The officers attempted to handcuff the man.  For a minute and 20 seconds, the man used his size to thwart the smaller officers’ attempts to handcuff him.  As he resisted, both officers’ body cams were knocked off their uniforms.  The next three minutes were not visible on video, but the cams continued to record audio.The defendant officer alleges that after the cams fell down, the struggle escalated and turned violent.  One officer used her taser in dart mode on the man, and both officers used their tasers in stun mode.  The defendant officer testified that the man repeatedly struck him in the face and knocked him backward into a wall, disorienting him and causing him to drop his taser.  According to the officer, the man straddled his partner and pummeled her head and face with punches.  He believed her life was in danger.  He drew his weapon and gave the man a verbal warning that he needed to stop.  He testified that the man continued to pummel the officer, so the defendant officer fired five shots from six to eight feet away.  The man began falling backwards and away when he fired the final shot.  The district court found that evidence contradicted the defendant officer’s version of events.  The warning to stop cannot be heard in the bodycam audio.  Security guards’ accounts, recounted in an internal investigation of the shooting, differed from the officers’ accounts in several respects.  A guard said that the man was holding the defendant officer’s arm when the shots were fired, contradicting the officer’s statement that he was standing away from the man.  The guards disagreed with the officers on the number of shots fired, the whether the man reached for the defendant officer’s firearm, and whether the man was holding the officer’s wrist until after the second shot was fired.  The internal investigation concluded the defendant officer’s use of lethal force was unreasonable, because there was no exigency preventing the officers from withdrawing and redeploying with greater resources.  Further, the evidence indicated the officers’ injuries were only minor, according to the panel majority.  An autopsy report also put into question the officer’s statement that he shot the man from six to eight feet away.  The district court concluded that a jury could find a reasonable officer in the defendant’s position would have understood his use of deadly force violated the man’s Fourth Amendment ri

 

The panel majority upheld the district court’s finding. In an interlocutory appeal from denial of qualified immunity at the summary judgment stage, the court determines whether the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right; and whether the right in question was clearly established at the time of the officer’s action.  If either question is answered in the negative, the officer is entitled to qualified immunity.  Deadly force is reasonable only if the officer has probable cause to believe the suspect poses an immediate and significant threat of death or serious physical injury to the officer or others.  Further, an officer must give warning before using deadly force whenever practicable.  When the suspect is shot dead, and other evidence in the record (such as medical reports, contemporaneous statements by the officer, available physical evidence, and any expert testimony proffered by the plaintiff) is inconsistent with material evidence offered by the defendant, the majority held, qualified immunity should not be granted.  A jury should consider the contradictory evidence and decide whether they were persuaded by the officers’ testimony.  Here, depending on what happened in the locker room, a jury could find that the officer had an opportunity to give the suspect a “deadly force warning” before escalating to deadly force.  The officer provided several warnings before using intermediate force, but at no point did he warn the suspect he was escalating to the use of his firearm.  The officer’s version of events was materially contradicted by the record, including whether the officer was engaged in hand-to-hand combat with the suspect or stood six to  eight feet away.  While the suspect posed some danger to the officers’ safety by actively resisting arrest, a jury could reasonably reject the officer’s description of a deadly fight and find that a reasonable officer in the defendant’s position would not have believed the fellow officer or anyone else was in imminent danger.  Further, the officer never claimed it was not practicable to give a deadline force warning.  On the contrary, the officer gave a declaration that he gave a verbal warning, stating words to the effect that the suspect needed to stop.  Because the officers had tased the suspect a few times, a warning to stop would do nothing to warn the suspect that the officer was preparing to ramp up to use deadline force.  While the officer would likely prevail if a jury believed his version, the court cannot overlook the internal investigation’s contrary finding that no exigency required use of deadly force.

 

A dissenting judge opined that the undisputed facts, including the audio from the body cams and two independent witnesses’ verification of the officer’s account, indicated that the officers faced an imminent threat, and that the law did not require them to issue another warning before using deadly force.

Principal's Warning to Teacher Wearing MAGA Hat to Training Raises Triable Issue of Fact of First Amendment Retaliation

In Dodge v. Evergreen School Dist. #114, published December 29, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment for the defendants.  The plaintiff teacher wore a red Make America Great Again hat to mandatory teacher training, taking the hat off when he entered the school where the training was held.  The professor leading the training reported to the school's principal that she felt intimidated and traumatized by the hat.  The principal also learned that the hat upset a few teachers at the training.  She spoke with the school's HR officer to discuss what could be done.  They agreed the best option was to talk to the teacher directly.  She told the plaintiff that some people take the hat as a symbol of hatred and bigotry, and that while should could not ask him to stop wearing it, he should use "better judgment" in the future.  The next day, the plaintiff attended another teacher training at a school in the district.  He again wore the MAGA hat until he entered the building.  The principal again contacted the HR director.  They agreed the principal needed to set a "clear directive" that the plaintiff not have the hat in the training.  Later that day, the teacher went to a training at his school, and left his hat in his truck.  The principal again spoke with the plaintiff.  According to the plaintiff, the principal swore during the conversation, called the plaintiff a homophobe, a bigot, and hateful; used profanity; told him that she did not want him wearing the hat; and said, "[N]ext time I see you with that hat, you need to have your union rep.  Bring your rep because I'll have mine."  The principal denied using profanity in the conversation.  The plaintiff made an HR complaint about the principal.  After investigation, the district found that the principal did not violate district policy.  The HR officer informed the plaintiff that no further action would be taken on the complaint; but she granted the plaintiff's request for a transfer to another school.  The plaintiff appealed to the school board.  During a second investigation, the board gave the principal a choice of resigning as principal, accepting demotion, or facing disciplinary proceedings.  She resigned.  The plaintiff sued the district, the principal, and the HR officer for retaliation in violation of his First Amendment free speech rights.  The district court granted summary judgment on the grounds that the principal's and HR officer's actions were protected by qualified immunity, and that the plaintiff had failed to establish that the district had ratified any unconstitutional actions.

The 9th Circuit reversed summary judgment as to the principal.  The plaintiff stated a prima facie claim for first amendment retaliation:  wearing the hat (with the political message it conveyed) was protected speech on a matter of public concern; he acted as a private citizen (rather than as part of his job duties) in wearing the hat to a teacher training; and while the principal "badmouthing" the plaintiff was not an adverse employment action, her threat that he needed to have his union rep if he wore the hat again raised a genuine issue of material fact over whether he faced an adverse employment action--a threat to his employment--for his expression.  The court affirmed summary judgment for the HR officer, because it found no evidence the officer caused or set in motion a series of acts by others that she reasonably should know would cause constitutional injury.  Nor were any of her actions reasonably likely to deter him from engaging in protected speech.  The court then applied Pickering balancing to determine whether the principal established a legitimate administrative interest in preventing the plaintiff's speech that outweighed the plaintiff's First Amendment rights.  While some of the training attendees may have been outraged or offended by the plaintiff's political expression, there was no evidence of actual or tangible disruption to school operations, beyond the inherent controversy of political speech.  The appellate court next applied the second prong of qualified immunity analysis to the principal's acts:  whether she violated clearly-established law.  The court noted that because the Pickering analysis requires a fact-sensitive, context-specific balancing of competing interests, the law will rarely be sufficiently clearly established to preclude qualified immunity.  But Supreme Court and 9th Circuit case law clearly establish that disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail  expression of that viewpoint at a public school, particularly where the only disruption was the effect the speech had on those who disagree with it because they disagree with it.  This is therefore one of the rare Pickering cases where the violation of the First Amendment was clearly established.    Finally, the court agreed with the district court that there was no evidence the district ratified the principal's conduct.

Social Workers Were Not Entitled to Qualified Immunity for Acting with Malice, Oppression, or in Reckless Disregard of Parent's Rights

In Casey N. v. County of Orange, published December 23, 2022, the Fourth District Court of Appeal, Division 3, affirmed a jury verdict against the defendant county and two social workers in a 42 U.S.C. section 1983 suit brought by a parent.  Social workers investigated allegations that the plaintiff's minor daughter was sexually abused by her father, who was divorced from the mother.  One social worker stated in her report her opinion that the mother was emotionally abusing the daughter, and was feeding information or coaching information to the child as part of a family law dispute.  The second social worker, who replaced the first, filed a report stating she was unsure whether sexual abuse had taken place, but also recommended the petition allege emotional abuse by the mother.  The deputy county counsel dismissed the sexual abuse allegations before the dependency court, and replaced them with allegations of emotional damage or endangerment based on allegations the mother had influenced the child to make false sexual abuse claims.  The dependency court found the mother had knowingly caused the minor to make false allegations against the father.  The court granted the agency's request that the minor be removed from the mother and given to the father.  The mother signed a stipulation giving sole legal and physical custody of the minor to the father with visitation by the mother.  She later asserted she had been bullied into signing the stipulation under threat of having her parental rights terminated.  The mother sued the social workers and the county for violating her right to familial association by deceiving the juvenile court into removing the minor from her custody.  The jury found the social workers liable, found the county liable under a Monell theory, and awarded punitive damages against the social workers.

The appellate court ruled that the issue of the materiality of the social workers' statements--whether, but for the dishonest or misleading statements, the challenged action would not have occurred.  In a section 1983 case based on judicial deception, the court decides materiality in a summary judgment proceeding, but the jury determines it at trial.  The court further ruled that substantial evidence supported the verdict against the social workers.  There was medical and other evidence of sexual abuse that the mother's dependency court counsel did not present, because the sexual assault accusation was dismissed and the evidence would have been irrelevant.  The mother also testified she was prevented from offering the evidence at the disposition hearing because she was coerced into signing the stipulation.  The court ruled that the social workers were not entitled to qualified immunity.  The jury's finding that the social workers had acted with malice, oppression, or in reckless disregard of the mother's rights established that their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.  Further, federal case law holds that the doctrine of qualified immunity merges with the merits in a case alleging judicial deception in the procurement of a search warrant.  The court declined to rule whether this holding applied here.  Substantial evidence also supported the Monell liability finding against the county, based on an official policy or custom of using false or misleading evidence, or in failing to disclose exculpatory evidence, in reports, documents, and testimony to the juvenile court, as well as a failure to properly train social workers.

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.