Government Liability Update

Prison Officials Are Not Entitled to Qualified Immunity to Guard's Family's Claim for Introducing COVID into a Prison

In Polanco v. Diaz, published August 7, 2023, a split panel of the 9th Circuit affirmed a district court decision denying a motion to dismiss a 42 U.S.C. section 1983 against state prison officials .  A few months into the COVID-19 Pandemic, high-evel officers in the state prison system transferred 122 inmates from one prison, where there was a widespread COVID-19 outbreak, to another prison, where there were no known cases of the virus.  Allegedly, the officials had been briefed on the risks COVID posed in a prison setting; the necessity of taking precautions such as social distancing, masking, and testing; and that containing an outbreak at the target  prison would be particularly difficult due to its design.  Most of the transferred inmates had not been tested for three weeks.  The inmates were allegedly packed onto buses, where some showed symptoms of COVID en route.  The officials did not quarantine the incoming inmates.  They placed nearly all in a housing unit with grated doors instead of solid doors, and had them use the same showers and mess hall as other inmates.  The county health officer recommended that the transferred inmates be sequestered and that exposed inmates and staff be required to wear masks.  The state officials allegedly ordered that the county health official be told he lacked the authority to mandate measures in a state-run prison.  A COVID outbreak at the prison ensued.  During the outbreak, officials were notified of a memo from health experts advising adopting masking and testing.  The officials allegedly declined to adopt the memo's recommendations.  Eventually, 2,100 inmates and 270 staff tested positive, and 26 inmates and one guard died.  The guard's family sued the officials for violating the decedent's constitutional rights.

The panel majority held that the complaint stated a claim for violation of the decedent's due process right to be free of a state-created danger.  Although state employers have no constitutional duty to provide employees with a safe working environment, they can be liable for affirmatively, and with deliberate indifference, creating or exposing their employees to a dangerous working environment.  The allegations, if proven, established affirmative conduct (transferring the inmates), a particularized danger (danger to the inmates and staff at the prison), and deliberate indifference to a sufficiently severe danger.  Further, they did not attempt to mitigate the risk.  The majority further ruled the constitutional right was clearly established for qualified immunity purposes.  Although COVID was a novel threat, two previous 9th Circuit cases held that a prison's disregard for employee safety (from inmate attack) and that deliberate indifference to health risks to employees (from exposure to toxic mold) together established the violation of the 14th Amendment through the state-created danger doctrine.  The majority further rejected the argument that the Public Readiness and Emergency Preparedness (“PREP”) Act, 42 U.S.C. § 247d-6d, would have lead reasonable prison officials to believe that they could handle the COVID-19 outbreak however they saw fit, without a risk of liability.  The PREP act does not limit constitutional rights; it limits liability for violating them.  It therefore does not affect qualified immunity.

A dissenting judge opined the officials should have qualified immunity for dealing with a novel health threat.

Government Code Section 815 Does Not Bar Quantum Meruit Actions for Statutory Reimbursement

In County of Santa Clara v. Superior Court (Doctors Medical Center of Modesto), published July 10, 2023, the California Supreme Court reversed a lower appellate court decision directing a trial court to sustain a demurrer.  Under the Knox-Keene Health Care Service Plan Act of 1975, Health & Safety Code section 1304 et seq., if a medical provider provides emergency medical services to a patient enrolled in a health care service plan, the plan must reimburse the provider. (Health & Safety Code, § 1371.4, subd. (b).)  If the plan does not have a contract with the provider addressing the reimbursement rate, the plan must pay the provide the reasonable and customary value of the care provided, under Cal. Code Regs., tit. 28, § 1300.71, subd. (a)(3)(B). Under case law, if the plan fails to pay the reasonable and customary value of the services, the provider may sue the plan for reimbursement under a quantum meruit theory.  Real party hospitals provided emergency services to persons enrolled in a health care services plan operated by the petitioner county.  The  hospitals submitted reimbursement claims to the county.  The county paid only a portion of the amount claimed.  The hospitals sued the county for the remaining amounts, based on the Knox-Keene reimbursement provisions.  The trial court found that the hospitals could state a quantum meruit claim against the county.  On a writ petition by the county, the appellate court ruled that the cause of action was barred by Government Code section 815, which immunizes public entities from nonstatutory causes of action seeking damages.

The Supreme Court reversed.  The liability and immunity provisions of the Government Claims Act, such as section 815, are directed toward tort claims.  Government Code section 814 provides that nothing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or employee.  The Government Claims Act's liability and immunity provisions do not bar quantum meruit actions seeking statutory reimbursement, such as the ones in this case.  The legislative history of the Act, and appellate decisions interpreting the Act, establish that the Act's immunity provisions are intended to limit public entities' exposure to liability for money damages in tort cases, not every conceivable claim that might be pressed against a public entity.  That the hospitals must present claims to seek damages does not subject their causes of action to the Act's liability or immunity provisions.  The claims presentation requirements of the Government Claims Act are broader in scope than the Act's public entity immunity or liability provisions.  The court also distinguished cases holding that private parties who fail to enter into legal contracts with public entities may not use quantum meruit or promissory estoppel theories to recover damages from the entities.  Those cases do not apply to quantum meruit claims seeking damages based on statute, not contract.

 

 

Despite Genuine Issues of Fact on Existence of Probable Cause, Officers Entitled to Qualified Immunity against False Arrest Claims

In Johnson v. Barr. published July 6, 2023, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted by the district court.  The defendant police officer approached a woman with her children parked next to a park at night.  After questioning the woman, finding out she had been drinking, and noting what they believed to be signs of intoxication, they arrested the woman and booked her on one count of public intoxication under Penal Code section 647(f) and five counts of felony child endangerment under Penal Code section 273a(a).  The children were placed with child protective services.  After the woman and her husband (who had also been arrested) paid bail, they were released and picked up their children.  The district attorney declined to prosecute the woman and her husband, and dropped all charges.  The woman sued under 42 U.S.C. section 1983, alleging unlawful and unreasonable arrest under the Fourth Amendment, interference with and retaliation against free exercise of expression under the First Amendment, unlawful and unreasonable search and seizure under the Fourth Amendment, and deprivation of due process under the Fourteenth Amendment.  She also asserted state law claims of false arrest and imprisonment, intentional and negligent infliction of emotional distress, Bane Act violations, trespass to chattals, and negligence.  The district court granted summary judgment to the defendants on all claims, finding both probable cause and qualified immunity.

The 9th Circuit reversed the summary judgment on the state law claims.  Whether the officers had probable cause to arrest the plaintiff presented a jury question.  Probable cause is present if the facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime.  Some bases on which the defendants attempted to claim probable cause were not supported by the record.  Other facts, viewed in the light most favorable to the plaintiff, suggest probable cause to arrest.  Since a reasonable jury could return a verdict for the plaintiff, summary judgment based on probable cause was not appropriate.  But the section 1983 claims are still subject to qualified immunity.  Even where there is not probable cause to arrest, officers are entitled to qualified immunity so long as reasonable officers could disagree as to the legality of the arrest.  Although officers might seem to lack probable cause under the prudent person standard,  a reasonable officer on the ground might perceive the situation differently. An officer would not be on notice that his or her action was unreasonable unless all reasonable officers would agree that there was no probable cause in this instance.  The plaintiff did not sufficiently show how her arrest violated a clearly established right to be free from an unlawful arrest when the undisputed evidence presented before the district court does not show that every reasonable officer would be on notice that these actions were unconstitutional.  The plaintiff did not adequately identify cases that indicated the defendants' actions in arresting her were clearly prohibited, especially in light of the undisputed facts established by the body cam footage of the incident.  A a plain reading of the public intoxication and child endangerment statutes does not demonstrate that a reasonable officer should have known that the plaintiff's actions were clearly not prohibited. The majority affirmed summary judgment on the federal claims, and vacated the district court's grant of summary judgment on the state law false arrest and negligence claims, which were premised on a finding of probable cause as a matter of law.  The court affirmed summary judgment on the other state law claims, on non-probable-cause grounds.   A concurring/dissenting judge opined that the appellate court should have remanded all of the state law claims to the district court to determine whether to exercise supplemental jurisdiction over them.

Officers Entitled to Qualified Immunity for Pulling Suspects from Car without Identifying Themselves

In Hopson v. Grissom, published June 16, 2023, a divided panel of the 9th Circuit Court of Appeals reversed an order denying summary judgment.  The defendant police detective in an unmarked car parked at a gas station.  He witnessed another driver repeatedly backing into parking spaces, looking around, and backing out.  It appeared to the detective that the driver was casing the station for an armed robbery.  The detective witnessed the plaintiff drive into the parking lot, park alongside the driver, get into the driver's car and converse with him.  Believing the two were about to engage in criminal conduct, the detective called for backup.  A few minutes later, a defendant officer and other officers arrived.  The defendant officer parked behind the suspect's vehicle.  According to the plaintiff's version of the facts (which was disputed), the detective approached the driver's side door with his gun pointed out, opened the door, and forcefully removed the plaintiff from the vehicle, yanking his arm with enough force to "put him in a state of shock" and make him think he was being robbed.  The detective then allegedly forcefully handcuffed the plaintiff and verbally dared him to make a move.  During these events, the defendant officer kept his gun pointed at the plaintiff.  None of the officers identified themselves as police officers.  The plaintiff was not injured, but alleged emotional distress.  The officers questioned the plaintiff about the smell of marijuana emanating from the car, checked his driver's license, and discovered the plaintiff's prior felony convictions and that he was on probation.  The officers searched the car and found marijuana and a handgun with an extended magazine, which the plaintiff was not allowed to possess.  The plaintiff was arrested and charged, but the evidence was thrown out when the trial court concluded there was not reasonable suspicion to support the stop.  The plaintiff sued the defendant detective and officer under 42 U.S.C. section 1983 for violating his 4th and 14th Amendment rights when they stopped him without reasonable suspicion and used excessive force when arresting him.  The district court granted the defendants summary judgment on the unlawful stop claim, but denied it on use of force, finding genuine issues of fact.

The panel majority ruled that the officers were entitled to qualified immunity.  Viewing the evidence in the light most favorable to the plaintiff, the majority ruled that no clearly-established law prevented the officers from reasonably suspecting that the plaintiff was about to engage in armed robbery, or that he might be armed (as he in fact was).  In regard to use of force, the plaintiff failed to provide specific case law that demonstrates the unlawfulness of the detectives' conduct under the particular circumstances they confronted.  No authority placed beyond debate that the defendants violated the constitution by pointing their guns at the plaintiff.  As for the amount of force used, the right to make an arrest or investigatory stop necessarily includes the right to use some degree of physical coercion.  Under the plaintiff's version, the officers forcefully removed him from the vehicle and forcefully handcuffed him, but did not physically injure him.  This was weighed against the government's interest in investigating and preventing a potential armed robbery.  In most cases in which the 9th Circuit has found officers used excessive force, the force used was gratuitous or violent.  Controlling authority did not establish beyond debate that the force used during the plaintiff's arrest was objectively unreasonable.  Similarly, the plaintiff failed to show that precedent clearly established that the officers' failure to identify themselves rendered the use of force excessive.

A dissenting judge opined that there were genuine triable issues as to whether the law clearly established the officers' stop was unconstitutional and their use of force excessive.

Government Code Section 821.6 Immunizes only Liability for Prosecutions, Not for Investigations

In Leon v. County of Riverside, published June 22, 2023, the California Supreme Court reversed summary judgment entered for the defendant county.  The plaintiff sued county sheriff's deputies for negligent infliction of emotional distress, based on the deputies  leaving her husband's remains unclothed for eight hours, in public view, while officers searched for the person who shot the husband.  The trial court granted summary judgment based on Government Code section 821.6', which immunizes public employees for injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if the employee acts maliciously and without probable cause.  The trial court followed case authority applying the immunity to police investigations.  A divided appellate court affirmed.  The Supreme Court granted review.

The Supreme Court held that section 821.6 immunity does not apply to investigations. Section 821.6 provides immunity against liability for claims of injury based on tortious and wrongful prosecution.  The immunity is narrow in the sense that it applies only if the conduct that allegedly caused the plaintiff’s injuries was the institution or prosecution of an official proceeding. But the immunity is broad in the sense that it applies to every such tort claim, whether formally labeled as a claim for malicious prosecution or not.  Where it applies, it is absolute.  The body of case law interpreting the immunity as applying to investigations, because investigations are part of prosecutions of judicial proceedings, are contrary to the plain language of the statute, as well as its historical status as a codification of the common law immunity against malicious prosecution (although the language of the statute extends it beyond traditional malicious prosecution, to negligent prosecutions) and its legislative history.  Other provisions in the Government Claims Act address the concerns that exposure to liability will chill investigations, including the public entity defense of claims and payments of judgments against public employees; Government Code section 820.2's immunity for discretionary acts; Government Code section 820.4, immunizing acts taken with due care in the execution or enforcement of any law (though not for false arrest or false imprisonment); and Government Code section 821, immunizing failure to enforce an enactment.  The court disapproved lower appellate court decisions extending section 821.6 to claims arising out of investigations.

Officers Entitled to Qualified Immunity for Mistakenly Arresting Man under Belief He Was Harboring Suspect

In Hill v. City of Fountain Valley, published June 1, 2023, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for the defendant officers in a 42 U.S.C. section 1983 case.  A man decided to take his wife for a surprise anniversary dinner.  A 911 caller reported seeing the man driving erratically with a blindfolded female passenger, and provided the license plate number.  The defendant officers drove to the man's home to check the well-being of the passenger.  At the house, the officers asked the man's parents about him.  The parents confirmed that the man drove a vehicle matching the 911 caller's description, but said he was not home.  The father of the man demanded the officers tell him what was going on.  The officers related the 911 call to him.  The father said the son was out with his wife.  The officers requested the man's phone number.  While waiting outside for the phone number, the officers noticed a young man who matched the man's description through a window.  (The young man was actually the man's brother.)  The officers asked the father, "Who's the other person here?"  The father did not hear the question, and closed the curtains on the window.  The officers told all occupants to exit the house.  The father stepped outside while the mother and brother stayed inside.  The father closed the door and told the officers they could not come in.  The officers grabbed the father, led him to the lawn, and brought to the ground.  The father alleges that his eyeglasses cut him on the forehead, and that he sustained neck and back injuries when an officer knelt on him.  The family sued the officers, under federal and state law, for use of excessive force and 1st Amendment retaliation on behalf of the father, and unreasonable seizure on behalf of all family members, including two grandchildren who were present.  The district court remanded a state law false arrest claim to state court, and granted the officers summary judgment on all other claims.

The panel majority affirmed summary judgment.  The officers did not seize the mother or brother.  Seizure requires either physical force or submission to assertion of authority.  The mother and brother did not exit the house on the officers' commands, and so did not submit to the officers' show of authority.  They did not leave the house until the officers restrained the father and lead him outside.  Those family members therefore cannot pursue 4th Amendment claims.  Assuming the officers seized the father, their alleged warrantless in-home arrest is protected by qualified immunity.  Officers may make a warrantless in-home arrest if they faced exigent circumstances and had probable cause to arrest.  These officers likely lacked probable cause to arrest the father for obstruction.  Under California law, passively blocking a door or refusing to open a door after proper police demand are examples of permissible refusals to cooperate with police that do not amount to obstruction of justice.  A jury could find there was an arrest without probable cause.  But qualified immunity applies because not all reasonable police officers would believe that they lacked probable cause to arrest, especially given the urgency and unique facts--a perceived ongoing kidnapping, probable cause to arrest the brother because he matched the suspect's description, and the exigent circumstance of investigating a potentially kidnapped woman who might be hidden in the home.  The officers may have believed ordering the family outside would ensure the safety of a potential kidnap victim.  Closing the curtains as an officer asked a question about the unidentified male behind the window could have suggested obstruction of the investigation, or that the occupants were preparing to do battle.  Even though the officers were ultimately mistaken, courts are wary of second-guessing split-second judgments by law enforcement officers.  The plaintiffs did not offer any factually analogous case clearly establishing the officers' actions were unlawful under these circumstances.  On the father's excessive force claim, the relatively minor injuries balanced against a tense, escalating situation during an investigation into a potential kidnapping, the balance of interests favors the government.  The officers therefore did not violate the father's 4th Amendment right against excessive force.  The father's 1st Amendment retaliation claim failed because he could not show retaliatory animus for his statements to the officers was a substantial factor behind his arrest.  There was no evidence the father's statements perturbed the officers; and even if they did, no evidence suggests that they would not have arrested him absent those statements.  The district court properly dismissed the plaintiffs' state-law claims for assault, battery and Civil Code section 52.1, since all of them have similar requirements as an excessive force claim.  The district court also properly dismissed the plaintiffs' claims for negligent and intentional emotional distress, since they failed to show the requisite severe emotional distress.

One judge concurred with the decision to affirm dismissal of the excessive force and 1st Amendment retaliation claims, but opined that clearly established precedent prohibited the officers from making an in-home warrantless arrest without probable cause or exigent circumstances.

Public Entity Immunity to Punitive Damages Applies Broadly, and Bars Enhanced Damages under Code of Civil Procedure Section 340.1

In Los Angeles Unified School District v. Superior Court (Jane Doe), published June 1, 2023, the California Supreme Court affirmed a lower appellate court case reversing denial of a motion to strike a damages claim.  An alleged victim of sexual abuse by an employee of the school at which she was a student sued the defendant school district alleging negligence and failure to report suspected child abuse.  She sought an award of up to treble damages from the district under Code of Civil Procedure section 340.1(b)(1), as amended in 2019.  The district moved to strike from the complaint allegations of a cover-up and the request for treble damages, under Government Code section 818, which bars punitive and exemplary damages from being awarded against public entities.  The trial court denied the motion, and concluded that section 340.1(b)(1)'s treble damages provision was intended to be compensatory, not punitive.  The court of appeal granted the district's writ petition reversing the trial court's decision.  The appellate court determined that the treble damages were primarily punitive and thus barred by section 818.  The California Supreme Court granted review of the ruling.  While review was pending, other court of appeal agreed that enhanced damages under section 340.1(b)(1) are not recoverable against public entities.

The Supreme Court unanimously agreed with the appellate court's conclusion.  Government Code section 818 provides, “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”  While the statute clearly shields public entities from punitive damages, also referred to as exemplary damages, its language establishes that its prohibition can extend to more than just what are conventionally referred to as punitive damages.  It applies to other damages imposed primarily for the sake of example and by way of punishing the defendant.  It therefore also applies to other kinds of damages when they function, in essence, as awards of punitive or exemplary damages.  This comports with the purpose of the statute, which codifies the common law rule exempting public entities from punitive damages because such damages impoverish the public treasury without serving any admonitory function.  Based on past case law, considerations relevant to determining whether a particular award is barred under section 818 may include whether the damages involved go beyond those necessary to fully compensate the plaintiff; whether a damages remedy functions to offset some otherwise applicable restriction on compensatory
damages; whether there is an element of discretion by the fact finder in the award of damages; and whether in the normal course actual damages are likely to be difficult to establish or quantify.  The ultimate question remains whether the damages function in essence as a form of punitive or exemplary damages.  The court noted previous decisions it had made reading section 818 narrowly, as only applying to damages that are "simply and solely" punitive:  People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30; San Francisco Civil Service Assn. v. Superior Court (1976) 16 Cal.3d 46; and Kizer v. County of San Mateo (1991) 53 Cal.3d 139.  The court overruled those decisions insofar as they articulated the "simply and solely" or "simply or solely" punitive standard.  The court then concluded that the enhanced damages that section 340.1(b)(1) authorizes amount to punitive damages for purposes of section 818.  Section 340.1(b)(1) provides that, in an action seeking damages suffered due to childhood sexual assault, “a person who is
sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.”  The court interpreted "unless otherwise prohibited by another law" as referring to Government Code section 818.  Section 340.1(b)(1) authorizes treble damages only upon proof of morally offensive behavior on behalf of the defendant.  The decision to increase the award lies entirely with the fact finder.  If the fact finder decides to increase the damages award, the amount by which it does so, although capped at treble damages, is not fixed.  The awards require the existence of actual injury, but may go substantially beyond the amounts necessary to fully compensate plaintiffs for the injuries they have suffered.  The court did not find any nonpunitive characteristic or function that sufficiently distinguishes the enhanced damages from punitive damages.  The court further noted that the language of section 340.1(b)(1).

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.