Government Liability Update

Section 364 Notice of Intent to Sue Does Not Toll Claim or Late-Claim Application Deadlines

In Last Frontier Healthcare District v. Superior Court (Harper), published March 26, 2019, the Third District Court of Appeal issued a writ reversing a trial court order granting a Government Code section 946.6 petition for late claim relief.  The plaintiff had surgery on February 17, 2017 at the Modoc Medical Center.  She alleges the surgery was negligent.  On January 31, 2018, Harper served on the medical center and the surgeon a Code of Civil Procedure section 364 notice of intent to commence a malpractice action.  The defendant healthcare district, which did business as the medical center, is a public entity.  It treated the 364 notice as a governmental claim.  ON March 16, 2018, it rejected the "claim" as untimely.  On April 6, 2018, the plaintiff submitted to the medical center an application for leave to present a late claim.  The application stated the cause of action accrued February 17, 2017.  The district denied the application as untimely.  The plaintiff then petitioned the court for relief under section 946.6.  The petition also alleged the cause of action accrued February 17, 2017.  The trial court granted the petition.  The court stated that it assumed the accrual date was the date of surgery. The court reasoned that the plaintiff's one-year deadline to apply for late-claim relief under Government Code section 911.4 was tolled by the 364 notice.

The Court of Appeal held that the trial court erred.  In Woods v. Young (1991) 53 Cal.3d 315, the California Supreme Court held that sending a notice of intent under section 364 tolled the statute of limitations for commencing an action.  But the government claim presentation deadline and the deadline for seeking leave to present a late claim are not statutes of limitation, and do not set forth the deadline for commencing an action.  The tolling set forth in Woods does not apply to the plaintiff's late-claim application.  Because filing a late-claim application with the entity within a year of accrual is a jurisdictional prerequisite to a Government Code section 946.6 petition, the trial court had no jurisdiction to grant the plaintiff relief.

The appellate court also rejected the plaintiff's argument that the trial court nevertheless had jurisdiction to grant the application, because the district did not establish that her application was presented more than a year after accrual.  The plaintiff, as the party seeking relief under the petition, had the burden of raising an issue on the date of accrual.  She conceded in her application and petition that her cause of action accrued on the date of surgery.

Officer Entitled to Qualified Immunity for Failure to Prevent Arrestee's Suicide Attempt in Cell, but Is Not Entitled to Summary Judgment on State Law Claim

In Horton v. City of Santa Maria, published February 1, 2019, a divided 9th Circuit panel affirmed in part and reversed in part a district court order denying summary judgment to a police officer and his city employer in a case brought under 42 U.S.C. section 1983 and California Government Code section 845.6.  The plaintiff was arrested after slashing the tires of a vehicle his girlfriend was riding in.  He admitted to hitting the girlfriend in the past. While in the holding cell at the police station, he told the defendant officer of various troubles in his life, and that he was nervous being in a cell, but twice denied needing medical care.  Another officer referred to the possibility of a psych consult for the plaintiff.  The plaintiff's mother talked to him on the phone.  The officer then spoke to the mother on the phone for about 15 minutes.  The mother told the officer the son had engaged in self-harm and suicidal ideation.  While the officer talked with the mother, the plaintiff undid his belt, looped it through the bars, and hanged himself.  The plaintiff was left alone for a half hour, during which he developed brain damage from the hanging.  The district court denied summary judgment to the officer and the city on the federal and state claims.

The 9th Circuit panel unanimously reversed denial of summary judgment as to the section 1983 claim against the officer.  Because insufficient case law established that the officer's actions amounted to deliberate indifference under the then-prevailing Fourteenth Amendment standard for denial of medical care to pretrial detainees, any Fourteenth Amendment violation was not clearly established.  The officer was therefore entitled to qualified immunity. The court also unanimously ruled that it lacked jurisdiction over the denial of summary judgment to the city on the Monell claim.  While denial of summary judgment based on qualified immunity is immediately appealable, denial of summary judgment to a municipal defendant may be appealed only if reversal on the qualified immunity issue as to the individual will also lead to reversal for the municipality.  That standard was not met here, because the municipality could be held liable even if the officer was entitled to qualified immunity due to lack of clearly-established law.

The majority held that the district court also properly denied summary judgment on the state law claim.  Under the facts, the majority found triable issues of fact on whether the information the defendant officer had showed that the plaintiff required immediate medical care to prevent his suicide attempt.  The dissenting judge argued that there was no evidence that the plaintiff required immediate medical care, or that immediate medical care would have prevented the suicide attempt or injury.  The dissenting judge further criticized the majority for following 9th Circuit case law interpreting Government Code section 845.6 whcih the California appellate courts subsequently criticized.

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.

Although Enforcement of California Medical Waste Statute on Disposal of Waste outside California Violates Dormant Commerce Clause, Officials Entitled to Qualified Immunity for Enforcement Decision

In Daniels Sharpsmart v. Smith, published May 2, 2018, the 9th Circuit Court of appeals affirmed a district court decision to issue a temporary restraining order against the California Department of Public Health's enforcement of the California Medical Waste Management Act, but reversed denial of the department's officials' motion to dismiss based on qualified immunity.  The plaintiff is an Illinois corporation that handles transport and treatment of medical waste.  The corporation does business in California, and is regulated under the MWMA. Under the MWMA, California generated medical waste generally must be incinerated.  The plaintiff transported waste generated in California to other states, where means of disposal other than incineration are allowed.  The Department took the position that the MWMA governed the plaintiff's disposal of medical waste in other states.  The Department issued a notice of violation and imposed a monetary penalty on the plaintiff.  The plaintiff sued the Department officials in federal district court, and obtained a TRO against enforcement of the MWMA on disposal of waste out of state.

The 9th Circuit upheld the TRO.  It agreed with the district court that the plaintiff was likely to prevail on his claim that the enforcement of the MWMA on disposal of waste outside California violated the Dormant Commerce Clause, the interpretation of the Commerce Clause to bar states from unjustifiably burdening interstate commerce.  But the officials were entitled to qualified immunity against any damages liability for enforcing the statute.  The law was not clearly established that enforcement of the MWMA on disposal of medical waste generated inside California, but disposed of outside California, was unconstitutional.

Deliberate Indifference Standard for Inadequate Medical Care to Pretrial Detainees Is Objective, Not Subjective

In Gordon v. County of Orange, published April 30, 2018, the 9th Circuit Court of Appeals reversed summary judgment granted to defendants in a 42 U.S.C. section 1983 lawsuit arising from the death of a pretrial detainee in county jail.  The decedent was arrested on heroin-related charges.  The intake nurse allegedly failed to use an assessment sheet for opiate withdrawal symptoms.  Various defendants allegedly failed to properly observe the decedent.  The district court granted the individual defendants summary judgment on the ground that a section 1983 claim for inadequate medical care required the plaintiff to prove the defendants were subjectively deliberately indifferent, and there was insufficient evidence of that.  It also granted the county summary judgment, finding no custom or practice that violated the constitution.

The 9th Circuit ruled that the district court applied the improper standard.  Previously, the 9th Circuit had used a subjective deliberate indifference standard for inadequate medical care claims both for prisoners held after trial (under the Eighth Amendment's cruel and unusual punishment standard) and before trial (under the Fourteenth Amendment's substantive due process standard).  But recent Supreme Court and 9th Circuit law suggested a different standard should apply to pretrial detainees.  The 9th Circuit therefore concluded that an objective deliberate indifference standard applies to pretrial detainees.  To prove a pretrial detainee claim for inadequate medical care, the plaintiff must prove (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.  Because the district court applied the incorrect standard, the summary judgment in favor of both the individual defendants and the county was reversed.

Prison-Injury Suit Filed by Former Inmate After Release Not Subject to Prisoner Complaint Screening Rule

In Olivas v. State of Nevada, published May 19, 2017, the 9th Circuit Court of Appeals reversed the dismissal with prejudice of a lawsuit filed by a former inmate.  The plaintiff alleged that while he was in prison, prison officials violated his Eighth Amendment rights by shooting him with shotgun pellets during a riot and then showing deliberate indifference to his need for medical care.  He also asserted causes of action under Nevada state law.  He filed the suit pro se in state court.  After he retained counsel, he amended the complaint.  The defendants removed the case to federal court.  The federal district court screened the case under 28 U.S.C. section 1915A, which provides for the district court to screen inmate complaints and dismiss those that fail to state a claim or that seek damages from an immune defendant.  The court dismissed the federal claims in the complaint without prejudice.  The plaintiff filed an amended complaint.  The court again screened the complaint, and dismissed the federal claims with prejudice, denying further leave to amend.  It declined to exercise jurisdiction over the state law claim.

As a matter of first impression, the 9th Circuit ruled that a former prisoner who was released from custody before he filed a complaint about events that occurred in prison is not a "prisoner" for purposes of 28 U.S.C. section 1915A.  The district court therefore may not screen or dismiss the complaint under that statute.  In dictum, the 9th Circuit also noted that the district court applied an incorrect analysis in screening the lawsuit, and erred by denying leave to further amend the complaint.

Because Police Had Probable Cause to Detain Teacher under Welfare and Institutions Code section 5150, They Cannot Be Held Liable for the Detention

In Julian v. Mission Community Hospital, published May 2, 2017, the Second District Court of Appeal, Division 7 affirmed summary judgment in favor of Los Angeles Unified School District, the Los Angeles Unified School Police, five police officers, and a private hospital in a lawsuit brought by a school teacher.  The teacher complained to the principal that another teacher "physically assaulted" her by grabbing her hand as she tried to clsoe a door.  Another teacher texted the principal that the teacher "wants to slit her wrists" concerning some recent changes at the school. The teacher had scratches on her arms that the teacher had told the principal were caused by her cats.  Officers of the school police approached the teacher to interview her about the alleged assault.  The teacher responded by running down a hallway, dropping to the floor, and crying and screaming.  The officers called paramedics, who strapped the teacher to a gurney as she resisted. She was taken to the hospital, where an officer gave the hospital a Welfare and Institutions Code 5150 detention application.  The hospital determined that the teacher should be detained.  She was examined and released the next day.  She sued the defendants for violations of the Lanterman-Petris-Short Act (Welfare and Institutions Code sections 5000 et seq), violation of her civil rights under 42 U.S.C. section 1983 and the California Constitution, and false imprisonment.  The trial court granted the school defendants summary judgment, and sustained the hospital's demurrer.

The appellate court rejected the plaintiff's theory that the Lanterman-Petris-Short Act created any cause of action for damages that would apply.  Portions of the Act create limited causes of action for damages, none of which applied here.  The other portions did not satisfy any of the tests for whether a statute creates a cause of action for damages.  That portions of the Act do specifically provide causes of action indicates that the Legislature did not intend the other portions to create additional causes of action.

As to plaintiff's 42 U.S.C. section 1983 claim, neither the school district nor its police department could be sued under section 1983 because the school district is an arm of the state, and the district's police department was a division of the district.  Therefore, neither was a "person" under section 1983.  Further, the plaintiff failed to show that either had any unconstitutional custom, policy or practice that led to her detention.  The plaintiff alleged that the police officer defendants violated her rights under the First Amendment, Fourth Amendment, and Ninth Amendment.  No facts showed any violation of the plaintiff's First Amendment rights.  The plaintiff failed to persuade the court that a "right to be properly cared for by physicians" existed under the Ninth Amendment; and in any event such a right would not apply to the police defendants.  The Fourth Amendment claim failed because the undisputed facts established that the officers had probable cause because the officers, as lay persons, could articulate behavioral symptoms of mental disorder that the plaintiff displayed:  thought processes, as evidenced by words or actions or emotional affect, that are bizarre or inappropriate.  The issues of fact the plaintiff sought to raise--such as her contention that her cats made the scratches on her arms--did not undermine the facts that established probable cause.  Her allegations of civil conspiracy between the school police failed because a conspiracy requires an underlying constitutional violation, and she failed to show any.

The appellate court rejected the plaintiff's claims that the California Constitution's provisions regarding free speech, right to petition the government, due process, or equal protection created a cause of action for damages when the action is not tied to an established common law or statutory action.  The plaintiff did not allege any such action.  Whether there is a cause of action for violation of the right to privacy under the California constitution is unsettled; but the plaintiff failed to state the elements of a cause of action for invasion of privacy.  Similarly, the law is unsettled on whether the California Constitution's right against unreasonable searches and seizures creates a cause of action for damages; but if it did, the defendants would be immune from liability.  Welfare and Institutions Code section 5278 immunizes persons authorized to detain individuals under the Act if they acted with probable cause and did not commit negligent acts, intentional torts, or criminal wrongs during the course of the detention.  The police defendants had probable cause to detain the plaintiff, and there was no showing of other wrongs committed.  The plaintiff failed to show facts that would establish a violation of the Bane Act.

Finally, the appellate court ruled that the hospital defendants were not state actors for purposes of section 1983, and did not violate the California Constitution.

Peace Officers Entitled to Qualified Immunity for Use of Force on Person Preventing Emergency Care and for Search of Vehicle That Is Possible Suicide Site

In Ames v. King County, Washington, published January 13, 2017, the 9th Circuit Court of Appeals reversed a district court decision denying qualified immunity to sheriff's deputies responding to the scene of an attempted suicide.  The plaintiff found her adult son at their house unresponsive and with a suicide note.  She called 911.  A sheriff's deputy responded along with a firefighter/EMT crew.  The plaintiff refused to allow the deputy to enter.  The deputy ordered the emergency crew to leave the house.  As the deputy and EMTs were in their vehicles outside the residence, the mother took the son out of the house and put him in her truck to transport to the hospital.  The deputy blocked the truck with her patrol car, and yelled for the mother to allow the EMTs to treat the son.  When the mother refused, the deputy pulled her out of the car using pain compliance techniques and handcuffed her.  When a backup deputy arrived, he understood the truck to be a possible attempted suicide site, and searched it. The son survived. The district court denied the deputies qualified immunity against the plaintiff's excessive force and illegal search claims under 42 U.S.C. section 1983.

The 9th Circuit held that a reasonable officer could have found that the deputy's use of force was reasonable, considering that the officer was acting in an emergency response rather than law enforcement capacity and the plaintiff's actions in preventing lawful attempts to render aid to her son threatened her son's life.  A reasonable officer could also have found the search of the truck reasonable, since it was in an emergency response rather than law enforcement capacity.  The deputies were therefore entitled to qualified immunity.

Social Workers Entitled to Qualified Immunity for Removing Newborn from Drug-Using Mother without Warrant, but County May Be Liable for Policy of Not Obtaining Warrants

In Kirkpatrick v. County of Washoe, published December 9, 2016, the 9th Circuit Court of Appeals, sitting en banc, affirmed in part and reversed in part summary judgment in favor of defendants sued by an infant child and her father under 42 U.S.C. section 1983. The infant was born prematurely by cesarean section.  The mother admitted she used methamphetamine throughout her pregnancy.  The infant tested positive for meth.  The mother had two other children who were in the custody of social services.  A court had approved a plan to terminate the mother's parental rights for the older children.  Social services put a hold on the newborn to prevent her from being discharged.  The mother was still permitted to interact with the newborn.  The mother failed to feed the infant on a schedule or to change her diapers.  The plaintiff father was present at the time of the birth.  He had been told by the mother that he might be the father.  He left town soon after the birth.  Two days after the infant's birth, the hospital discharged her into social services's care.  Social services did not attempt to obtain a warrant before assuming custody.  Later, the plaintiff was adjudged the father, and eventually obtained custody of the infant.  He and the infant sued the county and the social workers involved for removing the child from the hospital without a warrant.  The district court granted summary judgment, determining that only the father had raised claims and that he had failed to show that his constitutional rights were violated.

The majority decision of the en banc panel affirmed summary judgment on behalf of the social workers, but reversed it as to the county.  The panel determined that the suit asserted the rights of both the father and the infant.  The court ruled that the father failed to show that any of his 4th or 14th Amendment constitutional rights were violated, because he had no parental relationship with the newborn when she was taken.  His biological relationship alone was insufficient.  The panel determined that there was a material issue of fact on whether the infant's 4th Amendment rights had been violated.  Removal of a child without a warrant is constitutionally permitted only when the child would be in imminent danger during the time that obtaining a warrant could take.  Since the infant and mother were in the hospital, the mother was recovering, and the hospital had a hold on discharging the child, a jury could determine that a warrant was necessary.  But the workers were entitled to qualified immunity, because no published case had established that no imminent danger was present under the circumstances the workers faced.  On the other hand, there was a triable issue of fact on whether the county could be held liable for failure to train.  The county did not train its workers that they needed a warrant to remove children from parents, and as a practice did not use warrants.  Although a pattern of constitutional violations is usually necessary to show an unconstitutional failure to train, this was one of the rare situations were a single instance was sufficient.

There were multiple concurring and dissenting opinions in the decision.

Litigation Privilege Immunizes Public Entity for Its Doctor's Release of School Bus Driver's Medical Information to DMV for Safety Purposes

In McNair v. City and County of San Francisco, published November 22, 2016, the First District Court of Appeal, Division 4 affirmed summary adjudication and nonsuit in favor of the defendant city/county and a doctor employed by the city/county's Department of Public Health.  When the doctor learned her patient, a commercial driver, would be driving school busses, the doctor wrote the DMV and disclosed--against the patient's wishes-- that the driver had been diagnosed with Cognitive Disorder NOS, functional illiteracy, a personality disorder, impulsiveness, and poor judgment.  She wrote out of concern for the patient's safety and the safety of the public.  The DMV revoked the driver's commercial license.  The patient obtained reinstatement of his license through administrative hearings, but lost his job.  He sued the city/county and doctor for intentional tort and breach of contract for releasing his information, allegedly in violation of medical privacy laws.  The trial court granted summary adjudication on the intentional tort cause of action, and nonsuit on the breach of contract cause of action.

The appellate court ruled that because the doctor's disclosure of the information to the DMV was protected by the litigation privilege of Civil Code section 47, subdivision (b), the trial court's rulings were correct.  The litigation privilege applies to both intentional torts and breach of contract causes of action.  The elements of the immunity were met:  It was a communication in a quasi-judicial proceeding, made by a person authorized by law to communicate with the DMV concerning the patient's ability to drive, it was written to achieve the objects of the litigation (considering the patient's ability to drive), and it had a logical relation to the action because it prompted hearings regarding the patient's driving ability.  The privilege did not conflict with statute.  Instead, statutory law provided for reporting the information for the purpose of public safety, and the law concerning medical information privacy allows disclosures as required by law.