Government Liability Update

Local Government Health Order Complies with Substantive Due Process if It Has a Rational Basis

In County of Los Angeles Department of Public Health v. Superior Court (California Restaurant Assoc.), published March 1, 2021, the Second District Court of Appeal, Division 4 issued a peremptory writ of mandate directing a trial court to vacate an order.  The petitioner county issued an order barring outdoor dining during a surge in the COVID-19 Pandemic.  An association of restaurants and an individual restaurant sued the county, seeking writ relief, declaratory and injunctive relief and relief for violation of due process, equal protection, and infringement of the right to liberty under the California Constitution. In the trial court, both sides submitted expert evidence for and against the restriction's relationship to preventing transmission of the virus. The trial court consolidated the actions, and issued an order enjoining the county from enforcing or enacting any county ban on outdoor dining, unless and until its public health officers conduct a risk-benefit analysis and articulate it for the public.  The county petitioned the court of appeal for writ relief.  The appellate court stayed the trial court's preliminary injunction order and issued an order to show cause.  While the writ was pending, the governor lifted a Regional Stay at Home Order that banned outdoor dining, and the county issued an order permitting outdoor dining with significant restrictions.

The appellate court determined the writ proceeding was not moot, because the county may reimpose the prohibition on outdoor dining if the region faces another surge.  The appellate court further determined that the trial court erred by failing to apply the proper deferential standard for evaluating state and local agencies' responses to public health emergencies.  The 1905 Jacobsen v. Massachusetts U.S. Supreme Court decision held that government action that purports to protect the public health will be upheld, unless it has no real or substantial relation to the object of public health, or beyond all question is a plain, palpable invasion of rights secured by the fundamental law.  The court analyzed recent decisions from the U.S. Supreme Court analyzing Pandemic restrictions on church services, and determined that the Jacobsen holding is still the rule as to secular businesses.  Therefore, the rational-relationship test for substantial due process claims applies; as does the rule of deference to administrative action, limiting that review to determining whether the agency's action has been arbitrary, capricious, or entirely lacking in evidentiary support.  The court cannot reweigh the evidence, or substitute its own judgment for the agency's.  Both the real parties' substantive due process claims and their contention that the county exceeded its emergency powers under Health & Safety Code section 101040 are analyzed under this rational relation test.  The trial court found the county's evidence provided a rational basis for the challenged order, but nevertheless adopted the opinion of the real parties' expert that a health order required a risk-benefit analysis.  Mandating such a nebulous requirement, the appellate court ruled, is inconsistent with the determination of whether the agency's actions were arbitrary, capricious, or entirely lacking in evidence.  Requiring public agencies to undertake such studies would take time and resources that may not be available when swift government action might be taking in response to surging infection, hospitalization, and death.  Because the real parties failed to meet their burden of showing the county's order was arbitrary, capricious, or without rational basis, they cannot ultimately succeed on the merits.  The trial court therefore erred in granting them injunctive relief.

The appellate court also rejected the individual restaurant's argument that the order violated freedom of assembly.  Even assuming the restaurant has a freedom of assembly, the county order does not regulate assembly based on expressive conduct, and is based on a legitimate and substantial government interest.  Further, it leaves open alternative channels for assembling, such as video conferencing and socially-distanced in-person gatherings.

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

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

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

Interagency Firefighting Immunity Does Not Apply to Non-Fire Lifesaving Activities

In Wilson v. County of San Joaquin, published July 30, 2019, the Third District Court of Appeal reversed summary judgment in favor of the defendant county.  The plaintiffs' infant child, in critical condition, was transported from plaintiffs' house by private ambulance.  Two City of Stockton firefighters rode in the ambulance and performed emergency medical procedures.  The infant eventually passed away. The city firefighters provided their services under an agreement between the city and county under which the city's fire department would provide emergency medical services as part of the county's emergency medical services system.  The plaintiffs sued the county for the firefighters' lifesaving efforts.  They alleged that the firefighters committed medical malpractice and professional negligence.  The trial court granted the county summary adjudication under Government Code section 850.6.  Section 850.6 provides that when a public entity provides "fire protection or firefighting service" outside of the public entity's regular area, the public entity receiving the fire protection or firefighting service is not liable for any act or omission of the public entity providing the service.

The appellate court concluded that section 850.6's immunity did not apply.  The Law Revision Commission comment on section 850.6 stated that the statute makes clear which public entity is liable "when one entity calls for the assistance of another in fighting a fire."  The comment, along with the statute's plain language, indicates that it applies only to services related to fighting a fire.  Cases interpret a related immunity, Government Code section 850.4 (providing immunity for injury caused in fighting fires) not to apply absolute immunity to lifesaving actions unrelated to fighting fires; instead, Health & Safety Code section 1799.107 provides only a qualified immunity to such activities, immunizing public entities and emergency rescue personnel from liability for providing emergency medical services unless performed in bad faith or in a grossly negligent matter.  The court concluded the placement of both section 850.4 and 850.6 in the same chapter suggests a legislative intent that they be interpreted similarly.

Decision to Release 5150 Detainee Is Not Protected by Anti-SLAPP Law

In Swanson v. County of Riverside, published June 17, 2019, the Fourth District Court of Appeal, Division 1 affirmed a trial court's denial of a special motion to strike under the anti-SLAPP statute.  The plaintiffs sued the defendant county because the county released a Welfare & Institutions Code section 5150 detainee after evaluation under Welfare & Institutions Code section 5152.

The appellate court concluded that an evaluation under section 5152 is not speech protected by the anti-SLAPP statute.  It is not analogous to a peer review, which is protected.  The suit is for the county's act in releasing the detainee, not for a statement.  The appellate court declined to analyze the plaintiffs' chances for success.

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.