Government Liability Update

Subjective Deliberate Indifference Standard Applies to Fourteenth Amendment Claim against School Employee Who Fails to Protect Student from Injury

In Herrera v. Los Angeles Unified School District, published December 1, 2021, the 9th Circuit Court of Appeals affirmed summary judgment granted to the defendant district, a school aide, and other defendants in a 42 U.S.C. section 1983 suit.  During a tenth-grade party at a park, a student told the defendant aide that he was going to the park's swimming pool.  Three lifeguards monitored the pool.  The aide watched the student from a designated observation area.  The aide allegedly knew that the student had asthma and could not swim.  The aide saw the student exit the shallow end of the pool and enter the locker room area.  The aide left the observation area to wait for the student to exit the locker room.  Instead of changing, the student returned to the pool.  Five minutes later, the aide searched for the student and found lifeguards attempting to resuscitate the student, who had drowned.  The student's parents brought suit.

The court of appeals analyzed whether the aide had violated the student's Fourteenth Amendment rights by affirmatively placing the student in danger by acting with deliberate indifference to a known or obvious danger.  Deliberate indifference generally requires that the defendant subjectively recognize the unreasonable risk and actually intend to expose the plaintiff to that risk without regard to the consequences to the plaintiff--to know that something is going to happen but ignore the risk and expose the plaintiff to it.  The 9th Circuit departed from that standard when holding a pretrial detainee can state a due process violation for a government official's failure to act under an objective deliberate indifference standard.  That objective standard has also been applied in excessive force and detention cases.  But the panel here held that, based on precedent, the subjective deliberate indifference standard applied to this failiure-to-protect case, which did not involve a pretrial detainee or excessive force.  Under that standard, considering that the aide protected the student's privacy and independence by not following him into the locker room, and that the pool was guarded by three lifeguards, a reasonable jury could not conclude that the aide acted with deliberate indifference.

School District Administrators Have Duty to Act Reasonably to Protect Students from Molestation Regardless of Actual Knowledge of Molestation, but Cannot Be Held Liable under Mandatory Reporter Statute absent Actual Knowledge

In Doe v. Lawndale Elementary School District, published November 30, 2021, the Second District Court of Appeal, Division 7 reversed in part and affirmed in part summary judgment granted to the defendant district.  A music instructor groomed and then sexually assaulted the plaintiff, then 13, by engaging in a sexual relationship with her.  The plaintiff did not provide any evidence that district administrators had actual knowledge of the instructor's activities toward the plaintiff, or that he had previously engaged in sexual misconduct with minors or had a propensity to do so. But several students provided evidence that the behavior of the two indicated that they were having a relationship.  The trial court granted summary judgment on the plaintiff's negligence cause of action.   It concluded that the district did not have a duty to protect the plaintiff from sexual abuse unless it knew the instructor had previously engaged in sexual misconduct or had a propensity to do so, and because the instructor's outward conduct toward the plaintiff was "ambiguous."  The trial court further ruled that the plaintiff could not recover on her cause of action for breach of the mandatory duty to report suspected abuse under the Child Abuse and Neglect Reporting Act (CANRA), Penal Code section 11164, because none of the district's employees knew or reasonably suspected the sexual assault occurred.

The appellate court ruled that the trial court's analysis of the duty issue regarding the negligence cause of action was erroneous.  The law established that the district's administrators were in a special relationship with the district's students that imposed a duty of care to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee's history of committing, or propensity to commit, such abuse.  The duty includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties, including a teacher's sexual assault.  The district was vicariously liable for its employees' negligence.  Once a court determines a defendant owes a duty to a plaintiff, the questions of breach and causation are usually questions for the jury.  The exception is where the Rowland v. Christian policy factors establish that a category of cases should be exempted from the general rule of duty.  The appellate court applied the Rowland factors, and determined that molestation cases where the district administrators lack actual knowledge of an employee's sexual abuse or propensity should not be excluded from the general duty to take reasonable measures to protect students from molestation.  The court disagreed with language in multiple cases that might be interpreted otherwise, pointing out that several predated the 2019 California Supreme Court case of Brown v. USA Taekwondo which established the analysis to apply when determining the existence of a duty of care.  The court reversed summary adjudication as to the negligence claim.

But the court also determined, as a matter of first impression that the CANRA cause of action, based on interpretation of the statutory scheme, required that a plaintiff prove it was objectively reasonable for a mandated reporter to suspect abuse based on the facts the reporter actually knew, rather than facts the reporter reasonably could have discovered.  The court therefore affirmed summary adjudication of the CANRA cause of action.

School District and Administrators Immune from Liability for Failure to Prevent Student Bullying Allegedly Causing Victim's Off-Campus Suicide

In Leroy v. Yarboi, ordered published November 16, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment for the defendant district, its principal, and its assistant principal.  The plaintiffs' decedent, a high school student, suffered from Tourette's Syndrome, sensory integration disorder, and borderline Asperger's Syndrome.  He was in a virtual school program, and attended the high school physically during only two periods.  In one of his classes, several students bullied and harassed the decedent.  The decedent reported one student for harassing him and calling him names.  Both students signed a "no contact" contract agreeing not to have contact with each other.  The day after summer break began, decedent took his own life.  The decedent's parents alleged that the administrators had negligently failed to address and prevent student bullying of the decedent, which caused the decedent to commit suicide; and that the school was vicariously liable for their conduct.  The trial court granted summary judgment on the ground that the administrators did not breach their duties to the decedent, and on the ground that Education Code section 44808 immunized the district and administrators from negligence liability.

The appellate court affirmed the summary judgment on the ground of immunity.  Section 44808 immunizes school districts and their employees from liability for the conduct or safety of students when students are not on school property, unless the district or person has undertaken to provide transportation or a school-sponsored activity, or has otherwise specifically assumed responsibility or liability for off-campus activities.  There is an except for failure to exercise reasonable care under the circumstances.  The plaintiffs asserted that the district and administrators failed to exercise reasonable care under the circumstances.  They argued that the immunity did not cover negligent failure to protect a student from bullying on-campus that led to the student's off-campus suicide.  But the weight of authority holds that 44808 immunize districts and employees from liability for student safety outside school property unless the student was or should have been directly supervised during a specific undertaking.  The provision concerning reasonable care refers to failure to exercise reasonable care during one of the undertakings.  Because the decedent committed suicide off-campus during summer break in his home, while he was not and should not have been supervised by any district employee, and no one at the district had assumed responsibility for his well-being, the district and its administrators were immune from liability under section 44808.

Discovery Accrual Standard Applies to Statute of Limitations for Liability Based on Statute

In Holman v. County of Butte, ordered published August 25, 2021, the Third Appellate District reversed the dismissal of a case on demurrer.  The plaintiff alleged that the defendant county, its Health and Human Services Department, and its Sheriff's Office negligently failed to perform mandatory duties related to investigating and reporting allegations of child abuse the plaintiff's parents perpetrated on him in the mid-2000s.  The plaintiff alleged repressed childhood memories returned to him in 2017.  He filed the lawsuit in 2020.  He sued under Government Code section 815.6.  The county defendants demurred, argued that the statute of limitations prescribed in Code of Civil Procedure section 338, subdivision (a) governing liability based on statute applied.  The statute of limitations is three years.  The defendants contended that because other subdivisions of section 338 expressly provide for accrual based on discovery, the discovery standard of accrual does not apply to subdivision (a).  The trial court agreed.

The appellate court disagreed.  The common law discovery rule is available when section 338, subdivision (a) is the applicable statute of limitations.  The courts have applied the discovery rule to other subdivisions of section 338 that do not expressly provide for application of the discovery rule.  Absent the Legislature's clear intent, the court presumes the Legislature intended to make the common law discovery rule applicable.  The Legislature did not provide that the rule was inapplicable to subdivision (a), nor did it adopt a statute of repose cutting off all liability after a given amount of time no matter the circumstances.  The other subdivisions merely provide different triggers of the limitation period than the judicial discovery rule.  Further, at least one previous case had applied the discovery rule to subdivision (a).  That the plaintiff failed to plead diligence after discovering his cause of action did not affect the timeliness of his complaint, because the plaintiff filed suit within three years of accrual.

Tolling of Statute of Limitations for Minor's Suit includes the Date of the Minor's 18th Birthday

In Shalabi v. City of Fontana, published July 12, 2021, the California Supreme Court affirmed a lower appellate court's decision that a 42 U.S.C. section 1983 lawsuit against the defendant city was filed within the statute of limitations.  The plaintiff alleged that on May 14, 2011, a city police officer wrongfully shot and killed the plaintiff's father.  The plaintiff was a minor at the time.  The minor's 18th birthday was December 3, 2011.  The minor filed suit December 3, 2013.  The trial court held a bifurcated bench trial on whether the suit was barred by the two-year statute of limitations.  The trial court concluded that the minor filed the suit one day late.  Although the statute of limitations was tolled while the plaintiff was a minor, the trial court relied on the unpublished California Supreme Court decision in Ganahl I, which included the date the minor plaintiff in that case reached the age of majority in calculating when the statute of limitations period commenced after tolling during minority ended.  The appellate court reversed, holding that the minor's 18th birthday should have been excluded in calculating when tolling ended and the statute of limitations began.

The California Supreme Court agreed. State law controls tolling of the statute of limitations for a section 1983 claim. Under Code of Civil Procedure section 352(a), when a minor is injured, the statute of limitations is tolled until the minor turns 18.  Code of Civil Procedure section 12 sets forth the ordinary rule for computing time.  Under it, the time within which any act provided by law is to be done is computed by excluding the first day and including the last (unless the last day is a holiday).  A uniform rule governing the method of computing time promotes clarity and stability. A case will not be
found to come under an exception to the general rule unless there is a clear expression of provision for a different method of computation.  There is no such expression concerning minors.  The Ganahl I case is not binding authority, because there was an in-bank decision after it; and it is not persuasive authority.  Because the plaintiff's December 3, 2011 birthday was included in the tolling period, the lawsuit brought December 3, 2013 was timely.

Statutory Treble Damages Provision for Cover-Up of Childhood Sexual Abuse Is Punitive Damages Award, Barred by Statutory Immunity

In Los Angeles Unified School District v. Superior Court (Doe), published May 21, 2021, the Second District Court of Appeal, Division 3 issued a writ directing a trial court to grant a motion to strike a treble damages prayer in a lawsuit.  The lawsuit alleged that the petitioner district covered up an employee's sexual abuse of a student, leading to the sexual abuse of the plaintiff student.  The suit alleged causes of action against the district for negligent hiring, supervision, and retention; breach of mandatory duty to report suspected child abuse; negligent failure to train, warn, or educate; and negligent supervision of a minor.  The plaintiff sought an award of economic and noneconomic damages against all defendants, and an award of treble damages under Code of Civil Procedure section 340.1 against the district.  The district moved to strike the treble damages prayer under Government Code section 818, which immunizes public entities from punitive and exemplary damages.  Relying on the legislative history of the amendment of section 340.1 that added the treble damages provision, the trial court denied the motion, ruling that the treble damages provision had a compensatory function.

The appellate court disagreed.  The Government Claims Act maintains souvereign immunity from punitive damages that are awarded to punish the defendant and to deter outrageous conduct in the future, while waiving immunity for normal tort damages awarded to compensate the plaintiff for injury suffered, restoring the plaintiff as nearly as possible to her former position.  Treble damages under section 340.1 are imposed to punish and deter cover-ups, not to compensate the plaintiff.  The legislative history-- including a statement attributed to the bill's author that the treble damages are needed "to compensate victims who never should have been victims" as well as an "effective deterrent" against cover ups--does not unambiguously demonstrate the Legislature in fact added the treble damages provision to the statute for that purpose.  While the fact that an entity covered up past abuse may add to a victim's emotional distress, that is an item of harm for which a jury can award compensatory damages.  By definition, the treble damages award is in addition to the plaintiff's actual damages.  The treble damages provision is plainly designed to punish those who cover up childhood sexual abuse and thereby to deter future cover-ups, rather than to compensate victims.  The provision is therefore primarily punitive under section 818.  Case law allowing mandatory civil penalties under section 818 is inapposite; those provisions lie outside the perimeters of a tort action and are fixed amounts.  The treble damages are awarded only in tort actions for injury, and are based on a jury's calculation of damages.  They are therefore punitive damages.

Alleged Police Violation of Miranda Rights Violated Clearly Established Fifth Amendment Rights, but Violation of Fourteenth Amendment Rights Not Clearly Established

In Tobias v. Arteaga, published April 27, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part a district court decision denying a summary judgment motion based on qualified immunity.  Police arrested the plaintiff, then 13, on suspicion of murder.  At the police station, two detectives intensively questioned the plaintiff for 20 minutes before reading him his Miranda rights.  The plaintiff stated that he understood the rights.  The detectives showed the plaintiff security camera footage that they asserted showed the plaintiff.  The plaintiff said, "Could I have an attorney?  Because that's not me."  A detective responded, "But--okay.  No, don't worry.  You'll have the opportunity."  The detectives continued to question the plaintiff.  The two detectives then left the room, telling the plaintiff that his mother would be in to talk with him.  Instead, a third detective entered and questioned the plaintiff aggressively for 40 minutes.  The detective repeatedly told the plaintiff that his lack of confession was a "lie" and would make him look like a "cold blooded killer."  The plaintiff confessed.  A jury convicted the plaintiff of murder.  The state court of appeal reversed the trial court's ruling on a motion to suppress the confession as coerced.  On remand, the charges were dismissed.  All parties now agree that the plaintiff was not involved in the murder.  The plaintiff sued the detectives under 42 U.S.C. section 1983 for violation of the Fifth Amendment right against self-incrimination and Fourteenth Amendment substantive due process.  The district court denied the defendant detectives' motion for summary judgment on the ground that the facts, viewed in the light most favorable to the plaintiff, established violation of clearly-established law.

The panel majority upheld denial of qualified immunity on the claim that the detectives violated the plaintiff's Fifth Amendment right to counsel by continuing his custodial interrogation after he requested an attorney, and then using the resulting confession against him in his criminal case.  When a suspect makes an unambiguous request for an attorney, he is not subject to further questioning until a lawyer has been made available.  The plaintiff's statement was an unequivocal invocation of his right to counsel under clearly established law.  The third detective further violated the plaintiff's rights by engaging in an unconstitutionally coercive interrogation, by threatening the plaintiff would receive less favorable treatment for exercising his rights.    That the plaintiff was told he would be treated more harshly for "lying," rather than for failure to cooperate, did not make a difference.  When a suspect tries to cooperate by telling the truth, but the police continue to demand his "cooperation" by confessing, the law clearly established that the interrogation was coercive.  While the other two detectives did not directly participate in this part of the questioning,  there was evidence suggesting they observed the questioning and might be liable for failure to intervene.  The 9th Circuit remanded that issue to the district court.  While the coercive questioning might violate the Fourteenth Amendment, cases finding such interrogation violated due process involved longer interrogations.  Because the law was not settled on whether a shorter interrogation violated due process, the officers were entitled to qualified immunity on the Fourteenth Amendment claim.

A concurring and dissenting judge would have granted qualified immunity on the coercive questioning Fifth Amendment claim, on the ground that the law did not clearly establish the questioning was unconstitutionally coercive.

 

Social Workers Not Entitled to Qualified Immunity for Judicial Deception, but Employing County Not Liable for Minor Medical Examinations in Violation of Policy

In Benevidez v. County of San Diego, published April 12, 2021, the 9th Circuit affirmed in part and reversed in part a district court's dismissal of an action against social workers and their county employer.  The complaint alleged that the defendant social workers obtained a protective custody warrant and removed the minors from their home.  A juvenile court held a detention hearing to remove the minors and issued an order allowing medical examination of the minors.  The parents were present at the detention hearing, but neither the defendant social workers nor any county employees discussed the medical examinations with the parents before or after the hearings.  There were no discussions of medical examinations at the hearings.  No county employee sought the parents' consent to the examinations, or advised them of their right to be present  at the examinations.  These alleged actions contravened a 2015 county policy requiring employees to obtain parental consent and advise parents of their right to be present.  The minors were then examined under the court orders.  The parents were not informed until after the examinations took place.  The parents appealed the juvenile court's removal decisions but not the medical examinations or related orders.  The parents then filed suit in federal court.  The federal court dismissed the second amended complaint.

The 9th Circuit affirmed the district court's decision that the Rooker-Feldman doctrine did not deprive the federal court of jurisdiction.  The doctrine prevents federal lawsuits that challenge a state court's judicial actions, and thus act as de facto appeals from the state court action.  The doctrine does not apply where a plaintiff alleges that court orders were obtained through extrinsic fraud.  Here, the plaintiffs adequately pleaded that the examination orders were obtained without their knowledge, and that the requests falsely represented that reasonable efforts had been made to notify the parents about the medical examinations.  The parents' lack of appeal of the juvenile court decision on the medical examinations did not affect the doctrine, since an appeal would not have remedied the damage done by the examinations having taken place.  The district court erred by granting the social workers qualified immunity, because regardless of whether liability for performing the examination was settled or not, the law barring judicial deception in regard to child custody proceedings was sufficiently established to give the defendants fair notice that what they were allegedly doing violated the parents' Fourteenth Amendment right to familial association.  The district court properly dismissed the Monell allegations of county liability.  Because the social workers' conduct allegedly violated the county's policy, the policy itself could not have caused the injury.  And a single incident in a non-life-threatening situation was insufficient to support liability for failure to train.

Summary Judgment on Substantive Due Process Claim Proper Where Disputed Facts Immaterial and Public Entity Refuted Plaintiff's Claims

In Momox-Caselis v. Donohue, published on February 3, 2021, the 9th Circuit Court of Appeals affirmed summary judgment in favor of a defendant county and its employees.  The plaintiffs are the natural parents of a deceased infant.  The county removed the infant from the plaintiffs' custody due to long-term neglect.  After the county received a report that the infant's foster parents had abused another foster child, the county removed her from that placement and placed her with new foster parents.  The new foster father accidently gave the infant an overdose of allergy medication, and the infant passed away.  The parents alleged that the infant was wrongfully removed from their home, wrongfully removed from the initial foster placement, and placed in a neglectful foster home, in violation of state and federal law, including the Due Process Clause of the Fourteenth Amendment.  The district court held that the plaintiffs failed to present evidence to support their claims, and that there was not a genuine dispute of material fact that would rise to the level of deliberate indifference by the county.  It granted the defendants summary judgment.

The Court of Appeals ruled that the plaintiffs had waived several of their appellate arguments, either by not raising them in the district court, making arguments inconsistent with those in the district court, or failing to support the arguments.  The plaintiffs alleged that the county removed the infant from their home in violation of Due Process, but failed to address the Fourteenth Amendment case law governing removal of a child from her parents, or how the manner of removal violated Due Process.  The plaintiffs therefore failed to raise a genuine issue of material fact on that claim.  They alleged that county official or unofficial policy led to improper licensure of the second foster family, improper placement of the infant into its custody, or failure to supervise the placement.  But the plaintiffs failed to point to a specific county policy or practice that violated the infant's Due Process rights.  They also inconsistently argued that the county failed to follow its policies and that it failed to discipline employees who flouted policies.  They therefore failed to present a viable Monell claim against the county.    Instead, the county provided voluminous evidence of the licensing and training the foster family had to undergo.  Any factual disputes on narrow issues did not raise genuine disputes of fact that would save this claim from summary judgment.  Most important, the plaintiffs failed to provide evidence raising a genuine issue of fact that the county acted with deliberate indifference, which would be necessary for a "special relationship" or a "state-created danger" exception to overcome the rule that the Due Process clause does not confer an affirmative right to governmental aid or impose a duty on the state to protect individuals from third parties.  The various pieces of information the plaintiffs pointed to did not show that the county had notice of a danger relevant to the harm the infant suffered, or were deliberately indifferent to that danger.

While Familial Relationship Claims of Parent and Child Raise Identical Issues, Ambiguous State Court Verdict Prevents Claim Preclusion

In Hardwick v. County of Orange, published November 18, 2020, the 9th Circuit affirmed a district court's denial of summary adjudication in a plaintiff's favor of a claim for loss of familial association.  County social workers allegedly made misrepresentations to a court that resulted in minors being removed from their mother's custody and put into foster care.  The mother sued the social workers and the county in California state court.  She obtained a verdict against some of the social workers that they had violated her Fourteenth Amendment right to familial relationship, or her right of privacy.  She obtained a verdict against the county based on failure to train.  When one of the minors obtained the age of majority, she sued the social workers and county in federal court, asserting violation of her right to familial association.  She sought summary adjudication against the social workers and county based on claim preclusion from the state court verdict in her mother's favor.  The district court denied summary adjudication, and granted a defense summary judgment motion by the county.  The case against the social workers proceeded to jury trial, where the jury entered a verdict in favor of the social workers held liable in the state action.

The 9th Circuit affirmed the denial of claim preclusion.  Both a parent and a child have a right to familial association under the Constitution.  A parent's right is to custody and companionship, and is governed by the Fourteenth Amendment.  The child's right is to companionship, and loss of it due to removal from custody is governed by the Fourth Amendment.  But the same legal standard applies to evaluating both rights.  But claim preclusion requires that the prior action adjudicate the identical issue.  Since the verdict in the state court case found violation of either the right to familial relationship or the right of privacy, it is unclear whether the jury in the state case found violation of the familial relationship right.  The district court therefore properly rejected claim preclusion.  Further, because the Monell claim against the county was based on alleged violation of the constitutional right, the district court properly rejected claim preclusion against the county.