Government Liability Update

Trial Court Did Not Abuse Discretion in Limiting Mini-Openings and Declining Challenges for Cause in Student Supervision Case

In Alcazar v. Los Angeles Unified School Dist., ordered published November 15, 2018, the Second District Court of Appeal, Division 1 affirmed judgment for the defendant school district after a jury trial.  The plaintiff was a middle-school student with learning disabilities who fell and was injured after swinging on a tree branch that broke.  The plaintiff alleged the school failed to properly supervise him.  During voir dire, the trial court initially allowed the parties to give mini opening statements.  During questioning of the first panel, some jurors expressed pre-judgment of the case based on the details given during the mini-openings.  The court then ordered that for subsequent panels the parties could not give mini-openings; instead, the court would read the statement of the case to which the parties had agreed.  The plaintiff's counsel was permitted to give several details of the case in his questioning of jurors.  Two jurors expressed uncertainty on whether they could be fair, but ultimately said they could.  The court declined the plaintiff's challenge to the jurors for cause.  The jury entered a defense verdict.  The plaintiff alleged that the court had exceeded its discretion under Code of Civil Procedure section 222.5 in limiting the use of mini-openings; and that the court abused its discretion in denying the challenges for cause.

The appellate court affirmed the trial court's exercise of its discretion.  Section 222.5, as it existed at the time of the trial, preserved the trial court's discretion to disallow mini-openings depending on the circumstances.  The circumstances here included jurors stating they had prejudged the case based on the mini-openings given.  The court has discretion to deny a challenge for cause, unless the juror expresses views indicative of an unalterable preference in favor of one side.  Since both jurors here stated they could keep an open mind, the court had discretion to deny the challenge.

Officers Violated Fourth Amendment and Is Liable under State Law for Arresting Middle-School Students to Teach Them a Lesson

In Scott v. County of San Bernardino, published September 10, 2018, the 9th Circuit affirmed summary judgment granted to the plaintiffs, three middle-school students.  The three students, 12- and 13-year-old girls, went to school officials to talk about another student's bullying and threats toward them.  A school administrator asked one of the defendants, a deputy who was a school security officer, to come to the campus to talk to the girls and the girl they complained about.  He intended to mediate the conflict.  WIthin a few minutes, however, he decided that the girls were being disrespectful.  He decided to arrest them, to prove that he "wasn't playing around," "to prove a point" and "to make [them] mature a lot faster."  He and another deputy defendant handcuffed the girls.  The allege aggressor was released to her father on campus.  The others were driven in a police vehicle to  the sheriff's department, where they were interviewed and released to their parents.  No charges were filed.  At trial, the district court granted the plaintiffs summary judgment both on their 42 U.S.C. § 1983 claim and their state law false arrest claim.

The 9th Circuit agreed that the deputies were liable.  New Jersey v. TLO ruled that the Fourth Amendment protects students, subject to a "special needs" exception under which warrantless searches do not violate the Fourth Amendment if the actions are justified at their inception and reasonably related in scope to the circumstances that justified the actions.  The arrests violated both parts of the test.  The actions were not justified at their inception.  The deputies had no specific information any of the arrested girls had done anything.  Further, under the special needs exception, the officers' subjective motivation may be considered.  The deputies' stated reasons for the arrest did not provide justification for arrest.  Further, handcuffing and arresting middle-school girls was an unreasonable response to the school's need.  Because the law was clear that the deputies' arrest violated the Fourth Amendment, they were not entitled to qualified immunity.  Under state law, none of the statutes under which the deputies justified the arrest applied.  The district court therefore properly granted summary judgment on the state law false arrest ground as well.

Although the Government Claims Act Exempts Childhood Sexual Molestation Causes of Action from the Claim Presentation Requirement, It Permits Local Public Entities to Impose Their Own Claim Requirements

In Big Oak Flat-Groveland Unified School District v. Superior Court (Doe), ordered published March 16, 2018, the Fifth District Court of Appeal issued a writ of mandate directing the trial court to sustain the defendant school district's demurrer to the plaintiff's complaint.  The minor plaintiff alleged that the defendant school district had negligently failed to prevent a teacher's alleged molestation of her between 2013 and 2014.  The plaintiff filed suit against the district in 2015.  She did not present a claim for damages.  The complaint alleged that under Government Code section 905, subdivision (m), her claim for childhood sexual abuse was exempt from the claim presentation requirement in the Government Claims Act.  The district demurred on the ground that Government Code section 935 authorized local public entities to impose their own claim requirements on claims exempted by Government Code section 905 from the Government Claims Act's claim-presentation requirements.  The trial court overruled the demurrer, on the ground that the Legislature's intent in enacting section 905(m) was to exempt childhood molestation claims from the claim-presentation requirements.

The appellate court held that Government Code section 935 permitted the district to enact its own claim-presentation requirements for claims exempted under section 905; and that because the plaintiff failed to satisfy those requirements by presenting a timely claim, her suit against the district was barred.  Government Code sections 905 and 935 are unambiguous and coordinated:  If a claim is listed in section 905, the Government Claims Act's claim-presentation requirements do not apply; but under section 935, claims against a local public entity exempted by section 905 "and which are not governed by any other statutes or regulations expressly relating thereto" shall be governed by the claim procedure prescribed in any charter, ordinance, or regulation the local public entity adopts.  The procedure may include a claim-presentation procedure, so long as the time for presenting the claim is not shorter than that prescribed in the Government Claims Act.  Multiple cases have held that these provisions are unambiguous, and permit local entities to impose their claim-presentation requirements on causes of action otherwise exempt under section 905.  Because the statutes are not ambiguous, there is no need to consider the Legislature's intent.  But if that intent is considered, the court ruled, it does not change the result.  The Legislature passed section 905(m) with the intent that childhood sexual molestation claims be exempted from the claim-presentation requirement.  But the Legislature did not address or consider section 935, or provide that section 905(m) was exempt from it.  The plaintiff argued that Code of Civil Procedure section 340.1, which governs statutes of limitation for childhood sexual molestation claims, was an "other statute" governing under section 935, since section 905 refers to it.  The court rejected this argument, interpreting the "other statute" language to refer to another statute concerning claims presentation.  A statute of limitation does not govern claims presentation.  The appellate court commented that if the Legislature's intent was to exempt childhood sexual molestation claims from local entities' claim-presentation requirements, "it is in the Legislature's province, not ours, to address the issue."

Social Worker Violates Clearly-Established Law by Removing Child from Parent without Warrant Based on Parent's Lack of Insurance to Pay for Inpatient Mental Treatment

In Keates v. Koile, published March 6, 2018, the 9th Circuit Court of Appeals reversed in part a district court's dismissal of a mother's and daughter's suit against multiple Arizona child protective services employees.  The complaint alleged that the mother took the 13-year-old daughter to a clinic, where she stated she had been sad, had contemplated suicide in the past, but was not currently experiencing suicidal ideation. The clinic referred the mother to the emergency room of a hospital. The hospital rejected the mother's plans for caring for the daughter at home, and decided to send her to a mental hospital.  The mother initially refused to provide contact information, because she did not have health insurance and was concerned that she was going to be billed for expensive inhouse treatment.  Someone at the hospital called CPS and reported that the minor was suffering severe depression and had attempted suicide, and that the mother could not formulate a safety plan.  The child was kept overnight.  A defendant social worker interviewed the minor without the mother present.  The minor told the social worker her only complaint about her mother was that she yelled, screamed, and cussed.  The minor denied having attempted suicide.  The social worker then issued a temporary custody notice, allowing him to take the child away from her mother and put her into CPS custody.  The daughter was strapped to a gurney, and delivered by ambulance to a mental hospital.  The intake nurse found the daughter's suicide risk to be low.  The social worker concluded that the mother could not care for the daughter.  CPS filed a dependency petition.  When the daughter was discharged, she was put in a foster home and not reunited with her mother for four months.  The district court dismissed the complaint because it concluded that based on the facts alleged the defendants--social workers involved in the case--were entitled to qualified immunity.

The 9th Circuit ruled that the social worker who issued the temporary custody notice and recommended the dependency petition was not entitled to qualified immunity.  It is clearly established that the rights of parents and children to familial association under the Fourteenth, First, and Fourth Amendments are violated if a state official removes children from their parents without their consent or a court order, unless, after reasonable investigation, the available information establishes reasonable cause to believe the child is in imminent danger of serious bodily injury; and the scope, degree, and duration are reasonably necessary to avert the specific injury at issue.  Detaining a minor and removing her from her mother's custody merely because the mother does not have health insurance and is reluctant to pay for inpatient treatment is not an emergency that permits removing a child without a warrant.  The court upheld dismissal of the complaint against the other CPS workers named, because the allegations of their involvement did not state a plausible case that they were sufficiently involved to render them liable.

Absent Imminent Danger, Social Workers Not Entitled to Qualified Immunity for Removing Children from Home without Court Order or Warrant

In Demaree v. Pederson, published January 23, 2018, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment granted to two Child Protective Services social workers in a 42 U.S.C. section 1983 case.  One of the plaintiffs dropped off photos at a store to be printed.  A worker noted that there were nude photos of children, and contacted the police.  Police interviewed the parents, who stated they had photographed their daughters, ages 1-1/2 to 5, nude as keepsakes and would not share them.  The police took the daughters to medical and physical exams, which disclosed no abuse.  The police obtained a search warrant and searched the plaintiffs' house.  A defendant social worker spoke with one of the investigating officers, who told the worker that he expected charges would be brought against the parents.  The social worker consulted with her supervisor (another defendant) and decided to take the children into emergency temporary custody without obtaining a court order or warrant.  The parents were never arrested or charged with a crime, and the children were returned to them after a month.  The district court granted the defendants summary judgment based on qualified immunity.

The 9th Circuit majority determined that, viewing the facts in the light most favorable to the plaintiffs, the defendants were not entitled to qualified immunity.  Because the social workers did not have reasonable cause to believe the children were at imminent risk of serious bodily injury or molestation, taking the children violated the parents' and children's constitutional right under the Fourth Amendment to live together without governmental interference.  The Fourth Amendment requires government officials to obtain prior judicial authorization before removing a child from a parent, unless, in an emergency, officials have reasonable cause to believe that the child is likely to experience serious bodily harm in the time required to obtain a warrant.  No facts showed such a danger here.  Further, the law clearly established that the social workers' actions would violate the Fourth Amendment.  Ninth Circuit case law published at the time of the incident established that under worse circumstances than those here, removing a child from a parent's custody without court authorization violated the Fourth Amendment.  The law established beyond debate that the children could not be removed absent evidence of imminent danger to the child of serious bodily injury, and that the facts here did not meet the standard.

One judge dissented from denial of qualified immunity, on the ground that the incident happened on the Saturday of a holiday weekend, there were allegations of serious abuse, and the law was not clearly established that under those circumstances removing the children without court authorization would violate the Constitution.

Childhood Molestation Statute of Limitations Does Not Create Accrual Date for Purposes of Government Claims Act

In Rubenstein v. Doe 1, published August 28, 2017, the California Supreme Court reversed a Court of Appeal decision that the plaintiff had complied with the Government Claims Act deadline to present a timely claim. The plaintiff alleged that in 1993-1994, when she was a high school student, her coach, an employee of the defendant district, sexually molested her.  She presented a claim for damages to the district in 2012, when she was 34.  She alleged that latent memories of the sexual abuse resurfaced in 2012.  She contended that the claim was timely.  The Government Claims Act requires that a personal injury claim for damages be presented to the defendant public entity no later than six months after accrual. Under Government Code section 901, the date of accrual for purposes of the Government Claims Act is the accrual date that would pertain under the statute of limitations applicable to a dispute between private litigants.  The plaintiff contended that Code of Civil Procedure section 340.1 creates the date of accrual for claims alleging failure to prevent childhood molestation.  Section 340.1, as it existed at the time of the molestation and as subsequently amended between 1990 and 2002, expanded the statute of limitations for childhood sexual molestation. It extended the deadline to sue to the plaintiff's 26th birthday; then, in 2002 while the plaintiff was still under 26, it allowed suits after the 26th birthday if the defendant was on notice of unlawful sexual conduct by an employee and failed to take reasonable steps to prevent the misconduct.

The Supreme Court majority concluded that section 340.1 did not set the accrual date for childhood sexual molestation claims. Instead, it tolled the statute of limitation for suing for injuries from molestation.  That does not affect the time to present a claim.  The cause of action accrues at the time the abuse occurs.  The court based this conclusion on the wording of the statute; on case law interpreting similar statutes; on the policy behind the claim statutes, in preventing late claims that endanger public entity fiscal planning and result in difficulties in investigation or preventing future harm; and on the 2008 passage of Government Code section 905, subdivision (m), which eliminates the claim requirement for childhood molestation claims, but only for conduct occurring after 2009.  The limitation on the amendment shows a legislative intention to limit public entity exposure for molestation claims.  The court also rejected the argument that section 340.1 provided a delayed discovery standard of accrual for molestation claims.  The court disapproved the decision in K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229.

Justice Werdegar dissented.  She opined that the majority's decision immunized public entities from liability for pre-2009 molestation claims.

 

No-Contest Plea to Juvenile Court's Dependency Jurisdiction Order, Combined with Discretionary Immunity, Bars Lawsuit against Social Workers for Detaining Children

In Gabrielle A. v. County of Orange,  published on April 19, 2017, the Fourth District Court of Appeal, Division 3, affirmed summary judgment in favor of the County of Orange and a group of social workers in a lawsuit brought by two parents on a variety of causes of action arising from the detention of a newborn child and a two-year-old child for six months.  The children were originally taken from the mother, who gave birth in Orange County while visiting from Los Angeles County without her husband, because the mother was allegedly acting irrationally and aggressively after the birth.  The parents pleaded no contest to a Welfare & Institutions Code section 300 order making the children dependents of the juvenile court.

The appellate court held that the record established that the parents entered into the no-contest plea knowingly.  The no-contest plea removed the premise of the parents' claims that the children were wrongfully detained, removed, and subjected to the juvenile court's jurisdiction due to the alleged misconduct of the social workers.  Further, the social workers and the county were entitled to statutory immunity.  Government Code section 820.2, the discretionary immunity, covers social workers for child placement decisions; and under Government Code section 815.2, the county shares the immunity.  The exception to the immunity under Government Code section 820.21 for social workers who commit perjury, fabricate evidence, or fail to disclose exculpatory evidence did not apply, because the parents' evidence did not raise a triable issue of material fact on whether the social workers acted with malice.  The causes of action for negligent supervision, hiring and retention failed because the nonstatutory causes of action could not be asserted against the county, and the parents failed to raise a triable issue of fact on whether any of the individual defendants could be held liable for those causes of action.  The causes of action under the Bane Act, Unruh Act, and Ralph Act failed because there was no evidence of violence, threat of violence, or discrimination.

Statute of Limitations under IDEA Runs from the Date the Parents Knew or Should Have Known of the Alleged Actions on Which Their Complaint Is Based

In Avila v. Spokane School Dist. 81, published March 30, 2017, the 9th Circuit Court of Appeals reversed the dismissal of claims under the Individuals with Disabilities Education Act as time-barred.  The Administrative Law Judge who heard the plaintiff's parents' due process complaint under the IDEA ruled that claims based on occurrences that took place more than two years before the parents filed their due process complaint were barred by the IDEA's two-year statute of limitations.  The district court agreed.

In a matter of first impression, the 9th Circuit sought to harmonize two provisions of the IDEA that set forth statutes of limitations.  20 U.S.C. § 1415(f)(3)(C) prescribes that parents shall request a due process hearing "within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint . . . ."  20 U.S.C. § 1415(b)(6)(B) prescribes that parents have an opportunity to present a complaint "which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint . . . ."  The court rejected a "2+2" interpretation under which the parents have two years from discovery to file a complaint about actions that occurred up to two years before discovery.  Instead, the 9th Circuit concluded that under the IDEA, the statute of limitations for parents to file a due process complaint is two years from the date they knew or should have known of the alleged actions that form the basis of the complaint.

Procedural Errors in Drafting Individualized Education Plan violate IDEA and Shift Burden to School District to Prove Child Received Free and Appropriate Public Education

In M.C. v. Antelope Valley Union High School Dist., published March 27, 2017, the 9th Circuit Court of Appeals reversed a district court order affirming an administrative law judge's decision in a due process hearing brought by the parent of a blind child under the Individuals with Disabilities Education Act.  The parent alleged that the child's Individualized Education Plan was procedurally inadequate because the IEP the parent signed included an offer of 240 minutes of services by a teacher of the visually impaired a month, which the district unilaterally amended more than a month later to 240 minutes per week without notifying the parent.  At the hearing, District witnesses testified that the district offered the child 300 minutes of TVI services per week.  The parent also alleged that the IEP failed to specify the assistive technology devices offered; and that the district failed to file a response to the parent's due process complaint.

The 9th Circuit emphasized that federal courts review decisions in IDEA due process decisions de novo.  It criticized the district court for deferring to the ALJ's decision because it was lengthy and the due process hearing was three days long.  The 9th Circuit concluded that the district violated the IDEA's procedural requirements by amending the IEP without notifying the parent or obtaining her consent to the modification, and because the amount of TVI even in the amended IEP did not match the amount the district witnesses testified to in the hearing.  Further, had the district brought the error to the parent's attention before the due process hearing, the parent might have agreed to the number of hours provided, avoiding the hearing and the attorney fees the parent incurred.  The IEP was also procedurally inadequate because it did not specify the AT devices provided.  Parents must be able to use the IEP as a monitor and enforce the services their child is to receive.  If the parent is unaware of the services offered to the child, and cannot monitor how they are provided, a Free and Appropriate Education is denied.

The 9th Circuit also concluded that the IDEA was procedurally violated because the district did not file a response to the parent's due process complaint.  A response gives notice of the issues in dispute and binds the answering party to a position.  When a school district fails to file a timely answer, an ALJ must not go forward with the hearing.  The ALJ must order a response, and shift the cost of the delay to the district regardless of who is ultimately the prevailing party.

Normally, the party alleging a violation of the IDEA bears the burden of showing the services provided amount to a denial of FAPE.  But where procedural violations as to the IEP deprive the parent of knowledge of what services are offered, the burden shifts to the school district to show that the services provided are adequate.  The 9th Circuit emphasized that on remand, the ALJ must determine whether the services were adequate under the standard the U.S. Supreme Court articulated in Endrew F. v. Douglas County School Dist., decided March 22, 2017. 

 

Disabled Students Must Exhaust IDEA Administrative Requirements before Suing under Title II or Rehabilitation Act only if the Gravamen of the Lawsuit Is Denial of Free and Appropriate Public Education

In Fry v. Napoleon Community Schools, published February 22, 2017, the U.S. Supreme Court reversed dismissal of a disabled student's suit against school districts and a principal for a school's refusal to permit the student's service dog to assist the student at school.  The student sued under Title II of the ADA and section 504 of the Rehabilitation Act, alleging disability discrimination.  The district court dismissed the suit, and the circuit court affirmed the dismissal, under 20 U.S.C. § 1415(l), part of the Individuals with Disabilities Education Act.  The subdivision states that the IDEA's remedies do not preclude suits under Title II or section 504, but that when such suits seek relief that is available under the IDEA, the plaintiff must exhaust the IDEA's administrative requirements.

The Supreme Court held that these exhaustion requirements apply only when a suit under Title II or section 504 seeks recovery for a denial of a Free and Appropriate Public Education, because a FAPE is the only remedy available under the IDEA.  In determining whether a suit seeks recovery for denial of FAPE, a court should look past the wording of the complaint and determine the gravamen, or substance, of the lawsuit.  The Court suggested  asking whether the same lawsuit could be brought by a disabled child if the defendant were not a school (such as a public theater or library), or if the plaintiff were an adult rather than a student.  If so, the lawsuit may not be subject to the exhaustion requirements.  Additionally, that a plaintiff began administrative proceedings under the IDEA before filing suit may be evidence that the gravamen of the suit is denial of FAPE.  The Court remanded the case to the lower courts to apply these tests.