Government Liability Update

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  Although the statute of limitations was tolled while the plaintiff was a minor, the trial court relied on the unpublished California Supreme Court decision in Ganahl I, which included the date the minor plaintiff in that case reached the age of majority in calculating when the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.

Alleged Retaliation against Foster Parent for Exercise of First Amendment Rights Violates Clearly-Established Law, but Law Did Not Clearly Establish Alleged Sexual Harassment Violated Equal Protection Clause

In Sampson v. County of Los Angeles, published September 9, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part the dismissal on a Motion to Dismiss of a 42 U.S.C. section 1983 lawsuit against a social worker and his superiors.  The plaintiff alleged that the defendant social worker sexually harassed her while she sought legal guardianship of her niece.  When she complained about the alleged harassment to the social worker's superiors, the social worker and superiors allegedly retaliated against her by failing to assist her in obtaining foster funding, falsely representing that the child's father had unlimited visitation rights (leading to the child's abduction), and pursuing court action to take the child away from the plaintiff.  The plaintiff alleged claims for retaliation in violation of the First Amendment for falsely accusing the plaintiff of abuse and neglect and seeking to remove the child from her custody, and violation of the Equal Protection Clause of the Fourteenth Amendment for the social worker's conduct.  The district court dismissed the claims based on the second prong of qualified immunity:  The law did not clearly establish the rights asserted.

Two judges held that the district court erred in granting qualified immunity on the First Amendment retaliation claim.  They held that earlier Ninth Circuit case law clearly established  in 2015, when the incidents allegedly took place, that the First Amendment prohibits public officials from threatening to remove a child from an individual's custody to chill protected speech out of retaliatory animus for such speech.  That the past case law involved biological parents, rather than a legal guardian, did not matter; case law established that the threat of losing custody would ordinarily chill the free expression of biological parents and legal guardians alike.  Because the district court did not address the first prong of qualified immunity--whether the plaintiff plausibly alleged a First Amendment retaliation claim--the court remanded the issue.

A different two-judge majority affirmed the holding that the law did not clearly establish that the sexual harassment violated the Equal Protection Clause.  The right under the Equal Protection Clause to be free from sexual harassment by public officials in the workplace and school contexts is clearly established by prior 9th Circuit case law.  But the 9th Circuit had never held that the Clause protects private individuals who suffer sexual harassment at the hands of public officials providing them with social services.  The court made it "abundantly clear," however, that, moving forward, state public officials violate equal protection when the sexually harass the people they serve.

Social Worker Did Not Violate Family's Fourteenth Amendment Rights by Sending False Letter about Custody to Court, because No Loss of Custody Occurred

In Dees v. County of San Diego, published May 27, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed a district court's summary judgment ruling, and affirmed in part and reversed in part the court's ruling on post-trial motions.  The defendant social worker took part in an investigation of an alleged impropriety concerning a stepfather and his daughter.  The social worker initially ordered that the stepfather's two stepdaughters be taken out of the stepfather's custody.  A family court then restored custody.  The social worker was ordered to wrap up her investigation.  Instead, the social worker interviewed one of the stepdaughters, who was nine and suffered from cognitive disabilities, at the stepdaughter's school.  The interview lasted five minutes.  The social worker advised the stepdaughter that she could have a school district employee present during the interview, and that the stepdaughter could end the interview at any time.  The stepdaughter did not request an employee be present, and did not terminate the interview.  After the interview, the police told the social worker that their investigation was closed.  The social worker then sent a letter to the family court falsely stating that the stepdaughters had been removed from the custody of their mother.  The family court never acted on the letter.  The mother and stepdaughter sued the social worker and the county, alleging that the letter violated their Fourteenth Amendment right to family association, and that the interview was a seizure of the girl that violated the Fourth Amendment.  The district court entered summary judgment on the Fourteenth Amendment claim.  The Fourth Amendment proceeded to trial, and the jury found that there was no Fourth Amendment seizure.  On the plaintiffs' post-trial motions, the district court granted the plaintiffs judgment as a matter of law on the Fourth Amendment claim.  It alternatively granted new trial.

The appellate panel unanimously affirmed the grant of summary judgment on the Fourteenth Amendment claim.  Ninth Circuit precedent establishes that, to establish a Fourteenth Amendment claim based on a minor being separated from his or her parents, plaintiffs must establish that an actual loss of custody occurred; a threat or investigation is not enough.  Since the family court did not act on the letter, and the mother did not actually lose custody, there was no Fourteenth Amendment violation.  The panel also unanimously ruled that the district court erred in granting judgment as a matter of law.  Because the interview was short, the girl did not ask for the interview to be terminated, and her emotional state after the interview was disputed, there was substantial evidence to support the jury's verdict.  But the majority affirmed the district court's alternative grant of new trial.  It deferred to the district court's ruling that the weight of the evidence was against the jury's decision.  A dissenting judge opined that based on the evidence, the district judge abused the judge's discretion in finding the weight of evidence against the verdict.

School District Did Not Infringe Student's First Amendment or Substantive Due Process Rights by Expelling Him in Response to Private Journal Entry Discussing School Violence

In McNeil v. Sherwood School District, published March 14, 2019, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 case brought by a high school student and his parents.  The student wrote in his personal journal a hit list of students who "must die."  His mother discovered the journal in his room.  She made copies, and sought guidance from a therapist.  The therapist, believing the information triggered his duties as a mandatory reporter, contacted the police.  The police searched the house and confiscated a rifle and ammunition, but found nothing to indicate the student was planning to follow through with the list.  The police did not charge the student.  The police informed the school district.  As required by law, the district informed the parents of students on the list of the list, without identifying the author.  After media inquiries and social media accounts displaying the student's photo, the district informed all parents.  Parents transferred students out of the district, while others had their children skip school.  After a hearing, the district expelled the student for one year for making the list and disrupting the school.  The student sued for violation of his First Amendment rights.  The parents sued for violation of their due process right to educational venue choice.

The 9th Circuit ruled that the district had not violated the student's First Amendment rights.  When determining whether a school’s regulation of a student’s off-campus speech is constitutional, a court must consider all of the relevant circumstances.  The student's lack of intent to communicate the speech to any third party--such as when the student writes in a personal journal--is a relevant consideration, but it is not dispositive.  Here, the lack of intent to communicate the threat was offset by the fact his speech created an identifiable, credible threat of school violence.  He lived close to campus, and had weapons and ammunition.  The speech bore a significant nexus to the school.  The school district could therefore take disciplinary action.  Because his continued presence at campus would cause disruption, the discipline imposed was reasonable and not punitive.  The court also rejected the due process challenge to the expulsion.  That right entitled the parents to enroll the student at the high school.  Once there, the school had the power to administer discipline.  That included expelling the student from campus and supplying alternative, online instruction of him.

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.