Government Liability Update

Public Hospital Immune from Liability for Employee's Alleged Sexual Abuse of Minor Mental Patient

In State Department of State Hospitals v. Superior Court (Jane Doe), published November 2, 2022, the First District Court of Appeal, Division 5 issued a writ directing a trial court to sustain the petitioner department's demurrer without leave to amend.  The real party plaintiff alleged that between 1997 and 1999, when she was a minor and a ward of the state confined at a state hospital, she was sexually assaulted by a department counselor.  She sued the department for negligence, negligent supervision/training/hiring/retention, sexual battery, assault, and statutory civil rights violations.  The department demurred to the complaint, based on Government Code section 854.8, subdivision (a)(2)'s immunity for injuries to mental patients.  The trial court concluded that section 854.8's exception for liability under Government Code section 855 (failure to provide adequate or sufficient equipment, personnel, or facilities required by statute or regulation) applied.  The trial court reasoned that Government Code section 815.2, which imposes vicarious liability on public employers for their employees' acts and omissions, provides minimum personnel standards.  It overruled the demurrer as to all causes of action except negligent supervision/training/hiring/retention, and granted the plaintiff leave to amend that cause of action to bring it within the scope of the exception to section 854.8.

The court of appeal disagreed with the trial court's reasoning.  Section 854.8 provides public entities broad immunity from liability for injuries suffered by an inpatient of a mental institution.  The immunity prevails over all liability provisions of the Government Claims Act, with the exception of the sections expressly described in the statute as exceptions.  The plaintiff relied on the exception for section 855.  Section 855, subdivision (a) imposes liability only when a statute or regulation sets forth a specific standard that gives the public medical facility clear notice as to the minimum requirements with which it must comply.  The trial court erred in ruling Government Code section 815.2 imposes minimum personnel standards triggering liability under section 855.  Section 815.2 does not require any public entity to provide adequate or sufficient equipment, personnel or facilities.  Further, section 815.2 is not one of the statutes listed in section 854.8 as an exception to the statute's immunity.  Section 815.2 is merely a general liability provision of the Act.  It is trumped by the specific immunity provision of section 845.8.  The plaintiff contended she could amend her complaint to allege the department violated other statutes and regulations, including the mandated reporting statute and regulation.  But neither the statute nor the regulation prescribes minimum standards for equipment, personnel, or facilities; and the plaintiff did not indicate she could allege those provisions were violated or proximately caused her injury.  None of the other regulations plaintiff contended were violated provide the requisite specific minimum standards.  The appellate court overruled its previous decision in Baber v. Napa State Hospital (1989) 209 Cal.App.3d 213 that similar regulations supported liability under section 855.  The court instead followed Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, which requires that statutes or regulations impose specific minimum standards to support section 855 liability.

Alleged Participation in Obtaining Restraining Order without Informing Court of Custody Order, and Participation in Removing Child without Reasonable Cause and Detaining Child beyond Reasonable Period, Violates Clearly Established Law

in David v. Kaulukukui, published June 27, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer's motion to dismiss a 42 U.S.C. section 1983 lawsuit.  According to the complaint, a custody order awarded the plaintiff full custody of her daughter, denied the father visitation rights, and ordered that the father stay away and have no contact with the plaintiff.  The plaintiff and daughter lived on the Island of Hawaii, while the father lived on Kauai.  The plaintiff and child visited family on Kauai.  During the visit, the father had contact with the plaintiff and daughter over the plaintiff's protests.  The plaintiff then took the daughter to the father's workplace and demanded he apologize to the daughter.  When the plaintiff yelled at, pushed, and taunted the father, the police arrested her.  She posted bail, and she and the daughter returned to the island of Hawaii.  According to the plaintiff's complaint, after the altercation the defendant officer met with the father at the Kauai county police department.  The officer prepared and filed a petition for a protective order in family court on the father's behalf seeking to prohibit the mother from contacting any of the father's family members, including the daughter.  The petition did not mention the custody order.  The family court granted the petition and issued a TRO prohibiting the mother from having any contact with her daughter.  Two weeks later, a child welfare services official visited the mother's home and rated the mother a low to moderate risk score.  During the visit, the mother informed the CWS worker of the custody order.  A few days later, CWS officials conducted a "grab and go," taking the daughter from her school without a court order or prior notice to the mother, and put her in the father's custody on Kauai.  When the plaintiff attempted to report to the Kauai county police department that the daughter had been "kidnapped and was in the custody of an allegedly abusive, non-custodial parent, the defendant officer allegedly worked with other defendants to prevent the allegations from being investigated or a police report from being filed.  Eleven days later, the family court held a hearing on the TRO, learned of the custody order, and dismissed the prohibition against the plaintiff having contact with her daughter.  The daughter was returned home 21 days after being grabbed from her school.  The district court denied the defendant officer's motion for dismissal based on qualified immunity, on the ground that the operative complaint stated a plausible claim for violation of a clearly established right to familial association.

The court of appeals agreed.  A right to familial association under the 14th Amendment (for parents) and the 4th Amendment (for children) is clearly established.  9th Circuit case law at the time of the incident clearly established that as part of that right, parents and children have a right to be free from judicial deception in child custody proceedings and removal orders.  Judicial deception may occur through either affirmative misrepresentation or deliberate omission.  The facts alleged state a plausible claim that the defendant officer prepared a petition that intentionally omitted any reference to the custody order, and did not otherwise inform the court of the order; and that had the judge been informed, the court would not have granted the order.  It therefore stated a plausible claim for violation of the mother's and child's right familial association based on judicial deception.  Any reasonable official would understand that deliberately concealing material custody information from a court for the purpose of depriving a custodial parent of a child violates the law.  The allegations that the defendant officer's participation in removing the daughter and placing her in the father's custody also stated a plausible claim that the defendant violated clearly established law that removal of a child from a parent without the parent's consent or a court order, absent reasonable cause to believe the child is in imminent danger, violates the right to familial association.  The facts alleged also state a plausible claim that the continued separation exceeded that reasonably necessary to avert the specific injury at issue.

Public Entity's Attorneys Did Not Violate Minors' Constitutional Privacy Rights by Reviewing the Plaintiffs' Juvenile Case Files without Obtaining a Court Order

In A.C. v. Cortez, published May 13, 2022, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 suit against a county and its attorneys.  In an earlier lawsuit, the minor plaintiffs sued the county and county social workers for allegedly violating their 4th Amendment rights by interviewing them in the course of a child-abuse investigation, without a court order or parental consent.  Attorneys defending the county in that action reviewed the county's child-abuse investigation file without first obtaining a court order.  The plaintiffs then brought this action, alleging that the attorneys who accessed the file violated their constitutional right to privacy.  They relied on Gonzalez v. Spencer (9th Cir. 2003) 336 F.3d 832.  The district court granted the defendants' motion to dismiss.  In an unpublished decision, the 9th Circuit affirmed the dismissal as to the individual defendants based on qualified immunity.  The decision did not address the plaintiff' Monell claim against the county.  On rehearing, the 9th Circuit addressed the Monell issue.

The 9th Circuit concluded that the Gonzalez case did not identify a per se constitutional right in juvenile records that is always violated by third-party access.  Instead, the court applied the balancing test for determining when the federal constitutional right to informational privacy is properly infringed based on a showing of proper governmental interest.  Under this test, the court presumed that the files contained some highly sensitive information.  The potential for harm seemed low, since the information had not been used in any proceeding.  There were safeguards against misuse, because the plaintiffs allege only the county's attorneys reviewed the county's files; the attorneys have a duty to keep their clients' files confidential.  The most crucial factor is the need for access.  The need is high, because the county's attorneys have a duty to represent their client, and they concluded that adequate representation required reviewing the files.  The plaintiffs' prior lawsuit pertaining to how the county's employees conducted themselves with the plaintiffs gave rise to the attorneys' need to access the files.  The situation is analogous to litigation waiver in other areas of the law.  The need for access is sufficiently high that it outweighs the lesser possibility of harm.  The district court therefore properly dismissed the Monell claim.

School Personnel Do Not Owe Students Duty to Review Alarm Data and Video Recordings to Constantly Monitor Everyone on Campus

In Doe v. Anderson Union High School Dist., published May 4, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant school district, principal, and superintendent.  A teacher at a high school in the district had a sexual relationship with the plaintiff student, then 17.  The relationship included sexual activity in his classroom.  The school district had no facts, reports, or rumors that the teacher had engaged in any improper relationship.  There were video security cameras aimed at the doors of the classroom.  The video footage was saved for 14 days before automatic erasure.  Per district policy, footage was reviewed only if the district learned of an incident that may have been caught on video.  The district maintained an alarm system that covered the main building and the classroom.  Each employee had a code to deactivate the alarm.  The district had not requested data from the alarm company on when alarms were deactivated or by whom.  The student sued the defendants for negligent hiring and negligent supervision.  The defendants moved for summary judgment on the ground that there was no evidence they knew or should have known that the teacher posed a risk of harm to students.  The plaintiff conceded lack of evidence of negligent hiring, and so focused on negligent supervision.  In opposition to summary judgment, the plaintiff submitted an expert declaration from a retired principal and school administrator.  He opined that the principal had a duty to monitor teachers to determine if they were spending too much time on campus late at night, including interviewing teachers and reviewing video footage.  The trial court ruled that the risk to the plaintiff was not foreseeable.

The appellate court ruled that the district's administrators' duty of supervision to protect students was limited to the risks of harm that were reasonably foreseeable--those known to the administrators or that reasonably should have been known to them.  School districts are not the insurers of their students' physical safety.  Sexual misconduct by school personnel is not inherently foreseeable.  The administrators did not know that the teacher would have se with the student, and had no information that would support a conclusion that they should have known.  They therefore did not have a duty to review alarm data and video recordings to constantly monitor all teachers, students, and campus visitors.  Nor did they have such a duty specifically as to the plaintiff and the teacher.  To impose such a duty on this record would be unreasonable.

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.