Government Liability Update

Pursuit Immunity Does Not Require 100% Certification by Agency's Officers

In Ramirez v. City of Gardena, published August 13, 2018, the California Supreme Court affirmed summary judgment in favor of the defendant city in a wrongful death suit arising out of a police pursuit.  In doing so, it resolved a split in authority between the lower court's decision and the one in Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144.  Vehicle Code section 17001 imposes liability on public entities for negligent or wrongful acts or omissions by public employees operating motor vehicles in the scope of their employment.  Vehicle Code section 17004.7 creates an immunity to that liability for injuries occurring during police pursuits if the entity adopts and implements a vehicle pursuit policy that meets the requirements of that statute.  Subdivision (b)(2) of section 17004.7 requires that promulgation of the policy include " a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy."  The subdivision further provides that failure of an individual officer to sign a certification "shall not be used to impose liability" on an officer or entity.  The question was whether the statute required every officer in a department to certify that he or she had received, read, and understood the policy.

The Supreme Court agreed with the lower court that the answer was no.  It interpreted the statutory language to mean that the policy must include a requirement that all of the officers certify in writing, not that the immunity will not apply if a single officer does not so certify.  If the Legislature had required otherwise, it would have said so.  The alternative interpretation would place a heavy burden on large police agencies by eliminating immunity, despite conscientiously implementing the policy, if a single officer refused or failed to certify receipt, reading, and understanding.  The court did not rely on the "shall not be used" language, since that appears to relate to imposing liability rather than on the existence of immunity.  The court disapproved the Morgan decision to the extent it was inconsistent with this decision. 

Officers' Sudden Warrantless Entry into Plaintiffs' Home Was Proximate Cause of Officer Shooting Homeowner When Homeowner Moved BB Gun

In Mendez v. Conley, published July 27, 2018, the 9th Circuit Court of Appeals, on remand from the U.S. Supreme Court, affirmed judgment against the defendant sheriff's deputies under 42 U.S.C. section 1983, and reversed the judgment in the defendants' favor under California negligence law.  The deputies were looking for a fugitive.  They received a tip that the fugitive rode a bicycle past a residence.  The deputies knocked and entered the residence.  There was a small house behind the residence.  The house showed signs of being inhabited. The deputies entered the house, without knocking.  One of the plaintiffs was sleeping on a futon within.  His BB gun was by his side.  When the officers entered, the plaintiff picked up the BB gun to move it.  It momentarily faced the deputies.  The deputies fired on that plaintiff, seriously wounding him and the other plaintiff in the house.  The district court and 9th Circuit originally ruled that the use of force was reasonable in itself, but was unconstitutional under the "provocation" rule because the deputies' illegal entry provoked the plaintiff to pick up the gun and resulted in the use of force.  The Supreme Court reversed this ruling, holding that the "provocation" rule conflated Fourth Amendment violations.  It remanded for determination of whether the improper warrantless entry proximately caused the plaintiffs' injuries.

The 9th Circuit ruled that the entry did proximately cause the injury.  One of the purposes on the Fourth Amendment's ban on officers entering a residence without a warrant, exigent circumstances, or consent is to avoid violent confrontations between officers and those within a dwelling.  The deputies' violation of the Fourth Amendment without entering was therefore a proximate cause of the incident.  Although the officers were entitled to qualified immunity for not knocking and announcing their presence, and that might be seen as another cause of the incident, the violation of multiple duties causing an incident does not eliminate proximate cause by the actionable violation.  Because the inhabitant's act was foreseeable, it was not a superseding cause.  The 9th Circuit also held that under the circumstances, the officers were negligent.  Although the deputies' failure to knock and announce was not actionable under section 1983 due to qualified immunity, that did not eliminate exposure to liability under state negligence law.

Split in Authority on Whether Intentional Tortfeasors Entitled to Fault Apportionment under Proposition 51; Use of Excessive Force with Intention to Deprive Person of Civil Rights Violates Bane Act

In B.B. v. County of Los Angeles, partially published on July 10, 2018 and modified on July 12, 2018, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a judgment against the defendant county and its deputies in a case in which a suspect passed away after deputy use of force.  The jury apportioned the decedent 40% fault for his own death, found two deputies each 20% at fault, and allocated 20% fault to the remaining deputies.  The jury awarded $8 million in noneconomic damages.  The court entered judgment against one of the deputies for the full amount of the award, on the ground that the jury found he intentionally harmed the decedent.

The appellate court reversed this ruling.  It ruled that in personal injury and wrongful death cases, Civil Code section 1431.2 (aka Proposition 51) requires that noneconomic damages be apportioned as to all defendants according to their respective fault for the injury.  It declined to follow case law from other courts holding or stating in dictum that intentional tortfeasors are not entitled to have the noneconomic judgments against them reduced. 

The appellate court also reversed summary adjudication of the plaintiffs' Civil Code section 52.1 (Bane Act) cause of action.  The trial court ruled that because there was probable cause to arrest the decedent, the use of excessive force was not sufficient in itself to establish Bane Act liability; instead, the plaintiffs had to show some threat, coercion, or intimidation independent of the violation of the civil right itself.  The appellate court ruled that this standard applies only where the violation of the civil right results from negligence or unintentional error.  Where the violation is intentional or spiteful, however, the threat, coercion, or intimidation inherent in the violation of the civil right is sufficient.  There must be a showing that the defendant had the specific intent to violate the subject's civil rights.  The plaintiffs' opposition to summary adjudication presented sufficient evidence to raise a triable issue of fact on whether the defendants deliberately subjected the decedent to excessive force beyond that necessary to make the arrest.  Once the deputles'  use of force crossed that threshold, their conduct became a coercive interference with the decedent's civil rights as proscribed by the Bane Act. 

 

Public Defender Was Not Driving in the Scope of His Employment when Driving Personal Vehicle Home from Office

In Newland v. County of Los Angeles, published June 18, 2018, the Second District Court of Appeal, Division 5 reversed denial of a defense motion for judgment notwithstanding the verdict in an auto accident case.  The driver was a county public defender who worked in the Norwalk courthouse, and commuted from Long Beach.  He needed his personal vehicle for work from time to time, when trying cases in branch courts, meeting clients in jail, and inspecting crime scenes.  On days when he needed his car, he brought it.  When he did not, and public transit was available, he took it.  On the day of the accident, he did not need his car for work.  Convenient public transit was not available from his home in Long Beach.  Driving from the courthouse home at the end of the day, he was involved in the subject accident.  The jury found that the driver was driving in the scope of his duty, and awarded damages against the employer county.

The court reversed the finding that he was driving in the scope of his duties, because no evidence supported it.  Generally an employee is not acting within the scope of his duties when driving his personal vehicle to and from work.  The exceptions are where the employee is using his personal vehicle for work purposes, and where the employee's use of his personal vehicle provides his employer with a benefit.  Here, while the driver occasionally used his personal vehicle for work purposes, he did not have to do so that day. He did not have any emergency situations that required him to have a vehicle available. There was no evidence that he was required to drive to and from work on the day of the accident for work purposes.  Driving to and from work was not driving within the scope of his employment.

The court split on whether the case should be remanded to determine whether the driver's use of his vehicle benefited the county.  The majority ruled no remand was necessary.  There was no evidence that the county received a benefit from the driver's use of his car to drive to and from work on a day when he did not need his vehicle available for work purposes.  A dissenting justice opined that the benefit issue should go to the jury.

Officers Entitled to Qualified Immunity for Using Lethal Force against Erratically-Behaving Suspect Who Charges Them with Stabbing Weapon

In Vos v. City of Newport Beach, pubilshed June 11, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted to a city and two of its police officers in a police shooting case. Because the undersigned's firm represented the defendants in the case, the undersigned will refer readers to the text of the case rather than summarizing the holding.

Public Colleges and Universities Owe Students a Duty to Protect Them from Foreseeable Violence during Curricular Activities

In Regents of University of California v. Superior Court (Rosen), published March 22, 2018, the California Supreme Court reversed the lower appellate court's decision that UCLA owed no duty to a student to warn her of or protect her from another student's attack.  The school was aware that the student who ultimately attacked the plaintiff was experiencing auditory hallucinations and was showing symptoms of paranoid schizophrenia, including shoving one student.  The school attempted to provide the assailant with mental health care, and evicted him from student housing after he shoved the other student.  While in a school chemistry lab doing schoolwork, the assailant unexpectedly stabbed the plaintiff with a kitchen knife.  

The Supreme Court concluded that because of the relationship between colleges and their students--particularly the vulnerability of students to attacks from fellow students, and the schools' superior knowledge of threats--public colleges and universities are in a special relationship with their students, which imposes a duty of care to take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety--including foreseeable violence--during curricular activities.  The various policy considerations of duty analysis support the existence of that duty.  Foreseeability and reasonable care will vary under the circumstances of each case.  The Supreme Court remanded the case to the court of appeal to decide whether triable issues of material fact remain on the questions of breach of duty and immunity.  In a concurring opinion, Justice Corrigan opined that because the attack occurred in a classroom, there was no need to consider whether colleges owed a duty to students involved in curricular activities outside the classroom.

Equity Prevents Claim Preclusion Where Earlier Judgment against Plaintiff Was Based on Federal Court Decision from Same Facts That Was Overturned on En Banc Review

In F.E.V. v. City of Anaheim, published September 19, 2017, the Fourth District Court of Appeal, Division 3 reversed the dismissal on demurrer of a wrongful death case arising out of a police shooting.  The plaintiffs brought federal and state causes of action against the police and city in federal court.  The federal district court granted summary judgment on the federal claims, ruling that the officers did not use excessive force and did not violate the Fourth Amendment.  It dismissed the state law causes of action without prejudice. The plaintiffs appealed that decision to the 9th Circuit. The plaintiffs then filed a state court action based on their state law claims, including negligence, battery, and violation of the Bane Act.  The trial court sustained a demurrer against the state court action and dismissed it, on the grounds that the federal decision had claim preclusion effect on the state law claims. The plaintiffs appealed the state court dismissal.  Before the state court appeal was decided, the 9th Circuit affirmed the federal district court decision.  The state appellate court ruled that the federal decision collaterally estopped the plaintiffs from pursuing their state law claims.  Months later, the 9th Circuit issued an en banc review decision reversing the panel decision in the federal case as to the claims of excessive force.  Plaintiffs then filed a new state court complaint, re-asserting their state law causes of action.  The state court denied a motion to vacate the earlier state court decision.  The appellate court denied a writ petition challenging that ruling.  The defendants demurred on the ground of collateral estoppel.  The trial court sustained the demurrer and dismissed the second state case.

The appellate court concluded that claim preclusion based on the earlier state court decision would apply, if equity permitted.  But under the unusual circumstances, equity did not permit claims preclusion to bar the plaintiffs from litigating their state law claims, since the earlier judgment was based on a federal ruling that was ultimately reversed.

Split of Authority on Proof Necessary for Police Pursuit Immunity

*******************Update:  See August 13, 2018 California Supreme Court Opinion affirming Ramirez.********

 

In Ramirez v. City of Gardena, published August 23, 2017, the Second District Court of Appeal, Division 1, affirmed summary judgment in favor of the defendant city.  The plaintiff's decedent was fatally injured in a PIT maneuver during a high-speed chase.  The plaintiff sued the city police for negligence and battery.  The trial court found disputed issues of fact that prevented summary judgment on whether the ramming officer's actions in using the PIT maneuver were reasonable.  But the trial court granted summary judgment based on Vehicle Code section 17004.7.  Under section 17004.7, if a public agency employing peace officers adopts and promulgates a written policy on vehicular pursuits that meets the statute's criteria, and provides regular training on pursuits, the agency is immune from liability from the collision of a vehicle being operated by a suspect pursued by the agency's peace officer.  Subdivision (b)(3) sets forth the requirements for promulgating the policy.  Promulgation must include a requirement that all of the agency's peace officers certify in writing that they have received, read, and understand the policy.  The subdivision provides that the failure of an individual officer to sign a certification shall not be used to impose liability on an officer or agency.  Citing Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144, the plaintiff contended that the CIty could only obtain summary judgment under section 17004.7's immunity by proving that each of its officers signed the certification described in the statute. The plaintiff also contended that the city's pursuit policy did not meet the statutory requirements.

The appellate court rejected both arguments.  It disagreed with the Morgan decision, and held that the statute does not require proof that every agency officer certified in writing that he or she received, read, and understood the policy.  That interpretation is inconsistent with the statutory provision that a single officer's failure to certify shall not be the basis for imposing liability.  If the immunity does not apply, liability is imposed.  The court therefore interpreted "promulgation" in the statute to mean that, to obtain immunity, the agency must require its officers to certify in writing that they have received, read, and understood the agency's pursuit policy.  If the agency imposes the requirement, complete compliance with the requirement by the officers is not a prerequisite for immunity to apply.  There was no dispute that the city required its officers to sign the required certification.  The appellate court also ruled that the policy met the statutory requirements.  Unlike other policies found lacking because they deferred too much to officer discretion, the policy included specific guidance on the circumstances in which a pursuit is appropriate, and the factors to consider in deciding whether to continue or terminate a pursuit.

Trail Immunity Applies to Golf Balls Striking Pedestrians on Path Next to Golf Course

In Leyva v. Crockett & Co.,ordered published January 25, 2017, the Fourth District Court of Appeal, Division 1, affirmed summary judgment in favor of a golf course sued when a pedestrian walking along a public unpaved hiking and equestrian trail, located near the 13th hole and separated from the course by a six-foot-high chain link fence and a line of trees, was struck by a golf ball and injured.  The golf course was the grantor of an easement along which the trail ran.  The trial court ruled that the trail immunity in Government Code section 831.4 (which protects grantors of public easement) immunized the course owner from liability.

The appellate court agreed.  The plaintiff contended that the lack of a higher barrier, rather than the location of the trail next to the golf course, caused the injury, and that the lack of barrier was not a condition of the trail or a faulty design.  The court concluded that the plaintiff would not have been struck unless the trail was located next to the 13th hole; and it did not matter whether the location or lack of safety barrier caused the accident because the effect was the same.

Minor Student Need Not Present Claim to Sue School District for Negligently Failing to Prevent Fellow Students from Sexually Harassing Her

In A.M. v. Ventura Unified School District, published October 12, 2016, the Second District Court of Appeal reversed summary judgment granted to the defendant school district.  The plaintiff alleged that when she was a second grade student, fellow students sexually abused her.  She sued the school district, alleging negligent failure to prevent the sexual abuse.  She did not present a claim to the school district.  She relied on Government Code section 905, subdivision (m), which excludes from the claim-presentation requirement claims for childhood sexual abuse under Code of Civil Procedure section 340.1.  The trial court concluded that section 340.1 did not apply to the plaintiff's allegations, and that it applied only to sexual abuse by an employee, volunteer, representative, or agent of the defendant.

The appellate court rejected the trial court's reasoning.  Government Code section 905, subdivision (m), exempts from the claim-presentation requirements any cause of action for childhood sexual abuse under Code of Civil Procedure section 340.1.  The court interpreted section 340.1 as applying to sexual abuse of a child by fellow children.  The language about sexual abuse by an employee, volunteer, etc. was set forth in an exception to the statute of limitations in section 340.1, which generally cut off suits after the plaintiff's 26th birthday.  Since the plaintiff was under 26, the exception was not at issue.  The court rejected the plaintiff's argument that section 340.1 applied only to suits by adults for childhood sexual abuse.  It further ruled that because the plaintiff's allegations fell under one of the Penal Code sections described in section 340.1's definition of sexual abuse, the plaintiff had alleged that she suffered sexual abuse and section 340.1 applied.  The plaintiff therefore did not have to present a claim to the District before suing it for alleged negligence in allowing the abuse to occur.