Government Liability Update

The "Committee Exception" to the Brown Act Does Not Apply to Special Meetings

In Preven v. City of Los Angeles, published March 4, 2019, the Second District Court of Appeal, Division 1 revsrsed a trial court order dismissing after demurrer a writ petition and declaratory relief action brought to enforce the Brown Act.  During the public comment portion of an open committee meeting concerning a proposed real estate development near the petitioner's residence, the petitioner made a comment.  The committee, which consisted of five members of the fifteen-member city council, voted to make a report and recommendation to the full council.  The next day, a special meeting of the city council was held to decide whether to approve the committee's recommendation on the development.  The petitioner attended the meeting, and requested the opportunity to comment on the development.  His request was denied on the ground that he had the opportunity to comment on the agenda item at the committee meeting.  The trial court sustained the city's demurrer on the ground that the "committee exception" applies to both regular and special meetings.  The "committee exception" provides that a legislative body does not need to provide an opportunity for public comment at a regular meeting on any item that has already been considered by a committee made up exclusively of members of the body wherein all interested members of the public were permitted to comment on the item before or during the committee's consideration of the item.

The appellate court ruled that the trial court had misinterpreted the Brown Act.  Government Code section 54954.3(a)'s plain language applies the committee exception to regular meetings, and not special meetings.  The statute requires public comment on any item described in the notice for the meeting before or during consideration of the item.  The city argued that the petitioner was permitted to address the item at the committee meeting, which was "before" the full council considered the item. The appellate court reviewed the legislative history of the statute, and concluded that the "before" term concerns timing of comments within a particular meeting.  It does not restrict comments based on a prior distinct meeting.

Eighth Amendment Limitation on "Excessive Fines" Applies to Civil Forfeitures under State Law

In Timbs v. Indiana, published February 20, 2019, a unanimous U.S. Supreme Court reversed an Indiana Supreme Court ruling on a civil forfeiture related to a criminal conviction.  The petitioner pleaded guilty to heroin dealing and conspiracy to commit theft.  The state limit on the fine for the offenses was $10,000.  The state sought civil forfeiture of the petitioner's $42,000 vehicle--which he purchased with proceeds from his father's life insurance policy--on the ground that it was used to transport heroin.  The petitioner challenged the forfeiture on the ground that it amounted to an excessive fine.  The state supreme court ruled that the Eighth Amendment limit on excessive fines did not apply to state law civil forfeitures.

The Supreme Court unanimously ruled that under the Fourteenth Amendment, the limit on excessive fines applies to civil forfeitures under state law.  The majority ruled that the Eighth Amendment was incorporated into the Fourteenth Amendment's due process clause under both tests for incorporation:  The protection was fundamental to the nation's scheme of ordered liberty; and it was deeply rooted in the nation's history and traditions.  The state argued that the clause does not apply to civil in rem forfeitures.  But Austin v. United States held that the clause applied to in rem forfeitures under federal law.  When a Bill of Rights protection is incorporated into the Fourteenth Amendment, the protection applies identically to both the Federal Government and the states.  The Supreme Court declined to overrule Austin.  The state also argued that whether the protection applied to civil in rem forfeitures was not fundamental or deeply rooted in the nation's history or traditions. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, the court ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.

Two concurring justices opined that the excessive fines protection was incorporated into the Fourteenth Amendment's Privileges or Immunities Clause, rather than its due process clause.

Statutory Bar on Public Employee Indemnification of Public Employer Did Not Bar Employees' Insurer from Contributing to Employer's Insurer's Settlement of Lawsuit

In Westport Insurance v. California Casualty Management, published February 20, 2019, the 9th Circuit affirmed a district court's summary judgment entered on behalf of plaintiff Westport Insurance Corporation against defendant California Casualty Management Company in a diversity insurance contribution case decided under California law.  Three students of a school district sued the district and three of its administrators for failing to prevent a teacher from molesting them over various periods in the 1990s.  Westport, through a predecessor company, issued primary general liability insurance policies to the district  during the 1990s.  It also issued a series of annual excess policies covering the district and its employees during part of the same period.  During the same period, California Casualty issued successive annual liability policies to the Association of California School Administrators, providing excess liability coverage to the administrators who were sued.  Westport settled the three lawsuits for $15.8 million.  California Casualty refused to contribute to the settlement.  On cross-motions for summary judgment, the district court awarded Westport $2.6 million in contribution from California Casualty, along with $755,637.20 in prejudgment interest.

The 9th Circuit rejected California Casualty's argument that Government Code section 825.4 barred Westport's lawsuit.  Section 825.4 provides that (with exceptions that did not apply here) a public entity pays a claim or judgment against itself or a public employee, for an injury arising out of the employee's act or omission, the employee is not liable to indemnify the public entity.  Reviewing California law on the subject, the court concluded that no policy concern prevented California Casualty from indemnifying Westport. Case law holds that contribution from an employee's insurer is not wholly inconsistent with section 825.4. No employee personally contributed to the settlement costs.  The district provided primary insurance to both itself and its employees through Westport.  And California Casualty's coverage was limited to claims arising out of employment.  The 9th Circuit also upheld the district court's decisions concerning policy interpretation, the amount of contribution, and the date prejudgment interest began running.

Anti-SLAPP Special Motion to Strike Not Available Where Communications That Form Basis of Vendor Suit Do Not Involve Matters Pending Before a Legislative Body or in Connection with a Public Issue

In Rand Resources, LLC v. City of Carson, published February 4, 2019, the California Supreme Court affirmed in part and reversed in part a lower appellate court's ruling on anti-SLAPP special motions to strike.  The plaintiff allegedly entered into an exclusive contract with the defendant city to act as the city's exclusive agent in negotiating with the NFL to build a home stadium in the city for an NFL team.  The plaintiff alleged that while it was representing the city, the city stopped complying with the agreement, and worked with another defendant vendor to act as the city's agents in NFL negotiations.  The plaintiff further alleged that before the plaintiff signed the agreement with the city, the city attorney told the plaintiff that the two-year contract would be extended; but when the plaintiff sought an extension, the city council voted to deny the extension.  The plaintiff sued the city for breach of contract and promissory fraud; sued the city, mayor, and the other vendor for fraud; and sued the other vendor for intentional interference with contract and intentional interference with prospective economic advantage.  The defendants made special motions to strike the causes the action, which the trial court granted.  The appellate court reversed, concluding the causes of action did not arise from conduct protected by anti-SLAPP.

The Supreme Court concluded that the causes of action against the city were not protected by anti-SLAPP.  The crux of those claims is that the defendants allegedly concealed and lied about the city's alleged breach of its exclusivity provision.  These were not protected communications under subdivision (e)(2) or (e)(4) of Code of Civil Procedure section 425.16.  To meet (e)(2)'s definition of protected conduct--written or oral statements or writings made in connection with an issue under consideration or review by a legislative body--the defendant's acts that form the basis of the claim must be statements in connection with an issue being considered by the legislative body (here, the city council) at the time the statements are made.  Alleged lies about whether the other vendor was representing the city in NFL negotiations were not connected with any issue which was before the city council at that time.  Subdivision (e)(4)--conduct in furtherance of the exercise of free speech in connection with a public issue or an issue of public interest--also was not satisfied.  Although the building of the stadium was an issue of public interest, the alleged conversations on who should represent the city in NFL negotiations did not.  The same considerations apply to the city attorney's alleged promises.  Since they were not made when the agreement renewal was pending before the city council, they were not made in connection with an issue that was then under review by the city council.  And the issue of whether the agreement with a vendor would be renewed was not in connection with a public issue or issue of public interest.

The court also concluded, however, that the tortious interference causes of action against the other vendor did involve protected conduct.  They were based on the other vendor's communications with the NFL on the stadium issue (an issue of public interest), and were made in connection with the issue of the agreement with plaintiff that was at that time before the city council.

 

Officer Entitled to Qualified Immunity for Failure to Prevent Arrestee's Suicide Attempt in Cell, but Is Not Entitled to Summary Judgment on State Law Claim

In Horton v. City of Santa Maria, published February 1, 2019, a divided 9th Circuit panel affirmed in part and reversed in part a district court order denying summary judgment to a police officer and his city employer in a case brought under 42 U.S.C. section 1983 and California Government Code section 845.6.  The plaintiff was arrested after slashing the tires of a vehicle his girlfriend was riding in.  He admitted to hitting the girlfriend in the past. While in the holding cell at the police station, he told the defendant officer of various troubles in his life, and that he was nervous being in a cell, but twice denied needing medical care.  Another officer referred to the possibility of a psych consult for the plaintiff.  The plaintiff's mother talked to him on the phone.  The officer then spoke to the mother on the phone for about 15 minutes.  The mother told the officer the son had engaged in self-harm and suicidal ideation.  While the officer talked with the mother, the plaintiff undid his belt, looped it through the bars, and hanged himself.  The plaintiff was left alone for a half hour, during which he developed brain damage from the hanging.  The district court denied summary judgment to the officer and the city on the federal and state claims.

The 9th Circuit panel unanimously reversed denial of summary judgment as to the section 1983 claim against the officer.  Because insufficient case law established that the officer's actions amounted to deliberate indifference under the then-prevailing Fourteenth Amendment standard for denial of medical care to pretrial detainees, any Fourteenth Amendment violation was not clearly established.  The officer was therefore entitled to qualified immunity. The court also unanimously ruled that it lacked jurisdiction over the denial of summary judgment to the city on the Monell claim.  While denial of summary judgment based on qualified immunity is immediately appealable, denial of summary judgment to a municipal defendant may be appealed only if reversal on the qualified immunity issue as to the individual will also lead to reversal for the municipality.  That standard was not met here, because the municipality could be held liable even if the officer was entitled to qualified immunity due to lack of clearly-established law.

The majority held that the district court also properly denied summary judgment on the state law claim.  Under the facts, the majority found triable issues of fact on whether the information the defendant officer had showed that the plaintiff required immediate medical care to prevent his suicide attempt.  The dissenting judge argued that there was no evidence that the plaintiff required immediate medical care, or that immediate medical care would have prevented the suicide attempt or injury.  The dissenting judge further criticized the majority for following 9th Circuit case law interpreting Government Code section 845.6 whcih the California appellate courts subsequently criticized.

Exigent Circumstances of Inmate Disturbances and Lockdowns Justified Denying Jail Inmate Bed

In Olivier v. Baca, published January 11, 2019, the 9th Circuit affirmed summary judgment granted to a former county sheriff, in his official and individual capacities, in a suit filed by a jail inmate under 42 U.S.C. section 1983.  While the inmate was being processed at the county Inmate Reception Center, a series of inmate disturbances and lockdowns occurred throughout the county jail system.  As a result, the plaintiff was not transferred to permanent housing for three and a half days.  During that time, although a bench was available for sleeping, the plaintiff alleged that there were too many inmates in the IRC to permit them all to sleep on the bench, and attempting to do so would have caused a fight.  The inmate therefore slept on the floor.  The plaintiff sued the former sheriff for allegedly violating his Fourteenth Amendment rights.

The 9th Circuit upheld the district court's conclusion that the former sheriff was entitled to summary judgment in his official capacity, because the plaintiff failed to show a county custom or policy that violated the plaintiff's Fourteenth Amendment rights.  It is established that disturbances by inmates and lockdowns can delay detention facility procedures and temporarily restrict rights without violating the Eighth Amendment.  The same considerations apply to Fourteenth Amendment claims by pretrial detainees.  The undisputed evidence established that keeping the IRC inmates in place during the exigent circumstances was reasonable because jail personnel had to be deployed to deal with the disturbances and lockdowns.  The jail officials' response was reasonable in scope and effective in controlling the disturbances.  The plaintiff was transferred to permanent housing after the disturbances had been controlled.  The district court also correctly granted summary judgment to the former sheriff in his individual capacity, based on qualified immunity.  The plaintiff failed to show that the law clearly established that under the exigent circumstances here, depriving an inmate of a bed violated the Fourteenth Amendment.

Under California Public Records Act, Public Entity's Right to Access Contractor's Records Does Not Give the Entity Constructive Possession of the Records

In Anderson-Barker v. Superior Court (City of Los Angeles), published January 22, 2019, the Second District Court of Appeal, Division 7 denied a petition for a writ of mandate challenging a trial court's decision denying a California Public Records Act petition. The petition sought electronically-stored data relating to vehicles that private towing companies had impounded at the direction of the Los Angeles Police Department.  The records were stored by an organization composed of the private towing companies.  By contract, the city had the right to inspect the records.  The trial court nevertheless ruled that the city had no obligation to produce the records under the CPRA because it did not possess the records.

The appellate court agreed.  Under the CPRA, an entity must produce non-exempt public records it either actually or constructively possesses.  "Constructive possession" means the right to control the records.  That means to manage, direct, or oversee the records.  The city did not direct what information was put in the records, and it had no power to modify the data in those records.  That the city could access the data did not equate to possession or control.

Post-Incarceration Plea Agreement to Time Served Bars Constitutional Challenge to Original Conviction

In Taylor v. County of Pima, published January 17, 2019, the 9th Circuit affirmed the district court's granting of a motion to dismiss a 42 U.S.C. section 1983 suit challenging the defendant's 1972 conviction on grounds of denial of due process and fair trial.  In 2012, while still incarcerated, the plaintiff advanced new evidence supporting his innocence.  The government contested the evidence, but in 2013 entered into a new plea deal with the plaintiff under which the original conviction was vacated, but the plaintiff pleaded no contest to the same counts, was sentenced to time served, and was released.  The district court ruled that Heck v. Humphrey barred the suit.

The 9th Circuit agreed.  Under Heck, a plaintiff may not pursue a section 1983 lawsuit if a judgment in the plaintiff's favor would necessarily imply a state law conviction is invalid, unless the conviction has been vacated by a state court.  Here, the 1972 conviction was vacated, so that conviction does not bar the suit.  But the 2013 plea deal was a valid conviction.  Therefore, even if the plaintiff could prove constitutional violations arising out of his 1972 conviction, he could not challenge the resulting imprisonment, because as a matter of law the 2013 conviction caused all of his prior imprisonment.

State Controller Cannot Be Held Liable under Abuse of Process for Improperly Using Discovery Product to Conduct Audit

In Yee v. Superior Court (Thrivent Financial for Lutherans), published January 8, 2019, the First District Court of Appeal, Division 2 issued a writ directing the trial court to grant a motion for judgment on the pleadings.  The State Controller's Office initiated an audit of the real party insurance company's records.  The insurance company and Controller's Office filed cross-litigation concerning the audit.  The Controller filed a motion to compel production of records from the insurer sought under discovery.  The court granted the motion, allegedly after the Controller's counsel assured the court that the the information obtained in discovery would not be used to conduct the audit.  The Controller allegedly then used the records produced to pursue the audit.  The litigation was eventually dismissed by order of an appellate court.  The insurer then sued the Controller's office for abuse of process, alleging that Controller's Office employees used the discovery information to conduct the audit, in violation of court order and protective order.

The appellate court ruled that the lawsuit was barred by Government Code section 815.  Section 815 bars nonstatutory causes of action against public entities.  The central issue was whether the Controller's Office could be held vicariously liable under Government Code section 815.2, subdivision (a).  Section 815.2 provides for public entity respondeat superior liability for the acts or omissions of employees, but only if the act or omission would have given rise to a cause of action against the employee.  Under the facts of the case, no Controller's Office employee could be held liable for abuse of process.  The abuse was using the records in the audit.  Only the State Controller's Office, not its individual employees, had the power to perform the audit.

Court May Not Deny Qualified Immunity in Excessive Force Case on Ground That Freedom from Excessive Force is Clearly Established

In City of Escondido v. Emmons, published January 7, 2019, the U.S. Supreme Court, in a per curiam opinion, reversed a 9th Circuit decision holding that excessive force claims against two officers should be sent to trial.  The officers answered a domestic abuse call.  After the officers knocked on the apartment door but were unable to persuade those inside to answer the door for a welfare check, a man exited the apartment door.  One officer told the man not to close the door.  He closed it and brushed past the officer.  The officer stopped the man, took him quickly to the ground, and handcuffed him.  He turned out not to be the suspect.  The district court held that the officer who did not participate in the use of force was entitled to summary judgment, and the other officer was entitled to summary judgment based on qualified immunity.  In an unpublished opinion, the 9th Circuit reversed as to both officers.  Because the right to be free from excessive force was clearly established, the circuit court ruled, the officers were not entitled to qualified immunity.

The Supreme Court ruled that the 9th Circuit erred as to both officers.  As to the officer who did not participate in the use of force, the reversal as to him was unexplained and puzzling.  As to the officer who used force, the circuit erred in not defining the clearly-established right with specificity.  The court should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.