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  Although the statute of limitations was tolled while the plaintiff was a minor, the trial court relied on the unpublished California Supreme Court decision in Ganahl I, which included the date the minor plaintiff in that case reached the age of majority in calculating when the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

Government Code Hazardous Recreational Immunity Applies to Liability from Hazardous Activities, even if Liability Is Not Related to Property

In Haytasingh v. City of San Diego, published July 9, 2021, the Fourth District Court of Appeal, Division 1 affirmed in part and reversed in part a decision for the defendant city in a personal injury case.  One of the plaintiffs was surfing.  A city lifeguard was operating a city-owned personal watercraft on city business.  Although the parties’ versions of the accident differed, the plaintiffs alleged the lifeguard was operating the watercraft inside the surfline, parallel to the surfer plaintiff, and made a left turn in front of him.  To avoid a collision, the surfer plaintiff dove off his board and struck his head on the ocean floor, sustaining serious injuries.  He and his wife sued the city and the employee.  The trial court granted summary adjudication of the plaintiffs’ cause of action, ruling that Government Code section 831.7’s immunity for public entities and employees from liability for injuries that arise out of hazardous recreational activities (which the statute defines to include surfing) applied.  The plaintiffs amended their complaint to allege two exceptions to section 831.7:  gross negligence; and failure to warn of another hazardous recreational activity.  The case proceeded to trial.  At trial, the court declined to give the plaintiffs’ requested jury instruction that city lifeguards were required to comply with the basic speed law set forth in Harbors and Navigation Code section 655.2.  Section 655.2 limits the speed of vessels operated within 100 feet of bathers to five miles per hour, unless the vehicle is engaged in law enforcement and displaying the required lights (which the lifeguard’s watercraft was not).  The jury found for the defendants.

The appellate court affirmed the summary adjudication of the negligence cause of action.  It rejected the plaintiffs’ contention that Government Code section 831.7, like the statute it was purportedly designed to mirror, Civil Code section 846, was limited to premises liability.  Unlike the language of section 846, which focuses on premises, the broad language of section 831.7 focuses on the hazardous recreational activity itself, by negating any liability for injuries arising out of that activity.  Because surfing is one of the activities listed in the statute as a hazardous recreational activity, the plain language of the statute established it applied.  But the court also ruled that the trial court erred in concluding that the application of Harbors and Navigation Code section 655.2 was preempted by a municipal code ordinance, which limited speed to five miles per hour but exempted governmental employees from the speed limit.  Although section 655.2 provides that it applies if the area is not otherwise regulated by local rules and regulations, and section 660 allows local governmental entities to adopt additional regulations if they do not conflict with the Harbors and Navigation Code, the court ruled that the municipal code section did conflict with the Code.  The court further concluded that the instructional error was prejudicial.

Employee Excused from Exhausting Administrative Remedies if Official Who Has Animosity toward Employee and Who Is Central to Controversy Will Be a Decisionmaker

In  Briley v. City of West Covina, published July 1, 2021, the Second District Court of Appeal, Division 4 affirmed in part and reversed in part a judgment after jury trial in favor of the plaintiff in an employment retaliation case.  The plaintiff was a deputy fire Marshal.  He complained  to the city that various city officials had ignored his reports of misconduct, and had engaged in misconduct.  The officials included the Fire Marshal, the plaintiff’s then direct supervisor.  After making those allegations, the plaintiff additionally complained that the Marshal and others had retaliated against him.  He also filed grievances with the city’s HR commission, raising the retaliation claims.  The Marshal later testified at a deposition that his working relationship with the plaintiff had become strained, that the plaintiff had tried to undermine his authority, and that the plaintiff had tried to intimidate him.  While the investigation of the plaintiff’s claims was pending, the Marshal informed the city manager of multiple complaints against the plaintiff involving allegations of misconduct and unprofessional behavior.  The Marshal, who had been elevated to Fire Chief, issued the plaintiff a notice of intent to terminate.  A pre-termination hearing upheld the termination.  The plaintiff began an appeal to the city’s HR commission.  The ultimate decision makers following the commission’s review would have been the Fire Chief, as the original decisionmaker, and the city manager.  The plaintiff ceased pursuing his appeal, notifying the commission that doing so would be futile.  The plaintiff brought this lawsuit.  The trial court concluded that the plaintiff was excused from pursuing an appeal to exhaust his administrative remedies.  The plaintiff obtained a jury verdict against the city under Labor Code section 1102.5 (retaliation for whistleblowing).  The jury awarded him over $500,000 in economic damages, $2 million in past noneconomic damages, and $1.5 million in future noneconomic damages.

 

The appellate court affirmed the portion of the verdict holding the city liable.  The appellate court rejected the city’s argument that the plaintiff had failed to exhaust his administrative remedies.  A party must generally exhaust all available nonduplicative administrative review procedures before resorting to the courts.  This doctrine is subject to several exceptions.  Exhaustion is excused if the relevant administrative procedure fails to satisfy the standards of due process.  Due process entitles a person seeking administrative review to a reasonably impartial, noninvolved reviewer.  The Marshal/Chief’s expected role in deciding the plaintiff’s administrative appeal presented an unacceptable risk of bias that excused the plaintiff from exhausting the remedy.  A conflict between the employee and supervisor alone will not disqualify the superior from serving as a decisionmaker.  Nor must a decisionmaker be completely insulated from any matter relevant to the proceeding.  But under due process, an official whose prior dealings with the employee have created substantial animosity, and whose own character and conduct are central to the proceeding, may not serve as a decisionmaker.

 

The appellate court concluded, however, that the damages awarded were excessive.  The court offered the plaintiff a choice of a remittitur or a new trial on damages.

A Section 1983 Action for a Taking Does Not Require Exhaustion of Administrative Procedures to Be Final

In Pakdel v. City and County of San Francisco, published June 28, 2021, the U.S.U.S. Supreme Court, per curiam vacated and remanded a 9th Circuit decision.  Plaintiffs challenged a city requirement that they offer a tenant in a tenancy-in-common a lifetime lease as a condition of converting to condominium ownership.  The city refused to exempt them from the requirement or compensate them for the lease.  They sued, alleging the lease requirement was an unconstitutional taking.  The district court ruled that the plaintiffs had to seek compensation through state law procedures before seeking compensation under federal law.  While their appeal was pending, the Supreme Court decided Knick v. Township of Scott, which repudiated the requirement that a plaintiff must seek compensation in state court.  The 9th Circuit nevertheless affirmed dismissal.  It ruled that Knick left untouched the requirement that plaintiffs may challenge only final government decisions.  The 9th Circuit concluded that the regulatory takings claim remained unripe because the plaintiffs had made a belated request for an exemption at the end of the administrative process instead of timely seeking one through the prescribed procedures.

The Supreme Court held that the 9th Circuit misapplied the finality requirement.  Nothing more than de facto finality is necessary.  Once the government has committed to a position, the dispute is ripe for judicial resolution.  The 9th Circuit's demand that a plaintiff seek exemption through the prescribed state procedures is an exhaustion requirement.  Exhaustion is not a prerequisite for a section 1983 takings claim when the government has reached a conclusive position.  Administrative missteps do not defeat ripeness once the government has adopted its final position.  Because the city twice denied the plaintiffs' requests for an exemption or compensation, the city's decision was final and ripe.

Court Must Analyze Facts and Circumstance to Determine Whether Officers Used Unconstitutional Amount of Force

In Lombardo v. City of St. Louis, published June 28, 2021, the U.S. Supreme Court, in a split per curiam opinion, reversed and remanded a summary judgment granted in favor of police officers.  The plaintiffs' decedent was arrested for trespassing and failure to appear in court for a traffic ticket.  While he was in jail, the decedent put a piece of clothing around his neck and tied it to the bars of his cell.  Multiple officers entered his cell. The decedent resisted. The officers handcuffed the decedent and put him in leg irons.  They moved him into a prone position, and an officer placed pressure on the decedent's back and torso.  After 15 minutes of struggling in this position, the decedent expired.  The decedents parents sued the police officers under 42 U.S.C. section 1983.  The district court granted summary judgment on the ground of qualified immunity.  The circuit court affirmed on the ground that the officers did not apply unconstitutionally excessive force.

The majority reversed the circuit court decision.  In assessing whether officers used excessive force, a court asks whether the offices' actions are objectively reasonable in light of the facts and circumstances confronting them.  Courts cannot apply the standards mechanically.  It requires careful attention to the facts and circumstances of each particular case.  Circumstances include the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.  The majority ruled that it was unclear whether the circuit court thought the use of a prone restraint is per se constitutional so long as an individual appears to resist officers' efforts to subdue him, no matter the kind, intensity, duration, or surrounding circumstances.  Factors such as the agency instructing its officers that pressing down on the back of a prone suspect can cause suffocation, and police guidance to get a subject off his stomach as soon as handcuffed to avoid suffocation and that struggles may be due to oxygen deficiency rather than desire to disobey officer commands, may be pertinent, along with the duration of the restrain and the fact the decedent was shackled.  The court expressed no view on whether the use of force was excessive or whether the officers were entitled to qualified immunity, but remanded the summary judgment to the circuit court.

Three justices dissented, opining the court should either deny review, or grant review and have the matter briefed and argued before deciding it.  

Student's Profane Social Media Post Complaining about School Protected by First Amendment

In Mahoney Area School District v. B.L., published June 23, 2021, the U.S. Supreme Court, ruling 8-1, affirmed a circuit court decision that the defendant school district's discipline of the plaintiff violated the First Amendment.  The plaintiff was denied a position on her high school's varsity cheerleading squad and the right fielder position on a private softball team.  While off-campus, the plaintiff posted on Snapchat (a social media app that allows users to post photos to friends that disappear after a set period) a photo with her and a friend posing with middle fingers extended.  The caption read:  "F__ school f___ softball f___ cheer f___ everything."  She also posted a blank image with a caption complaining about the cheerleading situation.  A friend took a picture of the post and shared it with other members of the cheerleading squad.  The photos eventually came to the attention of cheerleading coaches.  The coaches and the principal concluded that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules.  The coaches suspended the plaintiff from the junior varsity cheerleading squad for the upcoming year.  The plaintiff sued the district, contending that the discipline violated her First Amendment rights.  The district court found in the plaintiff's favor, and the circuit court affirmed.

The Supreme Court majority ruled that the conduct was protected by the First Amendment.  Past Supreme Court cases have outlined the protection for student speech on campus.  The special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates off-campus speech.  The court declined to set forth a broad First Amendment rule stating what counts as "off campus" speech, or whether or how First Amendment standards must give way off campus to a school's special need to prevent substantial disruption of learning-related activities or protection of the school community.  But three features of off-campus speech often distinguish schools' efforts to regulate that speech from on-campus speech:  the school will rarely stand in loco parentis in relation to off-campus speech; regulation of off-campus and on-campus speech would mean regulation 24 hours a day (so schools must meet a heavy burden when regulating off-campus religious or political speech); and the school has an interest in protecting a student's unpopular expression, especially off-campus, so that future generations understand the "marketplace of ideas."  These features of off-campus speech diminish the leeway the First Amendment grants to schools in light of their special characteristics.  Here, the plaintiff's speech did not involve features that would put it outside First Amendment protections.  The posts did not amount to fighting words, and while crude, they were not obscene.  If an adult spoke such words, she would receive strong First Amendment protection.  The student posted off-campus, during non-school hours, did not identify the school, and did not target any member of the school committee.  The means of posting diminished the school's interests in regulation. There was no record that the posts had the sort of substantial disruption of school activity, or threatened harm  rights of others, that might justify the school's actions.

Justice Thomas dissented.  He opined that precedent supported the coaches' actions in disciplining off-campus speech.

Time to File Suit in State Court Is Tolled While Federal Action Is Pending, Through Mandate Issued in Appeal of Right

In Sales v. City of Tustin, published June 8, 2021, the Fourth District Court of Appeal, Division 3 reversed summary judgment in favor of the defendant city, granted based on the statute of limitations.  Plaintiff alleges her decedent fled an improper detention, was chased into traffic, and was killed.  On the last day to file a lawsuit under California law (six months after her claim was denied), the plaintiff filed a suit in federal court alleging federal and state causes of action.  The district court denied a defense summary judgment motion based on qualified immunity.  The defendants took an interlocutory appeal to the 9th Circuit.  That court reversed the denial of summary judgment.  On remand, the district court concluded that the appellate ruling resolved all of the federal claims in favor of the defendants, and entered judgment on those claims.  The court declined supplemental jurisdiction over the state law claims, and dismissed them.  That occurred in 2016.  The plaintiff appealed the result to the 9th Circuit.  The 9th Circuit affirmed the decision.  The court then denied a rehearing en banc.  The court issued its mandate on December 5, 2018.  The plaintiff refiled her state law causes of action in state court on December 19, 2018.  The trial court granted the defendants summary judgment on the ground that under 28 U.S.C. section 1367, the plaintiff's time to file her state court claim was tolled only until the district court dismissed the state law claims in 2016.

The appellate court concluded that the trial court interpreted section 1367 incorrectly.  Section 1367 governs supplemental jurisdiction over state law claims in federal court.  Subdivision (d) provides that the period of limitations for any state claim joined with federal claims shall be tolled while the claim is pending in federal court, and for a period of 30 days after it is dismissed.  The appellate court joined the majority of courts to extend the tolling deadline through the pendency of an appeal of right, through the mandate returning the appeal to the district court, and then for 30 days after the mandate.  That the appeal addressed only the dismissal of the federal claims, and not the state claims, did not matter; if the federal court had reversed judgment on the federal claims, the district court might have reasserted jurisdiction over the state law claims.

Government Code Section 821.6 Immunizes Officers for Failing to Cover Partially Nude Decedent During Investigation

 

****Update:  On August 18, 2021, the California Supreme Court granted review of this decision.  The order granting review specified that the lower court decision could continue to be cited for its persuasive authority.****

In Leon v. County of Riverside, published May 27, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant county and deputies in a lawsuit alleging negligent infliction of emotional distress.  The plaintiff's husband was shot by a neighbor.  When a deputy arrived on the scene, he believed the decedent to be dead, but began rendering aid.  Shots rang out from neighboring property.  The deputy evacuated the area, forcing the plaintiff to leave.  When a second deputy arrived, the first deputy moved an SUV between the body and the source of the shots, and the second dragged the decedent behind the SUV.  As he did, the decedent's pants were pulled down, exposing his genitals.  The second deputy attempted chest compressions and announced the decedent dead.  More deputies and officers arrived, and nearly four hours after the first deputy arrived the shooter was found dead of a self-inflicted wound.  The body remained with its genitals exposed for approximately another four hours, when the coroner finished processing the body and collecting evidence.  The first deputy and lead investigator testified that they did not know why the body was not covered after the shooter was found dead.  The trial court granted summary judgment based on the immunities set forth in Government Code sections 815.2(b) and 821.6

The appellate court agreed that the statutes applied.  As interpreted by multiple appellate court opinions, Government Code section 821.6 immunizes the deputies from liability for any negligence in leaving the decedent's body exposed.  Section 821.6 immunizes public employees from liability for any injury-causing act or omission in the course of an investigation that may precede the institution and prosecution of a judicial or administrative proceeding.  In light of the investigation of the body, and statutory law barring moving a decedent, the acts for which the deputies were sued were part of their investigation.  Any negligence in leaving the body uncovered when it might have been uncovered is subject to the immunity.  Under Government Code section 815.2(b), the county cannot be held liable for the deputies' acts where the deputies are immune.  Government Code section 815 immunizes the county from any direct liability for negligence, because there is no statutory basis for that negligence.  Catsouras v. Department of California Highway Patrol was distinguishable, because the court in that case found that sharing photos of a decedent's remains was not part of official police business.  The court rejected an argument that the case law applying section 821.6 to investigations was wrongly decided, finding support for the statute in pre-Government Claims Act common law.

A concurring justice noted that the California Supreme Court had apparently interpreted section 821.6 to apply only to malicious prosecution, and that federal courts had followed that line of authority.  The justice agreed with the majority, however, that the lower courts had interpreted section 821.6 to apply to torts other than malicious prosecution.

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.

Prison Officer Did Not Violate Clearly-Established Law by Listening in on Portions of Prisoners' Phone Conversations with Civil Attorneys

In Witherow v. Baker, published May 18, 2021, a divided 9th Circuit panel affirmed summary judgment for a prison officer in a suit under 42 U.S.C. section 1983 alleging violation of a prisoner's Fourth Amendment rights.  The prison unit the plaintiff was in did not allow prisoners to use wall phones.  The unit had a single portable phone, and each prisoner's use was limited to 20 minutes.  The phone did not have caller ID.  The officer would use a speaker and a flip switch to monitor the beginning of the call, to check whether the call was to an attorney or an attorney's office.  The officer would then stop listening.  Later in the call, the officer would check again, to see whether the prisoner had called someone else, and to make sure the prisoner was not depriving others of the phone by making unauthorized calls.  The district court granted the officer summary judgment, based on qualified immunity, on the grounds that she had not violated the plaintiff's Fourth Amendment rights, and that if she had violated any such right, the right was not clearly established

The panel majority ruled that the officer was entitled to qualified immunity on the second prong:  the right was not clearly established.  The plaintiff failed to identify any binding authority, or a consensus of law, that a prison officer listening in on a prisoner's phone call with a civil attorney violated the prisoner's Fourth Amendment rights.  The majority further concluded that there was no need to address whether the officer's actions had violated the Fourth Amendment, because the situation was fact bound (involving technology from 2007-2008); it was unclear whether violation of the attorney-client privilege would involve the Fourth Amendment; and prisoners can challenge similar practices by bringing suits for declaratory and injunctive relief.

A judge wrote an opinion concurring in part and dissenting in part.  The judge opined that the panel should address whether the conduct violated the Fourth Amendment, to develop the law on that subject.