Government Liability Update

Police Department and City Attorney Violated Officer's Attorney-Client Privilege, but Recusal of City Attorney's Office Not Warranted

In City of San Diego v. Superior Court (Hoover), published December 19, 2018, the Fourth District Court of Appeal, Division 1 issued a writ vacating a trial court order disqualifying a city attorney's office from defending the city in an employment lawsuit.  The real party in interest, a police detective, sued the city, her employer, alleging harassment and retaliation.  While that suit was pending, the attorney representing her in that lawsuit filed another suit against the city for another client, alleging the city failed to properly investigate a sexual assault and then covered the suit up.  An Internet news service referred to a police report that the service had obtained.  Internal Affairs investigated to determine if and how the news service had obtained a confidential police report.  IA interviewed the detective to see if she was the source of the leak. She was warned failure to answer could be treated as insubordination, punishable by termination.  She admitted accessing the report.  She was asked about her communications with her attorney.  Her union representative objected based on attorney-client privilege.  The detective started answering.  The rep again objected and advised the officer not to answer.  The investigators stopped asking about the communications.  Later that day, one of the investigators contacted the detective and told her the city attorney's office had concluded the privilege did not preclude questions about the detective's communications with her attorney as they related to the leaked police report.  She was ordered to return for a follow-up interview in eight days.  The attorney learned of the interviews, and threatened to move to disqualify the city attorney if the city asked the detective about their communications.  At the follow-up interview, the detective had an attorney provided by the police officers' association, and an attorney from the city attorney's office was present.  The detective said she learned of the second lawsuit from her attorney's group text message, and then called him on the teslphone about a different issue.  She admitted printing out the police report regarding the second case out of curiosity, and stated she then shredded it.  The investigators pressed the detective for details of what information the detective's attorney provided during their phone conversation. The deputy city attorney asked whether the second case's allegations were encompassed in the detective's case.  After the interview, the trial court granted the motion to disqualify the city attorney in the detective's harassment and retaliation action, on the grounds that the IA interview violated the attorney-client privilege and Rule 2-100 of the Professional Rules of Conduct, barring a lawyer from contacting a litigant known to be represented by counsel.

The appellate court agreed with the trial court that forcing the detective to divulge the contents of her conversation with her attorney violated the attorney-client privilege.  While the contents of the group text were not confidential communications and were not privileged, the detective's subsequent phone conversation with her attorney was protected.  The city erred by failing to apply ex parte to the court in the detective's lawsuit for a determination of whether the communications were protected by attorney-client privilege before resuming the interview and forcing the detective to speak about the attorney-client communications.  The appellate court also agreed that the Rules of Professional Conduct precluded the deputy city attorney from directly questioning the detective during the interview about matters concerning her lawsuit, without her attorney present and without that attorney's consent.  The deputy should have confined his participation in the meeting to advising the investigators.  But the appellate court, after reviewing the sealed transcript of the interview, concluded there was no reasonable likelihood that the misconduct would give the city an unfair advantage in the detective's suit.  Since attorney disqualification must be prophylactic rather than punitive, and disqualifying an entire city attorney's office should be done with caution, the disqualification order was reversed.

Jury Instruction in Sidewalk Maintenance Case to Disregard Design Elements Was Prejudicially Confusing

In Guernsey v. City of Salinas, published December 17, 2018, the Sixth District Court of Appeal reversed a judgment based on jury verdict in a pedestrian v. auto case.  A crosswalk on city property that runs across a driveway to a shopping center had faded, allegedly due to failure to maintain.  Next to the crosswalk was a strip of pink stamped concrete on private property that also ran across the driveway.  The stop sign for exiting drivers was on the pink strip instead of at the crosswalk.  Bushes next to the driveway limited drivers' vision.  The bushes were on private property.  The city had the power to order them trimmed, but did not.  An exiting driver hit the plaintiff pedestrian, seriously injuring him.  The plaintiff was in the crosswalk.  The driver considered the pink strip to be a crosswalk, and knew that there possibly had been a crosswalk where the faded lines were.  At the city's request, the court instructed the jury:  " “Plaintiffs have not alleged that the design of the Driveway created a dangerous condition. Instead, Plaintiffs have alleged that it was the City’s failure to maintain the crosswalk lines and the bushes that created a dangerous condition. [¶] To find that the Driveway presented a dangerous condition, you cannot rely on characteristics of the Driveway itself (e.g., the placement of the stop sign, the left turn pocket, and the presence of the pink cement). Although you can consider those elements of the Driveway when weighing whether or not the faded crosswalk lines and bushes created a dangerous condition, you cannot rely on those design elements of the intersection to find that a dangerous condition existed.” The court also instructed the jury that city property could be in a dangerous condition if adjacent property conditions, such as the pink strip or the stop sign location, exposed users of city property to a substantial risk of injury in conjuction with adjacent property. The jury found the driver and pedestrian at fault, but not the city.  The jury wrote on the verdict form that the city should paint the crosswalk.  The plaintiff contended that the trial court erred in giving the "design of the driveway" instruction.

 The appellate court ruled the instruction was erroneous.  The city contended that the design was subject to design immunity.  The plaintiff based the case on the failure to maintain the sidewalk.  The instruction went beyond informing the jury that the case was not based on the design.  It extended to conditions that were not on city property, and so could not be the subject of design immunity.  Telling the jury it could not "rely on" the elements of the driveway including the pink strip and bushes was legally incorrect, and conflicted with the instruction that it could consider conditions on adjacent property.  The conflict was hopelessly confusing.  The evidence, as well as the jurors' handwritten notation on the verdict form, showed that the error was prejudicial.

University Not Immune to Potential Liability for Failing to Prevent Mentally Ill Student from Attacking Fellow Student

In Regents of the University of California v. Superior Court (Rosen), published December 3, 2018, the Second District Court of Appeal, Division 7, on remand from the California Supreme Court, affirmed denial of the defendant Regents and university personnel's motion for summary judgment in a negligence case brought by a UCLA student who was stabbed in chemistry lab during a class by a fellow student.  Before the attack, the university received several indications that the attacker was having hallucinations, accused other students of insults that they did not make, and physically confronted one student.  The university moved him to a different dorm and required him to participate in counseling.  The plaintiff's experts opined that the university should have taken further action to address the disturbed student.  The university contended that it did not violate any duty of care to the injured student, and alternatively that it was immune from liability.  It challenged denial of its summary judgment motion by petitioning for writ relief.  The appellate court initially found no duty and granted the petition.  The California Supreme Court reversed, holding that universities owe a duty of reasonable care to students to protect them from foreseeable acts of violence in the classroom or during curricular activities.  It remanded the matter to the appellate court to determine the standard of care under the duty, whether triable issues of fact existed on breach of the duty, and whether the defendants were statutorily immune.

The appellate court held that the standard of care that applied was the reasonable person standard that generally applies to negligence cases, rather than the more limited standard applied to mental health professionals who fail to prevent their patients from attacking others.  The plaintiff must prove three elements to establish the university's vicarious liability under Government Code section 815.2 for its personnel's breach of the duty to protect students:  That the injury occurred while the plaintiff was engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services; that the university was aware of information that placed, or should have placed, it on notice that the perpetrator presented a foreseeable threat of violence to other students; and that the university failed to act with reasonable care in response to the foreseeable threat of violence.  The reasonable person standard of care is similar to that applied in K-12 school situations, although the degree of care may vary due to the different circumstances in a university, which deals with older students.  Based on the information the university personnel had before the attack, triable issues of fact exist on whether the student presented a foreseeable risk of violence and whether the university could have done more to prevent the attack.  The defendants are not immune under Government Code section 856, which immunizes decisions on whether to confine a person for mental illness.  The plaintiff did not contend that the university is liable for failing to confine the attacker, but rather that the school was negligent in its behavior toward the attacker, including failure to use the intervention techniques that were available to the school under its existing policies and procedures.  Discretionary immunity under Government Code section 820.2 also did not apply.  The  immunity applies only to policy and planning decisions.  The plaintiff did not challenge the school's policies and procedures, but rather how those policies were implemented.

Simultaneously Mailing Notice and Posting It upon Affected Property Satisfied both Ordinance and Due Process

In Rasooly v. City of Oakley, ordered published November 21, 2018, the First District Court of Appeal, Division 5 affirmed a Code of Civil Procedure section 1094 motion for judgment on a writ petition based on the petitioner's failure to exhaust administrative remedies.  In 2015, the city red tagged a vacant industrial building the petitioner owned.  The petitioner administratively appealed the 2015 notice to the city.  The city rejected the appeal.  The petitioner then petitioned the court for a writ of mandate to set aside the notice.  After settlement negotiations, the city agreed to rescind the 2015 notice, and the petitioner was to do required work by April 2017.  Based on this understanding, the city requested dismissal of the petition.  Despite e-mail correspondence between the city and the petitioner, the petition was not dismissed and the work was not done.  In March 2017, the city issued a new notice that the property be repaired or demolished.  The city both posted the notice on the property, and mailed it to a post office box the county tax rolls listed as the address for petitioner concerning the property.  The mailing was returned undelivered.  In April 2017, after the 20-day period for the administrative appeal of the 2017 notice passed, the city notified the petitioner's attorney of the 2017 notice.  The next day, the attorney filed an amended petition for writ of administrative mandate challenging the 2017 notice.  The petitioner contended that he did not receive actual notice of the 2017 notice, and that the service did not comply with the International Property Maintenance Code, incorporated into the city's municipal code by reference.

The appellate court agreed with the trial court that the petitioner failed to exhaust his administrative remedies by timely administratively appealing the 2017 notice.  It was undisputed that the petitioner did not receive actual notice, because he did not visit the property while the notice was posted and did not collect his mail at the specified address for at least 30 days.  The IMPC provides that notice is to be served personally, mailed by certified or first-class mail to the owner's last known address, or, if the mailed notice is returned undelivered, posting the notice on the property.  The petitioner contended that this provision required the city to first mail the notice, and then post the notice only after receiving it back undelivered.  The appellate court interpreted the provision as providing a hierarchy of preferred means of notice.  It did not forbid simultaneously posting the notice and mailing it.  Otherwise, waiting for the letter to come back undelivered would deprive property owners of the chance to file a timely administrative appeal. The service also did not violate due process.  Due process does not require actual receipt, only a means reasonably calculated to give an interested party actual notice and an opportunity to respond.

If Law Enforcement Agency Induced Family's Detrimental Reliance on Search Efforts, It Owed Duty to Carry Out Search with Due Care, but Did Not Violate the Constitution

In Arista v. County of Riverside, published November 20, 2018, the Fourth District Court of Appeal, Division 2 reversed in part and affirmed in part a trial court decision sustaining a demurrer without leave to amend and dismissing an action against the defendant county.  According to the complaint's allegations, the plaintiffs' decedent set out mountain biking one morning in light clothing.  He intended to return early that afternoon.  In the early evening, the decedent's wife contacted the decedent by cellphone.  The decedent stated that he had been injured in an accident, but was returning home.  He sounded disoriented and confused.  The wife called 911.  The operator instructed her to stay home and wait for law enforcement.  First city police, and then a sheriff's deputy came to the home.  The deputy had the cellphone company ping the decedent's phone.  The location was near the decedent's original destination on the mountain.  The company had personnel working in the area.  The deputy asked the company to have its personnel be vigilant for the decedent's location.  At 10 p.m. a sheriff's lieutenant arrived at the home.  He identified himself as the "Incident Commander" for the case.  He had no search and rescue training.  He allegedly told the deputy that he believed the decedent was having an affair, and questioned why law enforcement was involved.  The lieutenant told the wife that the sheriff's department would start the search in the morning.  When the wife asked the chances of the decedent dying of hypothermia, the lieutenant replied that the decedent was a grown man and could take care of himself.  The department had a team with all-terrain vehicles that could have been dispatched to search for the decedent, but were not.  Deputies with sedan-type vehicles were assigned to watch the trailheads.  The department allegedly told the wife not to initiate any search.  Nevertheless, the family organized itself into a search team and began searching on foot at 3:45 a.m.  In the morning, a volunteer who worked with the sheriff's department searched for the decedent, and found his body on a fire access road.  He had died of hypothermia.

The appellate court held that based on those allegations, the complaint stated causes of action against the county for wrongful death, negligence, and negligent infliction of emotional distress.  Police officers may owe a duty to provide affirmative assistance if they enter into a special relationship with a member of the public.  A special relationship may be found when the state, through its agents, voluntarily assumes a protective duty toward a member of the public and undertakes actions on behalf of that member, inducing reliance.  One who voluntarily comes to the aid of another is under a duty of due care in performance, and may be held liable in negligence if failure to exercise due care increases the risk to the person or if reliance on the undertaking causes harm.  The court concluded that the sheriff's department's alleged actions showed that they undertook the responsibility of rescuing the decedent.  They induced reliance on their actions, as shown by the allegation that the family did not undertake its own rescue efforts until the lieutenant told the wife the department would not begin searching until morning.   The appellate court affirmed, however, the demurrer as to the Monell cause of action under 42 U.S.C. section 1983.  Monell liability requires facts showing deliberate indifference.  The complaint did not plead any such facts.  Because the plaintiffs did not show how they would amend the complaint to show deliberate indifference, the trial court properly denied leave to amend as to that cause of action. 

Although Issues of Fact on Use of Force Defeat Summary Judgment on Qualified Immunity, Officer Entitled to Qualified Immunity on Issues Where Facts Are Not Genuinely Disputed

In Foster v. Hellawell, published November 20, 2018, a divided Ninth Circuit panel affirmed in part and reversed in part a district court order denying a police officer summary judgment based on qualified immunity.  A 911 call was received that a man had displayed a gun and was walking toward stores that had previously been robbed.  The defendant officer arrived at the scene and saw plaintiffs' decedent, who matched the description and was near one of the stores.  The officer identified himself and asked to see the decedent's hands.  The officer was unsure whether he had his gun drawn.  The decedent ran.  The officer gave chase.  During the pursuit, the officer fired at the decedent, fatally wounding him.  The survivors sued the officer under 42 U.S.C. § 1983 for violating the Fourth and Fourteenth Amendment. 

The Ninth Circuit majority affirmed denial of summary judgment on the claim of excessive force under the Fourth Amendment and the claim for denial of substantive due process under the Fourteenth Amendment.  The evidence created a genuine dispute of fact on whether the decedent had or displayed a gun while he ran. It is clearly established that shooting a fleeing suspect in the back violates the Fourth Amendment.  If the factual disputes on whether the suspect had a gun are resolved against the officer, the officer would not be entitled to qualified immunity.  The court ruled it lacked jurisdiction to adjudicate the question of whether the evidence was reliable enough to support the district court's conclusion that a genuine dispute existed.  On the question of whether the officer had reasonable suspicion to make an investigative stop of the decedent, however, the court found no genuine dispute of fact and that the officer was entitled to qualified immunity.  The 911 caller's information, as corroborated by the officer's observations, had sufficient indicia of reliability to support qualified immunity for the officer's conclusion of reasonable suspicion.  The court also found that the officer was entitled to qualified immunity for approaching the decedent with gun drawn (but not pointed at the suspect).  The law did not clearly establish that doing so constituted excessive force.

 A dissenting judge opined that, viewing the facts in the light most favorable to the plaintiffs, there was no evidence that the officer violated the Fourteenth Amendment by using force for a reason other than a legitimate police purpose.

Trial Court Did Not Abuse Discretion in Limiting Mini-Openings and Declining Challenges for Cause in Student Supervision Case

In Alcazar v. Los Angeles Unified School Dist., ordered published November 15, 2018, the Second District Court of Appeal, Division 1 affirmed judgment for the defendant school district after a jury trial.  The plaintiff was a middle-school student with learning disabilities who fell and was injured after swinging on a tree branch that broke.  The plaintiff alleged the school failed to properly supervise him.  During voir dire, the trial court initially allowed the parties to give mini opening statements.  During questioning of the first panel, some jurors expressed pre-judgment of the case based on the details given during the mini-openings.  The court then ordered that for subsequent panels the parties could not give mini-openings; instead, the court would read the statement of the case to which the parties had agreed.  The plaintiff's counsel was permitted to give several details of the case in his questioning of jurors.  Two jurors expressed uncertainty on whether they could be fair, but ultimately said they could.  The court declined the plaintiff's challenge to the jurors for cause.  The jury entered a defense verdict.  The plaintiff alleged that the court had exceeded its discretion under Code of Civil Procedure section 222.5 in limiting the use of mini-openings; and that the court abused its discretion in denying the challenges for cause.

The appellate court affirmed the trial court's exercise of its discretion.  Section 222.5, as it existed at the time of the trial, preserved the trial court's discretion to disallow mini-openings depending on the circumstances.  The circumstances here included jurors stating they had prejudged the case based on the mini-openings given.  The court has discretion to deny a challenge for cause, unless the juror expresses views indicative of an unalterable preference in favor of one side.  Since both jurors here stated they could keep an open mind, the court had discretion to deny the challenge.

Officer Violated Fourth Amendment by Entering Home under Ruse for Administrative Inspection, but Is Entitled to Qualified Immunity

In Whalen v. McMullen, published October 30, 2018, the 9th Circuit affirmed summary judgment in favor of a Washington State Patrol detective in a suit alleging the officer conducted a search of the plaintiff's house that violated the Fourth Amendment.  The plaintiff was receiving Social Security Disability benefits.  A task force that investigates potential social security fraud, investigated the plaintiff.  The task force designates investigations as either civil, criminal, or administrative.  As was common for administrative investigations, the defendant investigating detective did not obtain a search warrant, and used a ruse to communicate with the plaintiff:  the officer stated he was conducting a law enforcement investigation of identity theft.  The plaintiff spoke with the officer in front of her house, and then invited him inside.  The officer wore two hidden video cameras.  The officer spoke with the plaintiff for an hour, then left.  Based on the information the officer provided, the plaintiff's benefits were denied in part.  She was not subject to any civil or criminal action.  The plaintiff alleged that the portion of the detective's encounter with her inside her home violated the Fourth Amendment.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit ruled that the entry into the home, without a warrant, with hidden video cameras, and under cover of a ruse, violated the Fourth Amendment as an improper warrantless search.  It distinguished cases where, as a condition of receiving benefits, people had to allow warrantless entry into their homes, because in those cases the grounds for the entry are transparent.  Here, because the investigator identified himself as a law enforcement officer, the investigation was under a ruse and the plaintiff did not know about the video cameras, the investigator gained entry by invoking the individual's trust in her government, and then betraying it.  But because no precedent clearly established that the detective's actions would violate the Fourth Amendment, the detective was entitled to qualified immunity.

POBRA Deadline to Complete Administrative Investigation Tolled until Final Determination Made in Criminal Investigation

In Bacilio v. City of Los Angeles, published October 25, 2018, the Second District Court of Appeal, Division 2 affirmed a trial court decision on an administrative mandamus petition.  In  August 2011, a witness accused two police officers of misconduct that could give rise to both criminal and administrative liability.  Internal Affairs investigated the matter, and in June 2013 the investigator presented his findings to the District Attorney's office.  In August 2013, a deputy DA interviewed the complaining witness, and afterward commented that she was not going to file against the officers and that it was okay to administratively interview the officers.  In October 2013, the DA's office sent Internal Affairs a charge worksheet officially declining to file charges against the officers.  In September 2014, the LAPD notified the petitioner officer that Internal Affairs was seeking an official reprimand against him, and in November 2014 it brought administrative charges against him.  One of the charges against him was sustained, upheld in an administrative hearing, and upheld by the trial court.  The officer contended that the charge was time-barred because the department did not notify him of the potential discipline within the one-year limitations period of Government Code section 3304, subdivision (d)(2)(A), part of the Peace Officer's Bill of Rights.

The appellate court ruled that the notice was timely.  Section 3304 tolls the one-year period during the time that a criminal investigation or prosecution is pending against any officer involved in the matter.  The court interpreted this tolling period to run until there is a final determination whether to prosecute.  The court affirmed, as supported by substantial evidence, the trial court's determination that there was no final determination until the DA provided the worksheet, despite the DDA's earlier statement that charges would not be filed.

University Denied Student a Fair Hearing by Depriving Him of Investigation Report Crucial to Its Decision Against Him

In Doe v. Regents of University of California, published October 9, 2018, the Second District Court of Appeal, Division 6 reversed a trial court decision denying a university student a petition for writ of administrative mandate.  A female student accused the male student of sexually assaulting her while the two were on a bed, the woman under the covers and the man on top of the covers.  Others were in the room and did not see the alleged assault.  A Santa Barbara County Sexual Assault Team investigated the alleged assault, and compiled a report.  At the administrative hearing contesting the male student's suspension, the committee hearing the matter saw only two pages from the SART report.  The man was not provided with a full copy of the report.  The committee allowed an investigating officer to testify to a portion of the SART report that appeared to corroborate that the woman had been sexually assaulted.  But the officer could not answer whether the information was based on a physical exam or on the woman's allegations.  Shortly before the administrative hearing, the student learned the name of an antidepressant the woman was taking.  He tried to submit his mother's testimony about the effects of the drug with alcohol, but the committee ruled she could not render an expert opinion.  The committee determined the allegations of assault were corroborated, and suspended the student for two years.

The appellate court ruled that the male student had been denied due process.  The committee denied the student a fair trial by accepting the investigator's testimony about a portion of the SART report, but not seeing the report themselves and denying the student a copy.  Fairness demands the accused person be given the evidence against him.  The Rule of Completeness also required that once a portion of the SART report was introduced into evidence, the student was entitled to get and submit evidence about the rest.  Since the report was crucial to the outcome, the errors were prejudicial.  Other errors that deprived the student of due process included that the antidepressant evidence was revealed to the student too late for him to obtain an expert opinion, yet the committee barred non-expert evidence; the committee did not permit the student to be represented by counsel at the hearing, yet the University had counsel present who made evidentiary objections; and the committee applied the rules of evidence inconsistently, to the student's detriment.