Government Liability Update

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.

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.

Officers Violated Fourth Amendment and Is Liable under State Law for Arresting Middle-School Students to Teach Them a Lesson

In Scott v. County of San Bernardino, published September 10, 2018, the 9th Circuit affirmed summary judgment granted to the plaintiffs, three middle-school students.  The three students, 12- and 13-year-old girls, went to school officials to talk about another student's bullying and threats toward them.  A school administrator asked one of the defendants, a deputy who was a school security officer, to come to the campus to talk to the girls and the girl they complained about.  He intended to mediate the conflict.  WIthin a few minutes, however, he decided that the girls were being disrespectful.  He decided to arrest them, to prove that he "wasn't playing around," "to prove a point" and "to make [them] mature a lot faster."  He and another deputy defendant handcuffed the girls.  The allege aggressor was released to her father on campus.  The others were driven in a police vehicle to  the sheriff's department, where they were interviewed and released to their parents.  No charges were filed.  At trial, the district court granted the plaintiffs summary judgment both on their 42 U.S.C. § 1983 claim and their state law false arrest claim.

The 9th Circuit agreed that the deputies were liable.  New Jersey v. TLO ruled that the Fourth Amendment protects students, subject to a "special needs" exception under which warrantless searches do not violate the Fourth Amendment if the actions are justified at their inception and reasonably related in scope to the circumstances that justified the actions.  The arrests violated both parts of the test.  The actions were not justified at their inception.  The deputies had no specific information any of the arrested girls had done anything.  Further, under the special needs exception, the officers' subjective motivation may be considered.  The deputies' stated reasons for the arrest did not provide justification for arrest.  Further, handcuffing and arresting middle-school girls was an unreasonable response to the school's need.  Because the law was clear that the deputies' arrest violated the Fourth Amendment, they were not entitled to qualified immunity.  Under state law, none of the statutes under which the deputies justified the arrest applied.  The district court therefore properly granted summary judgment on the state law false arrest ground as well.

Field-Trip Immunity Does Not Immunize Community College from Liability for Dangerous Condition of Property That Injures Member of Visiting Athletic Team

In Anselmo v. Grossmont-Cuyamaca Community College District, published August 3, 2018, the Fourth District Court of Appeal, Division 1 reversed  dismissal of the plaintiff's lawsuit on demurrer.  The plaintiff was a member of a community college women's volleyball team.  The team traveled to the defendant district's community college's campus to participate in an intercollegiate beach volleyball tournament.  The plaintiff alleged she was injured when she dove into the sand on the volleyball court and her knee hit a rock.  She sued the district for maintaining a dangerous condition of public property.  The trial court sustained the district's demurrer based on the field trips and excursions immunity provided to community colleges by title 5, section 55220 of the California Code of Regulations.

The appellate court ruled that the immunity does not apply to an injury suffered by a member of a visiting team during an intercollegiate athletic event.  The immunity protected the plaintiff's college from liability for operating the excursion that brought the plaintiff to the defendant's campus, but it did not protect the defendant from allegedly violating its duty not to increase the risk inherent in the sport by creating a dangerous condition of public property.  Otherwise, the district could be held liable to a student of the district for a dangerous condition, but could not be held liable to a visiting athlete injured by the same condition.

School Board's Policy of Opening Meetings with Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, published July 25, 2018, the 9th Circuit affirmed the district court's grant of summary judgment and injunctive relief against the defendant school board.  The board instituted a policy of beginning each meeting with a prayer.  A rotating set of presenters, from a list, delivered the invocations.  Usually invited clergy delivered the prayers.  On some occasions, board members led the prayers. School board members made proselytizing remarks concerning Christianity in relation to the invocations.  Minor students, from grade school to high school age, took part in the school board meetings.  The injunction barred the board members from conducting, permitting, or endorsing school-sponsored prayers in board meetings.

The 9th Circuit agreed that under the circumstances the prayer policy violated the Establishment Clause of the First Amendment.  The court ruled that the prayer did not fall under the legislative-prayer tradition that permits certain types of prayers to open legislative sessions:  solemnizing and unifying prayers aimed at the legislators themselves, conducted before an audience of mature adults.  Instead, they are delivered before a group of minor students whose presence is not voluntary and whose relationship to board members (unlike a constituent's relationship to a legislature) is not one of full parity.  Further, the historical tradition of legislative prayer does not apply to school board prayer; at the time of the framing, free public education was virtually nonexistent.  The framers therefore could not have contemplated whether opening prayers at a government-run school board's meeting would violate the Establishment Clause.  The Lemon v. Kurtzman test for determining impermissible establishment of religion therefore applies.  The prayer policy fails that test, because it lacks a secular legislative purpose.  Government action violates that prong of Lemon when the government's predominant purpose is to advance or favor religion.  In evaluating purpose, the court takes the statements of public officials into account.  Shortly after the policy was adopted, a board member stated the policy's purpose was to further Christianity.  Further, there is no secular ground for limiting solemnization of meetings to prayers or presuppose the solemnizers will be religious leaders.  The expressed purpose of demonstrating tolerance for religious diversity fails, because there are many non-Christian faiths in California whose membership lacks a "critical mass" in the district to sustain a community there.  The invocation policy therefore reinforces the dominance of particular religious traditions.  Further, the policy does not embrace nonreligious belief systems.  Further, the policy fosters an impermissible entanglement between religion and government. 

Because Eleventh Amendment Bars Administrative Mandamus Petition against State in Federal Court, Suit against State University Barred by Failure to Exhaust Judicial Remedies

In Doe v. Regents of University of California, published June 6, 2018, the 9th Circuit Court of Appeals reversed denial of a motion to dismiss a suit against the Regents of the University of California and the Assistant Dean of Students at one of the UC universities.  The plaintiff, a university student, was suspended for alleged sexual assault of a fellow student.  The university held an administrative hearing before suspending him.  The plaintiff initially sued the Regents under Title IX, under 42 U.S.C. section 1983 (for denial of procedural due process), and under various state claims.  The district court granted a motion to dismiss the state law claims, on the ground that the plaintiff had not yet exhausted his judicial remedies by filing a Code of Civil Procedure section 1094.5 petition for writ of administrative mandamus challenging the administrative decision.  It dismissed the Title IX claim for failure to state a claim, and the section 1983 claim as barred by the Eleventh Amendment.  The plaintiff filed a first amended complaint that dropped the state law claims, added a section 1094.5 claim, reasserted the Title IX claim with additional allegations, added the assistant dean and asserted the section 1983 claims only against the assistant dean.  The district court dismissed the Title IX claim with prejudice and the section 1983 claim as barred by the Eleventh Amendment, and declined to exercise jurisdiction over the section 1094.5 claim.  The plaintiff filed a second amended complaint stating that the assistant dean was sued under section 1983 only in her official capacity, and reasserting the section 1094.5 claim.  The court denied a motion to dismiss.  The defendants took an interlocutory appeal.

The 9th Circuit ruled that the Eleventh Amendment barred the section 1094.5 claim.  Although there is an exception to the Eleventh Amendment for prospective injunctive relief, that exception does not apply when the state (or state instrumentalities, such as the Regents) is sued under state law.  A section 1094.5 claim is not just a procedural vehicle; it raises substantive state law claims.  Further, the complaint sought attorney fees under Government Code section 800(a), which applies when a complaint seeks relief under state law.  Since the only claim under state law was the section 1094.5 claim, he was seeking substantive relief.  The plaintiff therefore could not exhaust his judicial remedies in the federal lawsuit.  His Title IX and section 1983 claims were therefore barred by failure to exhaust judicial remedies.  Unless overturned by a writ of administrative mandamus under section 1094.5, the administrative decision had preclusive effect that barred his federal claims.

Police and University Officials Entitled to Qualified Immunity for Use of Force Against Students Refusing Orders to Disperse

In Felarca v. Birgeneau, published May 31, 2018, the 9th Circuit reversed denial of summary judgment, on qualified immunity grounds, to multiple police officers and university officials arising out of police use of force against student protesters who violated an order to take down an encampment on campus and disperse. 

Viewing the facts in the light most favorable to the plaintiffs, the 9th Circuit held that two officers who used baton jabs against protesters who formed a human chain and refused to move did not use excessive force under the Fourth Amendment.  The students were not seriously injured, the force used was minimal, and the defendants had a legitimate interest in using minimal force to maintain order and enforce the university's policy.  As to the university officials who allegedly planned the use of force and failed to stop it, the 9th Circuit concluded that the plaintiffs had failed to prove that the supervisors either personally engaged in unconstitutional conduct or were causally connected to the conduct.  Even for the officials within the police chain of command, the plaintiffs failed to link their injuries to individual police officers who were within that chain of commend.  As for the plaintiffs who received baton blows from officers that resulted in hospitalizations, the plaintiffs failed to show that the law was clearly established that use of baton blows under the circumstances (including the number of protesters, and the act of at least one plaintiff in provoking the officers) violated the Fourth Amendment.  

One judge, concurring in the result, disagreed that the use of force was reasonable under the Fourth Amendment, but agreed that the officers were entitled to qualified immunity under the clearly-established-law prong.

District Failed to Reasonably Accommodate Probationary Employee, or Engage in Interactive Process, When It Granted Her Medical Leave and Terminated Her While She Was on Leave

In Hernandez v. Rancho Santiago Community College Dist., published May 3, 2018, the Fourth District Court of Appeal, Division 3 affirmed a judgment after bench trial holding that the defendant district failed to reasonably accommodate the plaintiff or engage in an interactive process with her, in violation of the Fair Employment and Housing Act.  In a previous hiring by the district, the plaintiff was injured on the job.  During the hiring at issue, she was a probationary employee.  When she had been working for the district for six months, her doctor recommended surgery for conditions caused by the workplace injury.  She spoke to the district's risk manager, and told him she was concerned that she would lose her job if she had the surgery during her probationary period.  He told her she could not be fired on a workers compensation case.  She said that if he had told her differently, she would have put off her surgery until after her probationary period.  She estimated she would be off work three to four months.  The district granted her medical leave.  While she was on leave, the district terminated her employment.  When she called human resources, she was told that she should have known better than to take personal leave while on probation.  She was not told she could reapply for her position.  The district argued that it had reasonably accommodated the plaintiff by giving her medical leave, and that under Education Code section 88013(a) it had to terminate her after twelve months' probation or else she would have become a permanent employee without having undergone evaluation.

The appellate court agreed with the trial court that the district was liable under FEHA for not reasonably accommodating the plaintiff.  It held that the district could have deducted from the statutory probationary period the time that the plaintiff was on medical leave.  Because it did not, it failed to reasonably accommodate her.  The appellate court also agreed with the trial court that the district failed to participate in a good faith interactive process with the plaintiff.  Telling the plaintiff she could not be fired while on medical leave, and then firing her while she was on leave, was not acting in good faith.  Nor was rebuffing the plaintiff when she contacted human resources for an accommodation.

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.

Although the Government Claims Act Exempts Childhood Sexual Molestation Causes of Action from the Claim Presentation Requirement, It Permits Local Public Entities to Impose Their Own Claim Requirements

In Big Oak Flat-Groveland Unified School District v. Superior Court (Doe), ordered published March 16, 2018, the Fifth District Court of Appeal issued a writ of mandate directing the trial court to sustain the defendant school district's demurrer to the plaintiff's complaint.  The minor plaintiff alleged that the defendant school district had negligently failed to prevent a teacher's alleged molestation of her between 2013 and 2014.  The plaintiff filed suit against the district in 2015.  She did not present a claim for damages.  The complaint alleged that under Government Code section 905, subdivision (m), her claim for childhood sexual abuse was exempt from the claim presentation requirement in the Government Claims Act.  The district demurred on the ground that Government Code section 935 authorized local public entities to impose their own claim requirements on claims exempted by Government Code section 905 from the Government Claims Act's claim-presentation requirements.  The trial court overruled the demurrer, on the ground that the Legislature's intent in enacting section 905(m) was to exempt childhood molestation claims from the claim-presentation requirements.

The appellate court held that Government Code section 935 permitted the district to enact its own claim-presentation requirements for claims exempted under section 905; and that because the plaintiff failed to satisfy those requirements by presenting a timely claim, her suit against the district was barred.  Government Code sections 905 and 935 are unambiguous and coordinated:  If a claim is listed in section 905, the Government Claims Act's claim-presentation requirements do not apply; but under section 935, claims against a local public entity exempted by section 905 "and which are not governed by any other statutes or regulations expressly relating thereto" shall be governed by the claim procedure prescribed in any charter, ordinance, or regulation the local public entity adopts.  The procedure may include a claim-presentation procedure, so long as the time for presenting the claim is not shorter than that prescribed in the Government Claims Act.  Multiple cases have held that these provisions are unambiguous, and permit local entities to impose their claim-presentation requirements on causes of action otherwise exempt under section 905.  Because the statutes are not ambiguous, there is no need to consider the Legislature's intent.  But if that intent is considered, the court ruled, it does not change the result.  The Legislature passed section 905(m) with the intent that childhood sexual molestation claims be exempted from the claim-presentation requirement.  But the Legislature did not address or consider section 935, or provide that section 905(m) was exempt from it.  The plaintiff argued that Code of Civil Procedure section 340.1, which governs statutes of limitation for childhood sexual molestation claims, was an "other statute" governing under section 935, since section 905 refers to it.  The court rejected this argument, interpreting the "other statute" language to refer to another statute concerning claims presentation.  A statute of limitation does not govern claims presentation.  The appellate court commented that if the Legislature's intent was to exempt childhood sexual molestation claims from local entities' claim-presentation requirements, "it is in the Legislature's province, not ours, to address the issue."