Government Liability Update

Stipulated Judgment Awarding Set Amount of Attorney Fees but Permitting Fees for Enforcement Allowed Plaintiffs to Seek Award of Fees for Enforcement

In Robles v. City of Ontario, published November 6, 2024, the Fourth District Court of Appeal, Division 3 reversed a trial court order denying the plaintiffs their attorney fees for enforcing a stipulated judgment.  The plaintiffs brought a lawsuit under the Voting Rights Act of 16965 (52 U.S.C section 10301(c)), the California Voting Rights Act (Elec. Code section 14027) and 42 U.S.C. section 1983 alleging the defendant city violated the voting rights acts by failing to conduct district, rather than at-large, elections for city council members.  The parties settled the lawsuit with a stipulated judgment.  A paragraph of the stipulation provided that the city would pay “$300,000 in full satisfaction of attorneys’ fees and litigation expenses in this Action consistent with Elections Code section 14030 . . . . The City accepts plaintiffs’ attorneys’ statement for this claim and representation that it is based on actual time and expenses incurred.” Another paragraph provided that, “except as otherwise expressly provided in this Stipulation, each party shall bear its own costs, expenses, and attorneys fees arising out of or relating to the Action.”  Another paragraph stated that the plaintiffs released the defendants from any attorneys' fees " except for rights to enforce this Stipulation, or as provided herein.”  Later, the plaintiffs brought a motion to enforce the stipulated judgment, alleging the city was not complying with it.  The trial court found that the city had not complied with the terms of the settlement.  The court questioned whether the stipulated judgment was entirely consistent with the law, but eventually the defendants conceded that issue.  The court ruled the substantive issues resolved.  The plaintiffs moved for attorney fees for enforcing the judgment.  The trial court ruled that the stipulation did not provide for fees beyond those already paid.  The court further opined that the motion was not necessary, because the city had been doing everything it could and the plaintiffs were pushing because the matter was not moving quick enough.

The appellate court ruled that the trial court erred in interpreting the stipulated judgment's fee provisions.  The $300,000 satisfaction of attorney fees in the stipulation includes language that the fees had been "incurred."  That indicates fees incurred in the past.  The stipulation also carved out fees "to enforce this stipulation."  That is what plaintiffs sought, and under the stipulated judgment they had a legal right to seek those fees.  The court remanded the matter to the trial court to determine whether the plaintiffs qualified as prevailing parties, and if so the amount of fees to be awarded.  In determining prevailing party status, the appellate court further ruled, whether plaintiffs' counsel was "pushing" or whether defendants were doing "everything they can" is not relevant.

Although Officers Had Probable Cause to Arrest Suspect, They Are Not Immune from Negligence Liability for Interfering with Paramedic Treatment; Immunity for Injuries to Prisoners Does Not Apply to Public Employees

In Collins v. County of San Diego, published February 17, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment entered after jury trial.  County sheriff's deputies investigated reports from the plaintiff that resulted from the plaintiff's delusions.  The plaintiff's roommates told the deputies that the plaintiff had been acting oddly.  There was conflicting evidence over whether the roommates said the plaintiff had been binge drinking.  The plaintiff left the apartment, stumbled, and fell.  A passerby called 911.  Paramedics arrived and began assessing the plaintiff.  An ambulance was called.  Sheriff's deputies, including one who had been involved in the call to the apartment, arrived and arrested the plaintiff.  There was conflicting evidence over whether the paramedics had completed assessment of the plaintiff.  The arresting deputy took the plaintiff to jail.  There, a nurse employed by the county conducted a medical intake exam.  The nurse decided the plaintiff was safe to place in a jail cell.  The plaintiff sustained a forehead injury, treated with a band-aid.  The jail doctor visited the plaintiff in jail.  He was not told of the plaintiff's hallucinations or incoherent statements, or that he had fallen and injured his head.  The doctor concluded no further care was needed.  The plaintiff fell again.  He was taken to a private hospital.  He was diagnosed with severely low sodium level and a brain bleed to his frontal lobe.  The doctors at the hospital allegedly mistreated the condition, further injuring the plaintiff.  The plaintiff settled with the hospital and its doctors.  He then sued the county, two of the arresting deputies, and the two nurses who saw him in jail.  The jury found the deputies and nurses negligent, but rejected an unlawful arrest claim on the ground the deputies had probable cause to arrest the plaintiff.

The court of appeal rejected the defendants' various attacks on the judgment.  The defendants argued that the negligence verdict against the deputies was inconsistent with the finding that they had probable cause to arrest.  The appellate court concluded that while probable cause would immunize the deputies from liability for a negligent arrest, it did not immunize them from negligence apart from the arrest.  Here, there was evidence supporting the plaintiff's theory that the officers negligently interfered with the paramedics due to arresting him before they had a chance to finish their examination.  The court also rejected an attack on an instruction that the deputies were liable for the doctors' and hospital's alleged negligence in treating him.  A defendant who negligently injures a plaintiff is liable for any subsequent injury from negligent treatment of the injury they caused.  The court rejected the argument that Government Code section 845.6 immunized the deputies or county from liability for the subsequent medical treatment.  Section 845.6 applies only to injuries to prisoners, and the plaintiff was not yet a prisoner when the deputies allegedly interfered with the paramedics.  The appellate court rejected the argument that the individual defendants were immune from liability for the plaintiff's injuries in jail under Government Code section 844.6's immunity for injuries to prisoners.  Section 844.6 immunizes only public entities, not public employees.  The nurse who initially examined the plaintiff argued he was immune under Government Code section 855.6, which immunizes examinations to determine if persons are dangers to themselves or others.  The court ruled that the immunity did not apply, because it is inapplicable to examinations for the purpose of treatment.  One of the purposes of the examination was to determine whether the plaintiff needed medical treatment.  Finally, the court approved the trial court's apportionment of the offset from the doctors' and hospital's settlement against the judgment, which did not reduce the percentage of the settlement amount apportioned to noneconomic damages based on MICRA limitations on noneconomic damages.  MICRA caps apply only to judgments, not settlements.

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.

Court Awarding Fees under 42 U.S.C. Section 1988 Must Explain Substantial Reduction of Claimed Fees; Settlement Permitting Fee Award under Section 1988 Does Not Permit Fee Award Under a Different Statute

In Kerkeles v. City of San Jose, published December 18, 2015, the Sixth District Court of Appeal reversed a trial court's decision that effectively reduced by more than 80% a fee award under 42 U.S.C. section 1988.  The parties had settled a civil rights decision.  The settlement agreement provided that plaintiff could seek in court a fee award under 42 U.S.C. section 1988.  The fee motion sought over $2 million, including a multiplier to the lodestar amount under the California Private Attorney General statute, Code of Civil Procedure section 1021.5.  The trial court's order deemed the hours expended excessive.  Yet the ultimate order did not reduce the number of hours used in the lodestar calculation.  Instead, it reduced the hourly fees of the counsel used in the lodestar calculation, and then reduced the total lodestar by half.  It also declined to award fees under section 1021.5.

 

The appellate court agreed that the plaintiff was not entitled to fees under section 1021.5, since the settlement agreement specified that plaintiff was entitled to fees under 42 U.S.C. section 1988.  It therefore applied only the standards for attorney fees under section 1988.  Under that statute, reduction of claimed attorney fees that are more than a "haircut" require an explanation of the reductions by the trial court.  Because the fee order here did not provide a sufficient explanation, the appellate court remanded the fee award to the trial court.

State Law Privileges Do Not Govern Admissibility of Evidence of Settlement in Federal Court on Mixed Federal and State Claims

In Wilcox v. Maricopa County, published June 2, 2014, the 9th Circuit Court of Appeals affirmed a district court order granting a motion to enforce against an Arizona county a settlement agreement reached during mediation, in an action alleging both federal and state law causes of action.  The plaintiffs asserted that a mediator hired by the County settled the plaintiffs' claims (and those of several other plaintiffs arising out of the same circumstances) and confirmed the settlement in an e-mail.  The district court held an evidentiary hearing at which the directing county manager (authorized by resolution to resolve the claims) testified that he had authority to settle the claims, had authorized the mediator to communicate the settlement offer, was aware the mediator had communicated the offer, and believed a binding settlement was entered into.  The district court granted the motion. 

The 9th Circuit affirmed.  It rejected the county's argument that the manager's testimony and the e-mails were privileged under Arizona's mediation privilege.  Under the Federal Rules of Evidence, federal common law governs claims of privilege, but state law goerns privilege regarding a claim or defense governed by state law.  Since the same evidence related to the federal and the state claims asserted in the action, state law did not bind the federal court on privilege.  Because the county stated it was not contending that federal common law created a mediation privilege, the court declined to rule on whether such a privilege exists.