Government Liability Update

Constructive Notice That Employee Is Sexually Abusing Students Is Sufficient for Negligence and CANRA Causes of Action against School District, but Not for Title IX and Education Code Section 220 Claims

In Roe v. Hesperia Unified School District, ordered published November 4, 2022, the Fourth District Court of Appeal, Division 2 reversed dismissal of a case after a demurrer was sustained without leave to amend.  An elementary school custodian allegedly molested multiple six-year-old students.  The plaintiffs sued the school district, alleging negligence in supervising the students and the custodian; negligent hiring and retention; negligence per se; violation of Title IX; failure to perform mandatory duties under CANRA, the mandated reporter act; and sex discrimination in education in violation of Education Code section 220.  The trial court sustained the district’s demurrer to the complaint, on the ground that the complaint failed to allege that the district had actual knowledge of prior acts of abuse by the custodian, or that it had actual knowledge that the custodian was abusing the plaintiffs.

The appellate court held that the complaint adequately pled causes of action against the district.  The district may be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising, and retaining a school employee who sexually harasses and abuses a student.  The negligence standard is “knew or should have known.”  Therefore, actual knowledge that an employee is prone to harming students, or is actually harming students, is not necessary.  Constructive notice is sufficient.  Case law applying an actual knowledge requirement when imposing negligence liability for a third party’s sexual abuse of children deal with non-school settings.  The complaint adequately alleged facts that would show constructive knowledge.  The CANRA cause of action also does not require actual knowledge, because it imposes a duty on mandated reporters to make a report when the reporter “knows or reasonably suspects” a child has been the victim of child abuse.  Reasonable suspicion does not require certainty. A breach of CANRA can support a negligence per se cause of action.  It would be objectively reasonable for persons in the position of the school’s employees who saw the conduct alleged in the complaint to reasonably suspect that the custodian was sexually abusing the plaintiffs.  The trial court properly dismissed the causes of action under Title IX and Education Code section 220, however; those provisions impose liability for a teacher sexually harassing a student only when an official at the district with authority to impose corrective measures on the district’s behalf has actual notice of the misconduct and is deliberately indifferent to it.

Civil Code Section 51.9 Does Not Create Statutory Cause of Action against Public Entities for Sexual Harassment; Treble Damages Provision of CCP Section 340.1 Is Not Retroactive and Does Not Apply to School Districts

In K.M. v. Grossmont Union High School District, published October 25, 2022, the Fourth District Court of Appeal, Division 1 affirmed a judgment after jury trial.  The plaintiffs alleged their high school drama teacher sexually abused them.  The causes of action included one against the defendant district under Civil Code section 51.9.  The trial court sustained the district’s demurrer to this cause of action without leave to amend.  The case proceeded to trial against the district on negligence claims.  The jury awarded damages, and apportioned fault 60% to the teacher and 40% to the district.  The plaintiff appealed the ruling on section 51.9.  While the appeal was pending, Code of Civil Procedure section 340.1 was amended to add a provision for treble damages against parties that covered up childhood sexual abuse.  On appeal, the plaintiff contended that under this provision it was entitled to treble damages against the district.

The appellate court concluded that Code of Civil Procedure section 340.1’s treble damages provision is neither retroactive nor applicable to public school districts.  In addition to the treble damages provision, the amendment to section 340.1 in Assembly Bill 218 extended the statute of limitations for childhood sexual abuse and provided a three-year revival period.  The plaintiffs contended that all of AB 218’s provisions, including the new treble damages provision, apply retroactively.  The language of the treble damages provision is silent as to retroactivity, and applying the tests for when statutes are to be interpreted as retroactive, as well as review of the legislative history, supports the conclusion that the provision applies only prospectively.  The court also agreed with two prior appellate decisions (both currently under review by the California Supreme Court) that the treble damages provision is a punitive damages provision that is barred by Government Code section 818, which immunizes public entities from punitive damages.  The court analyzed the treble damages provision and concluded that the damages are punitive rather than compensatory.  The appellate court further upheld the trial court’s ruling that Civil Code section 51.9, together with Civil Code section 52, do not create a statutory cause of action against public entities.  Civil Code section 51.9 renders providers of business services liable for sexual harassment of customers.  The court applied the tests for statutes that create causes of action against public entities, and concluded that a public entity is not a “person” under section 51.9.  Although the statute mentions “teacher” as a type of business relationship to which the statute applies, both public and private entities can employ teachers.  Further, applying section 51.9 to school districts would affect their ability to function by diverting funds needed for education.  Section 52, which provides remedies for violation of section 51.9, does not create a stand-alone cause of action.  Finally, Government Code sections 815.2 and 820, which impose vicarious liability upon public entities for their employees’ violation of duties, do not support imposing section 51.9 or 52 liability upon school districts.

The Unruh Act Does Not Apply to School Districts or Other Public Entities

In Brennon B. v. Superior Court (West Contra Costa Unified School Dist.), published August 4, 2022, the California Supreme Court affirmed a demurrer sustained to a cause of action against a school district for violation of the Unruh Civil Rights Act.  The plaintiff, a disabled student, alleged that the school district violated the Unruh Act by failing to protect him against sexual assault.  The trial court sustained the demurrer on the ground that the district was not a "business establishment" within the meaning of the act.  The plaintiff petitioned the lower court of appeal for writ relief.  The appellate court agreed with the trial court.

The California Supreme Court agreed as well. The Unruh Civil Rights Act, Civil Code section 51, subdivision (b) bars discrimination "in all business establishments of every kind whatsoever." The court examined the language of the Unruh Act, its legislative history, and the history of cases interpreting it, and concluded that the phrase "all business establishments of every kind whatsoever" is limited to entities acting as private business establishments.  In particular, earlier versions of the bill that became the Unruh Act stated that it applied to schools, but reflect a progressive narrowing of the legislation's applicability to "schools' before completely eliminating the reference to schools, while leaving the language concerning "business establishments" untouched.  The district was therefore not a "business establishment" when it provided educational services for the plaintiff.  The court also rejected an alternative argument that subdivision (f) of Civil Code section 51, which makes a violation of the federal Americans with Disabilities Act of 1990 actionable under the Unruh Act, expanded the Unruh Act's application to school districts.  Analyzing the language and legislative history, the court concluded that subdivision (f) means that any violation of the ADA by a business establishment is also a violation of the Unruh Act.  The court further rejected an argument that the language of Education Code section 201, subdivision (g), as amended in 1998, stating a legislative intent that the chapter of the Education Code be interpreted as consistent with the Unruh Civil Rights Act, incorporated the Unruh Act's remedies into the Education Code.  Treating the amendment as bringing public school districts within the ambit of the Unruh Act would have exceeded the stated intention behind the 1998 amendment and been in tension with the Legislature's professed goal of mitigating litigation costs for schools.

Officers' Use of Force to Remove Passively Resisting Protester at City Council Meeting Did Not Violate the Fourth Amendment

In Williamson v. City of National City, published January 24, 2022, the 9th Circuit Court of Appeals reversed denial of the defendant police officers' summary judgment motion, which was based on qualified immunity.  The plaintiff participated in a "die in" protest at a city council meeting.  In the middle of the meeting, they chanted and lay down on the floor near the public speaking podium.  Several others chanted along in the audience.  The protesters refused the mayor's call to order, and the officers' warning that they would be arrested.  The protesters acted as dead weight and refused to cooperate as they were carried out.  The defendant officers handcuffed the plaintiff with her wrists behind her back and pulled her to a standing position.  They lost their grip and she rolled over on her stomach.  The officers each held the plaintiff under an arm and lifted her.  She acted as dead weight.  The officers pulled the plaintiff backward by her arms while she was nearly in a seated position.  An officer dragged her by her left wrist and forearm.  When the plaintiff told the officers they had hurt her shoulder, they called an ambulance and double-cuffed her to lessen the tension.  The plaintiff refused paramedics' offer to take her to the hospital.  She suffered a sprained wrist, mild swelling, and (allegedly) a torn rotator cuff.  She sued the officers under 42 U.S.C. section 1983 and the Bane Act for allegedly using excessive force in violation of the Fourth Amendment.  The district court denied the officers' qualified immunity summary judgment motion, finding material issues of fact on whether the officers used excessive force in light of the plaintiff's injuries.

The 9th Circuit ruled that the officers were entitled to summary judgment on the first prong of qualified immunity:  viewing the facts in the light most favorable to the plaintiff, they did not use excessive force in violation of the Fourth Amendment.  The Fourth Amendment analysis balances the type and amount of force used against the government interest served.  Here, the use of force was minimal.  The inherent risk of officers pulling someone who has gone limp and refuses to move by her own power is not significant.  The force used was less than that found minimal in other 9th Circuit cases.  Although the plaintiff's injuries were not trivial, they were less than those of plaintiffs in cases where the force was found minimal.  The district court erred in focusing exclusively on the plaintiff's injuries in determining whether the force was excessive.  While the injuries are relevant, the type and amount of force used and the risk of harm it created must also be considered.  If a person reacts more adversely to a use of force than would be expected objectively, that does not itself establish that the officer did not act as a reasonable officer.  The government's interest in using force against the protesters was low, but not nonexistent.  The protesters had a right to express their disagreement with government, but they did not have a right to prevent duly installed government from performing lawful functions.  Balancing the interests, the minimal use of force aligned with the low governmental interest involved.  Because the officers did not violate the Fourth Amendment, they were also entitled to summary judgment on the Bane Act cause of action.

Officers Violate Clearly-Established Law if Failure to Identify Selves and Failure to Obtain Warrant Brought About Use of Force

In Murchison v. County of Tehama, published October 4, 2021, the Third District Court of Appeal reversed summary judgment granted in favor of the defendant officers.    Viewing the facts in the light most favorable to the plaintiff, the plaintiff owned property at the end of a public road, which the plaintiff had blocked.  When a real estate agent and a client went past the blockade, the plaintiff told them the road was closed.  The client said he thought he saw something in the plaintiff's pocket that was possibly a handgun.  The agent called the sheriff's department to confirm he had a legal right to use the road, and may have mentioned the handgun.  The defendant officers determined that the plaintiff was a convicted felon who was prohibited from owning firearms, and believed the plaintiff had improperly blocked a public roadway.  The officers did not obtain a warrant to search the plaintiff's property.  An officer admitted they lacked probable cause to obtain a warrant at that time.  Instead, the officers formulated a plan to approach the property in plainclothes, provoke the plaintiff into brandishing a firearm, then arrest him for owning a firearm.  The plaintiff observed the officers enter his property, and called 911.  The officers decided to leave, but then saw an unloaded rifle through the open door of the plaintiff's shop adjacent to his house.  The officers again decided not to obtain a warrant, but instead walk toward the rifle.  They acknowledged there was no emergency present.  The plaintiff, believing he was being robbed, began running toward the rifle.  The officers ran toward the rifle.  An officer drew his weapon, identified himself as an officer,  and ordered the plaintiff onto the ground.  As the plaintiff began to comply, the other officer tackled him.  The officers handcuffed the plaintiff and left him lying in the dirt.  When they asked him about the rifle, the plaintiff informed the officers he had an expungement order he believed allowed him to own rifles.  The officers confirmed the conviction had been expunged, removed the handcuffs, and left.  The plaintiff sued the officers for conducting an illegal search for walking towards the shop and rifle, and using excessive force when they arrested him.  He also asserted claims under the Bane Act and assault and battery.

The appellate court ruled that triable issues of fact defeated summary judgment because, viewing the facts in the light most favorable to the plaintiff, the officers violated the plaintiff's Fourth Amendment rights and were not entitled to qualified immunity to the section 1983 claims.  A reasonable jury could find that an officer violated the Fourth Amendment by leaving the public driveway and entering the plaintiff's curtilage before the plaintiff began running toward the rifle.  Under those facts, the exigent circumstances exception to the warrant requirement would not apply.  A reasonable jury could also find that the use of force was excessive, in light of evidence that the officers' earlier actions may have created the need for their use of force, their purpose of provoking the plaintiff to brandish a firearm, the relatively minor crime at issue, and the degree of force used.  Regarding qualified immunity, the law clearly precluded entering the curtilage of the plaintiff's property without a warrant or exigent circumstances, and multiple cases have held that an officer's failure to identify himself can lead to the unnecessary and excessive application of force.  Regarding the Bane Act claim, there was evidence from which a reasonable jury could find that the officers acted in reckless disregard to the plaintiff's constitutional rights, supporting a specific intent to violate the plaintiff's rights.  Finally, a finding that the officers used excessive force under the Fourth Amendment would also support a claim for assault and battery by a police officer.

 

 

Verdict in Federal Lawsuit that Police Strip Search Was Reasonable Bars Negligence Liability for Strip Search

In Shuler v. City of Los Angeles, published April 5, 2021, the Second District Court of Appeal, Division 8 affirmed judgment on the pleadings for the defendant city.  Police officers stopped the plaintiff's car and detained her during a narcotics investigation.  They arrested her passenger on suspicion of drug dealing.  The officers took the plaintiff and her car to a police station.  An officer strip searched the plaintiff, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges.  The plaintiff sued the city and officers in federal court.  She alleged violation of 42 U.S.C. section 1983, and state law claims including negligence.  The court bifurcated the claims and tried the section 1983 claims to a jury.  The jury found that the officers had arrested and strip searched the plaintiff, but that the arrest and search were reasonable and did not violate her Fourth Amendment rights.  The federal court then declined to exercise supplemental jurisdiction over the plaintiff's state law claims and dismissed them without prejudice.  The plaintiff then filed suit in state court asserting her state law claims.  The state court granted judgment on the pleadings on the ground that the verdict in the federal case barred the state law claims.

The appellate court agreed. Collateral estoppel applied.  The only element of collateral estoppel that the plaintiff disputed was whether the issues in the two proceedings were identical.  Hernandez v. City of Pomona (2009) 46 Cal.4th 501 held that a federal verdict that a police use of lethal force was reasonable under the Fourth Amendment barred a negligence action under California law for the same use of force.  Although this case involves a strip search instead of use of lethal force, the result is the same.  The plaintiff contended that because the federal jury was instructed it had to find the search was intentional to find liability, the verdict did not preclude a negligence claim.  But the intentional instruction did not relate to the issue of reasonableness.  It only required that the jury find the officers intentional strip-searched the plaintiff, rather than accidentally.  Whether the officers intentionally strip-searched her is not in dispute in the state court case.  The dispute is over the reasonableness of the strip search.  Since the federal jury found the search reasonable, and the reasonableness element is the same under state and federal law, the verdict that the search was reasonable bars the action.

Local Government Health Order Complies with Substantive Due Process if It Has a Rational Basis

In County of Los Angeles Department of Public Health v. Superior Court (California Restaurant Assoc.), published March 1, 2021, the Second District Court of Appeal, Division 4 issued a peremptory writ of mandate directing a trial court to vacate an order.  The petitioner county issued an order barring outdoor dining during a surge in the COVID-19 Pandemic.  An association of restaurants and an individual restaurant sued the county, seeking writ relief, declaratory and injunctive relief and relief for violation of due process, equal protection, and infringement of the right to liberty under the California Constitution. In the trial court, both sides submitted expert evidence for and against the restriction's relationship to preventing transmission of the virus. The trial court consolidated the actions, and issued an order enjoining the county from enforcing or enacting any county ban on outdoor dining, unless and until its public health officers conduct a risk-benefit analysis and articulate it for the public.  The county petitioned the court of appeal for writ relief.  The appellate court stayed the trial court's preliminary injunction order and issued an order to show cause.  While the writ was pending, the governor lifted a Regional Stay at Home Order that banned outdoor dining, and the county issued an order permitting outdoor dining with significant restrictions.

The appellate court determined the writ proceeding was not moot, because the county may reimpose the prohibition on outdoor dining if the region faces another surge.  The appellate court further determined that the trial court erred by failing to apply the proper deferential standard for evaluating state and local agencies' responses to public health emergencies.  The 1905 Jacobsen v. Massachusetts U.S. Supreme Court decision held that government action that purports to protect the public health will be upheld, unless it has no real or substantial relation to the object of public health, or beyond all question is a plain, palpable invasion of rights secured by the fundamental law.  The court analyzed recent decisions from the U.S. Supreme Court analyzing Pandemic restrictions on church services, and determined that the Jacobsen holding is still the rule as to secular businesses.  Therefore, the rational-relationship test for substantial due process claims applies; as does the rule of deference to administrative action, limiting that review to determining whether the agency's action has been arbitrary, capricious, or entirely lacking in evidentiary support.  The court cannot reweigh the evidence, or substitute its own judgment for the agency's.  Both the real parties' substantive due process claims and their contention that the county exceeded its emergency powers under Health & Safety Code section 101040 are analyzed under this rational relation test.  The trial court found the county's evidence provided a rational basis for the challenged order, but nevertheless adopted the opinion of the real parties' expert that a health order required a risk-benefit analysis.  Mandating such a nebulous requirement, the appellate court ruled, is inconsistent with the determination of whether the agency's actions were arbitrary, capricious, or entirely lacking in evidence.  Requiring public agencies to undertake such studies would take time and resources that may not be available when swift government action might be taking in response to surging infection, hospitalization, and death.  Because the real parties failed to meet their burden of showing the county's order was arbitrary, capricious, or without rational basis, they cannot ultimately succeed on the merits.  The trial court therefore erred in granting them injunctive relief.

The appellate court also rejected the individual restaurant's argument that the order violated freedom of assembly.  Even assuming the restaurant has a freedom of assembly, the county order does not regulate assembly based on expressive conduct, and is based on a legitimate and substantial government interest.  Further, it leaves open alternative channels for assembling, such as video conferencing and socially-distanced in-person gatherings.

Plaintiffs Failed to Raise Viable Challenge to City's Decision to Remove Historical Sculpture

In Schimd v. City and County of San Francisco, published February 1, 2021, the First District Court of Appeal, Division 4 affirmed dismissal after demurrer of a lawsuit brought by two San Francisco taxpayers challenging the administrative decision of the San Francisco Board of Appeals authorizing the removal of a bronze sculpture that was originally part of a San Francisco Civic Center monument to California’s Pioneer Period. The San Francisco Historic Preservation Commission granted a Certificate of Appropriateness to take down the sculpture and place it in storage, based on significant adverse public reaction to the sculpture. The plaintiffs asserted that the removal violated the Bane Act, and sought administrative mandamus and ordinary mandamus writ relief, among other claims. The trial court sustained the defendants’ demurrer without leave to amend. The appellate court agreed that the plaintiffs failed to state a cause of action. The plaintiffs failed to state a Bane Act claim, because they did not allege any threats, intimidation, or coercion violating rights amenable to Bane Act enforcement. They failed to state a cause of action for administrative mandamus, because they failed to allege anything to support conclusory allegations that the Board of Appeals acted in excess of its authority or abused its discretion. The administrative record shows that the Board acted within its authority as provided by law, and that its conclusions are supported by substantial evidence. The court rejected the argument that the removal violated the California Arts Preservation Act. Even assuming the Act was not preempted by the federal Visual Artists Rights Act of 1991, only an artist or an artist’s heirs has standing to enforce rights under the Act. The complaint failed to show a violation of Federal Historic Preservation Standards, because the decision acknowledged those standards and the complaint did not plead nonconclusory facts showing their violation. The complaint failed to show that the removal was a public nuisance. The complaint failed to show a violation of the California Environmental Quality Act, because the plaintiffs failed to exhaust their administrative remedies under CEQA. The petition for writ of ordinary mandamus alleged that a condition placed on the Certificate of Approval—placement of a plaque before removal—was not carried out. Ordinary mandamus requires identification of a ministerial act. The complaint did not identify a ministerial act, since the Board had discretion to remove the sculpture. Drafting language for the plaque is not a ministerial act, and must precede the plaque’s installation. Since the sculpture was removed before the act was filed, the question of whether the sculpture may be removed before the plaque is installed is moot.

Because School Districts Are Not Business Establishments, the Unruh Act Does Not Apply to Them

In Brennon B. v. Superior Court (West Contra Costa Unified School District), published November 13, 2020, the First District Court of Appeal, Division 1 denied a petition for a writ of mandate challenging an order sustaining the real party school district's demurrer to the petitioner's cause of action under the Unruh Act without leave to amend.  The petitioner, who suffers from autism, alleged he has been the victim of disability discrimination by the school, and that the school had violated the Unruh Act.  He contended that the school district was a "business establishment" under the Unruh Act.  He alternatively argued that even if a school district is not a business establishment, Civil Code section 51, subdivision (f) made any violation of the ADA a violation of the Unruh Act.

The appellate court rejected both arguments. The California Supreme Court has not addressed whether a government entity, and specifically a public school district, is a business establishment within the meaning of the Unruh Act.  The appellate court followed the analytical template the Supreme Court has employed in deciding whether a particular entity is a business establishment for purposes of the Act.  The court examined the historical background of the Act, and concluded nothing in that historical context (as a legislative reaction to the U.S. Supreme Court's Civil Rights cases, dealing with federal legislation imposing antidiscrimination protections on private enterprises) supported application to public entities.  In examining the Unruh Act's legislative history, the court noted that successive versions of the legislation reduced the statute's discussion of "schools," first limiting it to business and vocational training schools and then eliminating any mention of schools.  By the time the Unruh Act was enacted, Brown v. Board of Education had already held racial discrimination in public schools unconstitutional.  Nothing in the legislative history of the Act suggests that it was intended to reach discriminatory conduct by state agents, such as public schools.  Supreme Court precedent grappling with the meaning of the term "business establishment" in the Unruh Act confirm that the elements the Court viewed as determining an entity was a business establishment--overall function enhancing economic value; providing athletic facilitiesas a principal activity and reason for existence; providing a physical plant for patrons to use at their convenience; conducting commercial transactions as an integral part of overall operations;  providing the functional equivalent of a classic place of public accommodation or amusement; or providing the sale of a good--apply to school districts.  Other lower court decisions have examined various legislative activities by public entities and concluded they were not the acts of a "business establishment" for purposes of the Unruh Act.  Those California court decisions that have discussed the Act as applying to public entities have not analyzed the issue.  Federal district court cases have split on whether the Unruh Act applies to California public school districts.  The ones that conclude that it does do not properly analyze the issue.  The court addressed whether Education Code section 200 et. seq.'s statement that the statute shall be interpreted as consistent with the Unruh Act did not expand the Act to covering school districts.

The appellate court also analyzed the argument that under statutory language, any violation of the ADA is a violation of the Unruh Act.  It concluded that this language actually indicates that any violation of the ADA by a business establishment is a violation of the Unruh Act.  The amendment of the Act to address ADA violations consistently discusses disability discrimination by business establishments.  An interpretation of the Act to apply to any violation of the ADA would also run afoul of the California Supreme Court's holding that employment discrimination is not covered by the Unruh Act.

Large Housing Developments That Included Low-Income Housing Did Not Violate FEHA or FHA Through Disparate Impact on Minorities

In Aids Healthcare Foundation v. City of Los Angeles (CH Palladium, LLC), published June 15, 2020, the Second District Court of Appeal, Division 3 affirmed dismissal, after demurrer, of a suit against the defendant city for allegedly violating the federal Fair Housing Act and the state Fair Employment and Housing Act.  The plaintiff alleged that the city's approval four separate multi-use housing projects within a one-mile radius in Hollywood would have a disparate impact on minority residents of the area by causing housing prices in the area to rise to the point where existing residents would no longer be able to afford to live there.

The appellate court ruled that the complaint failed to state a cause of action based on a disparate impact theory of liability. The theory requires that a city policy be an artificial, arbitrary, and unnecessary barrier to fair housing.  The approvals create housing.  That alone is not an absolute shield from disparate-impact liability.  But the policies also do not prohibit the construction of affordable housing, and do not physically remove affordable housing to make way for more expensive housing or other uses.  All of the housing projects included low-income housing.  Three of the projects would not displace any existing housing.  The fourth would involve demolishing 84 rent-stabilized units, but would replace them with 105 units restricted for very-low-income households.  Forty of the units will be reserved for former tenants of the demolished building.  Although gentrification might cause owners of existing housing to raise their prices, that would be the act of third parties, rather than the city. The FHA and FEHA cannot be used to force housing authorities to reorder their priorities.  That is what the suit attempted to force the city to do.  Because the plaintiff failed to show how the complaint could be cured by additional specific factual allegations, the trial court acted within its discretion in sustaining the demurrer without leave to amend.