Transcript Government Tort Liability:

CLAIM PROCEDURE
AND IMMUNITIES:
UPDATE
Daniel Barer
Pollak, Vida & Fisher
Recent Developments in
Claims and Pleading
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Knapp v. Palisades Charter High School (2007) 146
Cal.App.4th 708: Where charter school is nonprofit public
benefit corporation that is independent from the chartering
authority, it is not a public entity or agency; and not
subject to the claim requirement.
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Sofranek v. Merced County (2007)146 Cal.App.4th 1238:
If respond to claim with GC 913 6-month notice, and
plaintiff serves amended claim, need not respond with
second 6-month notice; entity that did so estopped from
asserting 6 month SOL ran from first notice.
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Jordan v. City of Sacramento (2007) 148 Cal.App.4th
1487: Although city’s claim adjuster incorrectly told
claimant’s counsel that the city wasn’t liable for injury, that
did not estop city from asserting SOL; estoppel only
applies if (a) city misrepresented facts in bad faith; (b) city
in fiduciary relationship with claimant; or (c) claimant
unrepresented (but c.f., Sofranek).
Recent Developments in
Claims and Pleading

Paniagua v. Orange County Fire Authority (2007)
149 Cal.App.4th 83: Incapacity and lack of
conservator/GAL does not toll SOL to file suit;
appeal from denial of late claim relief does toll SOL.
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Orr v. City of Stockton (2007) 150 Cal.App.4th 622:
Petition to preserve evidence is not “suit” for
purposes of meeting 6-month SOL; complaint
against public entity requires specific pleading.
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Canova v. Trustees of Imperial Irrigation Dist.
Employee Pension Plan (2007) 150 Cal.App.4th
1487: Plaintiff’s failure to comply with claims
requirements only bars causes of action that require
claims.
Recent Developments in
Claims and Pleading
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Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201:
CCP 340.1’s revival of molestation actions against third
parties barred by “statutes of limitation” does not revive
actions barred by claim-presentation deadline; that
deadline is not “statute of limitation.”
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City of Stockton v. Superior Court (Civic Partners
Stockton, L.L.C. (2007) 42 Cal.4th 730 : Preferred name
for act is “Government Claim Act,” not “Government Tort
Claim Act”; Act applies to breach of contract claims; city
can wait until claim-presentation period passes before
asserting plaintiff’s failure to present claim.

Ovando v. County of Los Angeles (2008) 159
Cal.App.4th 42: Appellate court affirms new trial order
after jury trial; but can still review (and reverse) order
granting late-claim petition.
New Developments in
Immunities
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Jett v. Penner (9th Cir. 2006) 439 F.3d 1091: GC 845.6’s
exception for failure to summon immediate medical care
does not only apply to patient’s initial injury. Also applies
to follow-up care.
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Bias v. Moynihan (9th Cir. 2007) 508 F.3d 1212: If
information known to public employee who detains patient
under 5150 creates probable cause of danger to patient
or others, employee entitled to qualified immunity under
1983; W & I 5278 immunizes officer from state law
liability; and entity employer and supervisors cannot be
held liable.
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Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033:
GC 821.6 immunizes public employees and entities from
liability for statements to the press about investigations –
even if the statements arise out of actionable conduct that
is not immunized (false arrest).
New Developments in
Immunities
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Richardson-Tunnell v. School Insurance Program for Employees
(2007) 157 Cal.App.4th 1056: GC 821.6 applies to violation of
constitutional provisions; and non-GC statutory liabilities, unless
legislature intended otherwise. GC immunities are jurisdictional.

Jacob B. v. County of Shasta (2007) 40 Cal.4th 948: CC 47
litigation privilege applies to constitutional violations. Immunizes
public entity for erroneous release of private information for
purpose of court proceedings.
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Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289:
GC 855 exception to GC 854.8 applies only to violations of
statutes or of State Department of Health Services, Social
Services, Developmental Services, or Mental Health regulations
that prescribe minimum standards for equipment, personnel or
facilities. GC 855 does not apply to other bodies’ regulations; or
regs setting only general standards (e.g., “sufficient staff.”)
Disagrees with Baber v. Napa State Hospital (1989) 209
Cal.App.3d 213.
New Developments in
Immunities
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Issue: Do GC immunities bar apportionment of fault (Prop.
51/contribution/indemnity/ comparative fault/ mitigation)?
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Test: Whether the immunity eliminates duty.
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Munoz v. City of Union City (2007) 148 Cal.App.4th 173:
Because GC 815 cuts off public entities’ duties created by
common law, cannot apportion fault under Prop 51 to public
entity based on direct common law liability.

Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42: GC
821.6 immunity doesn’t affect duty; does not cut off Prop 51
apportionment.

People ex rel. Grijalva v. Superior Court (United Water
Conservation District) (2008) __ Cal.App.4th__ [2008 WL
287815]: Fire-fighting immunities (GC 850, 850, 850.2, 850.4)
eliminate public entity/employee duties to those injured by fires;
bars comparative fault and mitigation defenses.
Prison Litigation Reform Act
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42 U.S.C.A. § 1997e.

Applies to suits under federal statutes (including 1983).
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Prisoner currently in correctional facility must exhaust that
facility’s internal administrative remedies before suing
about facility conditions.
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Includes suits concerning medical care (providing and
failing to provide.) (Wright v. State (2004) 122 Cal.App.4th
659.)
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County jails have own internal remedy procedures (e.g.,
Moore v. Baca (C.D. Cal. 2002) 2002 WL 31870541).

Exhaustion tolls SOL for both state and federal claims
(Wright).
Prison Litigation Reform Act
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No substantial compliance. (Woodford v. Ngo (2006) 548
U.S. 81.)

Failure to exhaust is affirmative defense; plaintiff need not
plead exhaustion. (Jones v. Bock (2007) __ U.S. __ [127
S.Ct. 910, 921]; Wyatt v. Terhune (9th Cir. 2003) 315 F.3d
1108.)

Defendant must plead and prove that plaintiff was
prisoner at time action filed; and did not exhaust the
requirements. (Moore v. Baca (C.D. Cal. 2002) 2002 WL
31870541.)

Method for raising in federal court: Unenumerated 12(b)
motion. (Wyatt v. Terhune.)

In state court: Demurrer with judicial notice of
nonexhaustion (Wright); or MSJ.
Prison Litigation Reform Act

Fee award for seeking damages capped at 150% of
damages.
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Up to 25% of damages go to satisfying fee award.

Cap applies only to fees devoted solely to seeking
damages. (Dominguez v. Valadez (9th Cir. 2003)
338 F.3d 1070.)

If judgment for both damages and injunctive relief,
and no showing fees were devoted solely to seeking
damages, no 150% cap. (Dominguez.)
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New Address as of March 31,
2008
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Daniel P. Barer
Pollak, Vida & Fisher
11150 W. Olympic Blvd., Ste.
980
Los Angeles, CA 90064
Thank You!
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Daniel P. Barer
Pollak, Vida & Fisher
[email protected]
www.pvandf.com