Transcript Slide 1

Case Law Update: Top Ten
Tort Cases of the Year
Plus some extra ones
Judy L. McKelvey
Daniel P. Barer
Pollak, Vida & Fisher
Los Angeles, CA
Qualified Immunity
• Officers detain the brother and sister-in-law of a
car theft suspect, who are in a car without a
public VIN. They search the couple’s house,
mistakenly believing they have permission to do
so. They arrest the couple, and hold them until
they confirm their car wasn’t stolen.
• The couple sue the officers under 42 U.S.C. §
1983 (federal constitutional rights statute) and
CC § 52.1 (Bane Act --state constitutional rights
• The officers assert qualified immunity as to both
Qualified Immunity
• Can the officers assert qualified immunity
as to the § 1983 cause of action?
• Yes.
• Can they assert it as to the Bane Act
cause of action?
• No.
• Venegas v. County of Los Angeles
(Venegas III) (2007) 153 Cal.App.4th
Qualified Immunity
• Benefits of Bane Act:
– Attorney fees under both Bane Act & § 1983.
– Can assert rights secured under either federal or
state constitutions or laws.
• Limitations on Bane Act:
– Requires claim; § 1983 doesn’t.
– Requires violation of rights by threats, intimidation or
– Cannot be based on speech unless the speech
threatens violence against person or group; is
reasonably understood to threaten violence; and
accompanied by present ability.
School Law
• During a school sanctioned and
supervised off-campus event, a student
holds up a banner reading, “BONG HITS 4
• The principal interprets the banner as
promoting drugs.
• The student meant the sign as
“meaningless and funny.”
School Law
• Does the school violate the student’s First
Amendment rights by disciplining him?
• No.
• Morse v. Frederick (2007) __ U.S. __ [127
S.Ct. 2618].
• Principal may restrict student speech
reasonably viewed as promoting illegal
drug use, even if it does not disrupt school
work and discipline.
School Law
• Resolves split – interpret speech from
viewpoint of school administrator, as long
as interpretation reasonable.
• Apply to humorous threats of violence?
• Extend to extracurricular communication
about students and teachers?
Police Pursuits
• A county deputy observed a speeding motorist and attempted to pull
the driver over. The speeding driver sped away, and a high-speed
chase by several officers ensued. After hitting one of the officer’s
vehicles, the suspect sped away down a two-lane highway.
• Ten miles later, one of the pursuing officers intentionally hit the rear
of the fleeing suspect’s vehicle with his own front bumper, causing
the suspect’s vehicle to overturn. The fleeing suspect was rendered
a quadriplegic as a result of the crash.
• The injured suspect sued the officer and the county, alleging use of
excessive force resulting in an unreasonable seizure under the
Fourth Amendment. The defendants filed a motion for summary
judgment based on qualified immunity.
Police Pursuits
• Can an officer take actions that place a fleeing motorist
in risk of serious injury or death to prevent further danger
to the lives of innocent bystanders?
• Yes.
• The car chase initiated by the fleeing motorist posed a
substantial and immediate risk of serious physical injury
to others. The officer’s actions were reasonable and
necessary to protect the lives of innocent bystanders.
• He was therefore entitled to qualified immunity against
the suspect’s excessive force claim.
• Scott v. Harris (2007) ___ U.S. ___ [127 S.Ct. 1769].
Release of Information
• When he was 15, plaintiff was accused of, but not prosecuted for,
molesting his nephew. Details concerning the alleged molestations
were entered into a statewide victims-of-crime computer database.
• Plaintiff’s parents and stepparents obtained court orders prohibiting
plaintiff, then still a minor, from visiting his minor stepsiblings.
• A decade later, when plaintiff was an adult, plaintiff’s stepmother
sought to set aside the visitation prohibition. The fact that plaintiff
had been accused of molestation while he was a juvenile was
placed in the public record via an evidentiary letter filed in opposition
to the stepmother’s requested order.
• Plaintiff sued the county and the stepmother, alleging invasion of
privacy based on the evidentiary letter.
• The county moved for nonsuit based on Civil Code § 47(b)’s
litigation privilege.
Release of Information
• Does the litigation privilege bar suit against a county for
violating constitutional rights to privacy by revealing past
criminal accusations against a juvenile for use in a family
law proceeding?
• Yes.
• The litigation privilege of Civil Code § 47(b) -- which
generally protects from tort liability any publication made
in connection with a judicial proceeding -- protected the
evidentiary letter.
• The privilege extends to causes of action based on
California’s constitutional right to privacy.
• Jacob B. v. County of Shasta (2007) 40 Cal.4th 948.
Prosecutorial Liability
• While in jail awaiting his murder trial, petitioner confessed to another
inmate. The other inmate informed the DA’s office of petitioner’s
confession, and received benefits from the DA’s office in exchange
for his testimony against petitioner in the murder trial.
• During his trial testimony regarding petitioner’s jailhouse confession,
the informant testified that he received no benefits from his
testimony against petitioner.
• Petitioner was convicted of murder.
• Petitioner sued the DA under 42 U.S.C. § 1983 for deprivation of
due process. He alleged that the informant’s testimony about the
confession and about his non-receipt of benefits was false; and that
members of the DA’s office failed to adequately train or supervise
the sharing of information concerning jailhouse informants within the
office, ultimately depriving petitioner of an opportunity to impeach
the informant.
• Defendants moved to dismiss based on absolute immunity.
Prosecutorial Liability
• Are district attorneys entitled to absolute immunity under § 1983 for
office policies concerning the use of jailhouse informants?
• No.
• Absolute immunity applies only to acts closely associated with the
judicial process. It does not extend to administrative acts.
• The DA’s office has a constitutional obligation to ensure that
information regarding jailhouse informants is shared among
prosecutors in their office.
• Compliance with that obligation is an administrative -- rather than a
prosecutorial -- function, so the immunity is qualified, not absolute.
Although the DA’s office’s purported failures related to trial
preparation, they lacked close association with the judicial phase of
petitioner’s trial.
• Goldstein v. City of Long Beach (2007) 481 F.3d 1170.
• A former student accuses her high school coach of
molesting her. The investigating officers arrest the
coach; book him; and release him an hour later. They
then hold a press conference, at which they announce
the arrest and ask for anyone with information about
other molestations to step forward. The DA decides not
to press charges against the coach.
• The coach sues the officers and their employer under
the Bane Act for the arrest; and for IIED and defamation
arising out of the statements to the press.
• The court determines the officers lacked probable cause
to arrest.
• Are the officers liable under the Bane Act for the
• Yes.
• Are the officers liable for IIED or defamation?
• No.
• “Unlawful” arrest does not deprive officers of
immunity under Govt Code § 821.6.
• Gillan v. City of San Marino (2007) 147
Cal.App.4th 1033.
• Issue: Segregating damages.
• Plaintiff, a mid-level supervisory city engineer, opposed his own
supervisor’s termination of one of the subordinate employees
supervised by plaintiff, on grounds that the termination was racially
discriminatory. The subordinate employee was eventually reinstated
with back pay.
• Plaintiff engineer filed a retaliation action against the city and his
supervisor under the Fair Employment and Housing Act (FEHA),
alleging that he suffered adverse employment actions in retaliation
for his opposition to racial discrimination against the subordinate
employee. The alleged retaliatory acts included being stripped of
his supervisory position, excluded from meetings, deprived of
necessary information, removed from important contracts, and
• Defendants alleged that the alleged retaliatory acts were in fact
discretionary acts and thus subject to immunity under Govt C §
Issue of first impression: Is failure to prevent retaliation actionable under
The supervisor’s department’s failure to prevent retaliation against the
complaining employee was actionable under Government Code § 12940(k).
Does the discretionary acts immunity protect a supervisor accused of
imposing adverse employment actions in retaliation for an employee’s
protests opposing racial discrimination against a co-worker?
As presented here, the supervisor’
’s retaliatory actions were not accorded
discretionary immunity under the Government Tort Claims Act § 820.2,
because plaintiff stated a prima facie retaliation case under FEHA.
Taylor v. City of Los Angeles Department of Water and Power (2006) 144
Cal.App.4th 1216.
Local Legislators
• A few city council members believed that city council meetings were
being conducted so late into the night that members of the public
could not exercise their rights to participate in the public comment
portion of such council meetings.
• Those council members individually sued their city, alleging that by
allowing council meetings to continue past a specified time, other
city council members were violating state and local constitutions and
the Ralph M. Brown Act.
• The action against the city sought an injunction prohibiting future
council meetings from continuing past a specified time.
• The city filed an anti-SLAPP motion, alleging that the individual
council members’ action violated the public’s and the non-suing
council members’ free speech rights.
Local Legislators
Do individual city council members have standing to sue a city for Brown Act
violations by the body of which they are members, or to sue under OSHA or
federal or state constitutions, for council meetings that run late?
The individual council members’ action against the city implicated their
fellow council members’ free speech rights; and was subject to motion to
strike under anti-SLAPP law.
Individual council members lack standing to sue over meeting length or for
Brown Act violations by a city council.
The “public interest” exception to anti-SLAPP law does not apply to actions
brought to further a plaintiff’s interest in shortening public meetings,
particularly where the relief sought would actually cause the meetings to
end before members of the public could exercise their public comment
Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242.
Trail Immunity
• A plaintiff walking her dog on a paved pathway in
a dog park slipped on debris, grabbed an
exposed cement ledge as she fell, and was
• Another plaintiff negotiated a tight turn on a
Class I bike path and slammed into the path’s
chain link fence.
• Both sue the public entities that own the
respective paths. Both allege the paths on
which they were injured were improperly
Trail Immunity
• Were the public entities that owned the paths immune
from dangerous condition liability?
• Yes.
• Govt Code § 831.4(b) (recreational trail immunity):
– Applies to both paths and trails.
– Applies to design and location of the path, as well as
– Applies to paved and unpaved paths, if used for the purposes
outlined in § 831.4(a).
– Applies to integral parts of path, such as gateways and fences.
– Applies to “special relationship” and “mandatory duty” theories.
• Plaintiff can’t avoid immunity by calling path a “sidewalk”
if location and purpose show it is a recreational path.
Trail Immunity
• Amberger-Warren v. City of Piedmont
(2006) 143 Cal.App.4th 1074 (dog park
• Prokop v. City of Los Angeles (2007) 150
Cal.App.4th 1332 (bike path).
• Issue: Does the immunity apply to
Claim Procedure and Pleading
• Westcon Const. Corp. v. County of Sacramento (2007)
152 Cal.App.4th 183:
– MSJ for untimely claim not defeated by issue re: date of accrual,
if undisputed accrual was beyond claim deadline.
– Documents asking for payment sent to a county employee,
rather than a statutorily-designated recipient, neither
substantially complies with claim requirements nor is a “claim as
• Paniagua v. Orange County Fire Authority (2007) 149
Cal.App.4th 83:
– Plaintiff’s incapacity and lack of guardian/conservator does not
toll statute of limitations for filing complaint against public entity.
– Appeal of denial of late-claim petition can toll statute of
Claim Procedure and Pleading
• Jordan v. City of Sacramento (1977) 148 Cal.App.4th
– City’s mistaken assertion of law -- that it is not responsible for
accident – does not estop it from asserting statute of limitations,
if the plaintiff was represented by counsel.
– C.f., bad faith; confidential relationship with claimant (e.g.,
• Sofranek v. Merced County (2007) 146 Cal.App.4th 1238
– If plaintiff amends claim after entity sends six-month rejection
notice, entity need not serve another notice in response to
amended claim to preserve six-month statute of limitations.
– If entity nevertheless does serve second six-month rejection
notice, it’s estopped from asserting statute of limitations ran from
first notice.
Other Resources
• Our firm’s Website --
• The Claim Book, 3rd Edition
• California Government Tort Liability
Practice (CEB)
Thank You!
• Judy L. McKelvey
• Daniel P. Barer
• Pollak, Vida & Fisher