Transcript The Top 10 - Pollak, Vida & Fisher

The Top 10
Top 10 Public Entity Liability
Cases & Topics 2008-2009
Presenters
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Judy L. McKelvey
Daniel P. Barer
Pollak, Vida & Fisher
Claims & Pleading
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A woman falls into a persistent
coma, allegedly due to public
hospital’s malpractice.
Over three years later, woman’s
parents are named her guardians,
and their attorney files a claim and
late-claim application.
Late claim application granted due
to incapacity; lawsuit filed.
Does CCP 340.5’s 3-year statute
of limitations bar the complaint?
Claims & Pleading
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Yes.
1-year sol in CCP 340.5 applies only
to private defendants; preempted by
Government Code SOLs.
But 3-years-from-injury outside limit
intended to apply to all defendants,
including public entities.
Roberts v. County of Los Angeles
(2009) 175 Cal.App.4th 474 (Petition
for review filed).
Claims & Pleading
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A detained person alleges he was
detained because of his national origin
in violation of the Constitution.
He alleges that two government
officials were instrumental in
formulating and approving the policy
under which he was detained.
Has he stated a federal civil rights
cause of action against the
individuals?
Claims & Pleading
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No.
Federal pleading rules require complaint
to state sufficient facts to state a claim for
relief that is plausible on its face.
Facts alleged must allow the court to
draw the reasonable inference that the
defendant is liable for the misconduct
alleged.
Conclusions aren’t enough.
Ashcroft v. Iqbal (2009) 129 S.Ct. 1937.
Compare Al-Kidd v. Ashcroft, discussed
below.
Claims & Pleading
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
A former sheriff is sued by his
county employer. He asks the
county for a defense. The request
is denied. He wins the case on
nonsuit and then petitions for a
writ compelling the County to pay
his defense costs.
Did the sheriff have to present a
timely claim to petition for defense
cost reimbursement?
Claims & Pleading
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Yes. Claim-presentation requirement
applies to petitions for writ compelling
payment of defense costs – even if
employee was entitled to defense. It
is action for monetary relief.
Did the sheriff’s letter to the county’s
legal counsel and to county board
constitute “claims as presented?”
No. Letter to counsel said it wasn’t
request for defense under Claims Act.
Letter to board was about County’s
defense costs, not his own.
Claims & Pleading
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Sparks v. Kern County Bd. of
Supervisors (2009) 173
Cal.App.4th 794.
Claims & Pleading
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As an underage high school
student, plaintiff engages in sexual
relations with teacher.
When plaintiff is 18, she reveals
the relationship to mother.
Teacher arrested and convicted.
A year later, in therapy, plaintiff
realizes the relationship was
“wrong” and injured her. She
presents a claim two months later.
Is the claim timely?
Claims & Pleading
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Yes.
CCP 340.1(a)’s delayed-discovery accrual
standard applies to claim-presentation
deadline.
Only for claims arising out of conduct before
January 2009. After that, claims for childhood
sexual abuse exempted from tort claims act.
(Govt. Code section 905)
340.1’s SOL doesn’t apply to filing suit.
K.J. v. Arcadia Unified School Dist. (2009) 172
Cal.App.4th 1229.
Conflict with V.C. v. Los Angeles Unified
School Dist. (2006) 139 Cal.App.4th 499
(accrual no later than molester’s arrest)
School Liability – Special
Education
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After School district concludes student
does not need special education
services for ADHD, it does not provide
him with an Individualized Education
Plan.
Student’s parents enroll him in private
school so that he can receive special
education services.
An administrative law judge concludes
student needed special education
services, and orders district to reimburse
the parents for the private education.
School Law – Special
Education
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Can a school district be ordered to reimburse
private special education services if the district
never provided the student with such services?
Yes.
District can be required to reimburse private
education when the district provides an
inadequate IEP.
Nothing in IDEA bars same result when district
doesn’t provide IEP in first place.
Court can consider equities such as whether
parents gave school sufficient chance to
provide services.
Forest Grove School District v. T.A. (2009)
129 S.Ct. 2484.
School Law -- Negligence
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School has bus program for
transporting students.
Six-year-old student boards
stationary bus. Tells driver he
thinks he sees father’s car.
Driver asks if he’s sure. Student
says yes, leaves bus, and is hit
by car.
School Law -- Negligence
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Can school district be held liable
for driver negligence in allowing
student to leave bus?
School Law -- Negligence
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Yes.
Education Code 44808: School immune
for off-campus injuries; but if provides
transportation program, liable for
negligence while students under direct
supervision.
“Transportation” includes students
boarding and leaving stationary bus.
Fact issues on whether duty was
breached prevents summary judgment.
Eric M. v. Cajon Valley Union Sch. Dist.
(2009) 174 Cal.App.4th 285.
School Law -- Discrimination
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A male student is sexually
harassing a younger female
student. The parents allege the
school isn’t doing enough to
remedy the situation.
The parents sue the school district
for sex discrimination under Title
IX; and under 42 USC 1983 for
equal protection violation.
School Law -- Discrimination
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The court dismisses the Title IX
cause of action.
Does Title IX preempt a section
1983 cause of action for school
sex discrimination?
School Law -- Discrimination
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No.
Section 1983 offers remedies
Title IX doesn’t.
No indication Congress intended
Title IX as sole remedy.
Impact: Section 1983 allows suit
against individuals.
Fitzgerald v. Barnstable School
Committee (2009) 129 S.Ct.
788.
Immunities -- Investigation
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A police supervisor sends a
subordinate to the home of an
officer suspected of abusing sick
time.
The officer states on phone he is
home sick; but subordinate learns
he’s not.
The officer is written up. POBRA
due process rights are not
observed.
Immunities -- Investigation
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City liable under POBRA.
Can the supervisor and
subordinate be held liable for
negligent supervision and
intentional infliction of emotional
distress?
Immunities -- Investigation
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No.
Government Code section 821.6
immunizes investigations from tort
liability.
Even if POBRA cause of action
against agency.
Even if officer exonerated of
wrongdoing.
Paterson v. City of Los Angeles
(2009) 174 Cal.App.4th 1393
Immunities – Federal
Prosecutorial Immunity
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Plaintiff who served 24 years in prison
is released upon showing that
prosecutors failed to turn over
potential impeachment evidence about
jailhouse informant to defense
attorney.
Plaintiff alleges failure is due to office
policies resulting in failure to properly
train and supervise prosecutors to turn
over information; and lack of
information sharing systems.
Immunities – Federal
Prosecutorial Immunity
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District court and 9th Circuit rule
that absolute prosecutorial
immunity does not apply.
Is the prosecutor immune from
liability for office policies that
affect prosecution?
Immunities – Federal
Prosecutorial Immunity
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Yes.
Immunity applies to trial prep and
tasks intimately associated with
judicial proceedings.
No immunity for general office
supervision.
But here, attacking decisions that
are intimately associated with trial
prep and judicial proceedings.
Van de Kamp v. Goldstein (2009)
129 S.Ct. 855.
Immunities – Federal
Prosecution Immunities
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Plaintiff pled guilty to murder. Part of the plea
bargain was that she would be sentenced to 15
years, but would be paroled in half of those
years.
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At plaintiff’s parole hearing seven-and-a-half
years into her sentence, the prosecutor
recommended she be denied parole.
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When plaintiff had served more than sevenand-a-half years, the court freed her on a
habeas petition, based on the plea agreement.
Immunities – Federal
Prosecution Immunities
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Plaintiff sued the prosecutor
under 42 U.S.C. 1983 for
intentionally interfering in the
plea agreement by
recommending she stay in
prison.
Is the prosecutor entitled to
absolute immunity?
Immunities – Federal
Prosecution Immunities
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Yes.
Prosecutors are absolutely immune
from liability under section 1983 for
acting as advocates.
At parole hearing, prosecutor
comments on facts and presents
opinion about disposition, but cannot
render legal advice. The prosecutor is
acting as an advocate.
Brown v. Cal. Dept. of Corrections
(9th Cir. 2009) 554 F.3d 747.
Immunities – Federal
Prosecution Immunities
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When a prosecutor seeks a material witness
warrant in order to investigate or preemptively
detain a suspect, rather than to secure his
testimony at another’s trial, the prosecutor is entitled
at most to qualified, rather than absolute, immunity.
Absolute immunity doesn’t apply to investigation.
Government policy of arresting persons without
probable cause on the excuse of the material
witness statute, for purposes of investigating
detainees rather than securing their testimony,
violates 4th Amendment.
Because right clearly established, no qualified
immunity.
Al-Kidd v. Ashcroft (9th Cir. 2009) __ F.3d __.
Police Liability – State and
Federal
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After vehicular and foot chase,
officers shoot and kill unarmed
suspect, based on belief
suspect is armed.
Federal court and jury rule
against plaintiffs on 4th/14th
Amendment excessive force
claims.
Police Liability – State and
Federal
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State law wrongful death
negligence claims dismissed.
Refiled in state court.
Does the ruling on the federal
claims bar the state law claims?
Police Liability – State and
Federal
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Yes.
Collateral estoppel bars relitigating identical issue
decided in previous action.
Federal judge and jury determined officers
exercised reasonable care in using deadly force.
Issue in state law negligence claims is same.
Irrelevant that federal claim requires intentional
misconduct; objective standards of reasonableness
are same for intentional and negligent use of deadly
force.
Hernandez v. City of Pomona (2009) 46 Cal.4th
501.
Police Liability – Special
Relationship Duty
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A male-to-female transgender individual
convicted of parole violation is placed in
Folsom’s general population, despite
recommendation for placement in a
facility offering greater security for
transgender inmates.
Thereafter plaintiff is repeatedly raped,
beaten, and threatened by a series of
cellmates.
Prison staff members ignore her reports
of abuse and requests for transfer to
segregated housing.
Police Liability – Special
Relationship Duty
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Plaintiff sues California Dept. of Corrections
and various prison staff personnel for
negligence and for violation of California
Constitution’s prohibition against cruel and
unusual punishment.
Before this case, California had never
recognized a special duty between prison
guards and inmates giving rise to negligence
liability.
No California case has ever recognized a
private right of action for damages arising out
of violation of California Constitution’s
prohibition against cruel and unusual
punishment.
Police Liability – Special
Relationship Duty
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Can jailers be held liable for
negligence for failure to protect
inmates from foreseeable harm?
Police Liability – Special
Relationship Duty
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Yes.
Jailers owe inmates a special
duty of care and can be liable
for negligent failure to protect
inmates, given the protective
nature of the jailers’ duties and
the vulnerability of the prison
population. (No decision on
who counts as a “jailer.”)
Police Liability – Special
Relationship Duty
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Can jailers be held liable under
California law for cruel and
unusual punishment?
Police Liability – Special
Relationship Duty
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No.
There is no private right of
action for violation of state “cruel
or unusual punishment” clause.
Giraldo v. California Dept. of
Corrections and Rehabilitation
(2008) 168 Cal.App.4th 231.
Police Liability – Due Process
and Deadly Force
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At 2 a.m., officers investigate supposedly
abandoned vehicle; find driver sleeping in
it.
Driver is startled and confused by officers
shining lights and shouting at him. Is
pepper sprayed. Starts to drive away,
towards officers.
Officers shoot and kill him.
Can the family state a 14th Amendment due
process claim on the ground the officers
were deliberately indifferent to driver’s
safety?
Police Liability – Due Process
and Deadly Force
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No.
When rapidly-escalating situation results in
use of deadly force, use “shocks the
conscience” only when officers act with
intent to harm unrelated to legitimate lawenforcement objective.
Even when officers create the rapidlyescalating situation, and even where
danger to public safety is not immediately
obvious, the relevant question is whether
the officer had a “practical” opportunity for
“actual deliberation.”
Porter v. Osborn (9th Cir. 2008) 546 F.3d
1131.
Employee Speech
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Two Police officer plaintiffs
allege their employing agency
retaliated against them for
assisting the DA’s office and the
FBI in investigating suspected
corruption in their agency.
They sue under 42 USC 1983
for retaliation in violation of their
First Amendment rights.
Employee Speech
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Under Garcetti v. Ceballos (U.S.
Supreme Court), a public employee’s
speech pursuant to his duties isn’t
protected by the First Amendment.
Do peace officers speak as part of
their public duties when they
investigate and report corruption
allegations to outside agencies ?
Do they do so when the investigation
and reporting has not been ordered by
anyone within their employing
agency?
Employee Speech
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Yes to both questions.
Under California law, if a police
officer knows of wrongdoing, the
officer has a duty to disclose the
facts to a superior, and to testify
about them to a court or grand
jury.
The officer also has a duty to
investigate corruption, so as to
prevent crime and assist in its
detection.
Employee Speech
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Any speech to the DA or FBI would have been to
disclose alleged acts of corruption within the
officers’ agency.
That is part of the officers’ duty as California peace
officers to uphold the law.
Majority affirms summary judgment for defendants.
Dissenting judge would find issue of fact about
duties.
Still possible suit under California whistleblowing
statutes protecting public employees who report
improper government activity (Cal. Gov.Code §
8547-8547.12.)
Huppert v. City of Pittsburg (9th Cir. 2009)
574 F.3d 696.
Note Densmore v. Maywood cert petition.
Employee Speech
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School security consultant
writes letter to principal, from
home, on own time, complaining
about state of security.
Consultant alleges he was
retaliated against for writing
letter.
Parties dispute extent of
consultant’s duties.
Employee Speech
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Can the school district obtain
summary judgment on the
ground that the consultant’s
speech was within the scope of
his work duties, and so not
protected by the First
Amendment?
Employee Speech
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No.
If the employee spoke as part of his
duties, his speech isn’t protected by
the First Amendment. (Garcetti v.
Ceballos).
Extent of his duties is mixed question
of fact and law.
If dispute on facts, must be resolved
by trial.
Posey v. Lake Pend Oreille School
Dist. No. 84 (9th Cir. 2008) 546 F.3d
1121.
Employee Speech
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Plaintiff is an administrative assistant to
an agency’s general counsel. The
agency talked about firing the counsel.
At a board meeting to discuss the
counsel’s fate, the assistant attended and
sat next to the counsel.
After the counsel was fired, the agency
allegedly withdrew a statement that the
assistant would be appointed assistant to
the replacement counsel, based on the
assistant’s show of loyalty to the fired
counsel.
Employee Speech
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The employee sued the agency for
retaliation in violation of her First
Amendment rights.
The patronage doctrine allows a
newly appointed or elected official
to fire employees for political
loyalty to former officials.
Is the assistant’s lawsuit barred by
the patronage doctrine?
Employment Speech
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No.
The patronage dismissal
doctrine does not extend to
adverse employment actions
motivated by the employee's
personal, rather than political,
loyalties.
Nichols v. Dancer (9th Cir.
2009) 567 F.3d 423.
Regulating Public Speech
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City is concerned about
aggressive street performers in
public park.
City enacts regulation requiring
performers in park to get permits
before performing.
Regulation also bars solicitation of
donations from those waiting in
lines; seated in audiences; or
sitting and eating or drinking.
Regulating Public Speech
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Do the regulations violate street
performers’ First Amendment
rights?
Regulating Public Speech
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Yes.
Streets and parks are public
forums, subject to strong First
Amendment protections.
Street performances and soliciting
donations are First-Amendmentprotected speech.
Permit requirements are prior
restraints; and so unconstitutional
unless narrowly tailored to serve
compelling state interest.
Regulating Public Speech
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Permit requirements for individuals
generally unconstitutional.
Punishing performers who violate rules is
narrower means of protecting public than
requiring all performers to get permits.
Punishing aggressive soliciters of
donations, under panhandling laws, is
narrower means of preserving parkgoers’
peace than completely forbidding
solicitations.
Berger v. City of Seattle (9th Cir. 2009)
569 F.3d 1029.
Exhausting Judicial Remedies
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Plaintiff subcontractor worked on a
housing project for a
redevelopment agency.
The office in charge of labor
compliance erroneously believed
the subcontract required the
plaintiff to pay its workers the
prevailing wage.
At the office’s demand, the
subcontractor, under protest, paid
restitution to its workers.
Exhausting Judicial Remedies
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There was no evidence the plaintiff
had any right to an administrative
hearing concerning the prevailing
wage controversy.
The plaintiff sued the agency and
office under 42 USC 1983 for
depriving it of due process.
The defendants obtained summary
judgment on the ground that the
plaintiff had not first challenged their
actions by a superior court writ petition
–exhaustion of judicial remedies.
Exhausting Judicial Remedies
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Under doctrine of exhaustion of
judicial remedies, if adverse
administrative decision entered
against plaintiff through quasi-judicial
proceedings (hearing, evidence),
plaintiff must challenge result through
writ petition. Otherwise, administrative
result is binding.
Does the doctrine apply if no quasijudicial proceedings occurred or were
available?
Exhausting Judicial Remedies
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No.
Requirement that plaintiff
petition for writ first applies only
if the right was taken through
quasi-judicial proceeding; or if
quasi-judicial proceeding was
available to plaintiff.
Exhausting Judicial Remedies
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Failure to exhaust is affirmative
defense that defendant must
establish.
Defendant must establish that quasijudicial remedy was available.
Y.K.A. Industries, Inc. v.
Redevelopment Agency of City of
San Jose (2009) 174 Cal.App.4th
339.
Fee Awards
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Plaintiff sued the defendant city and its
officers under 42 U.S.C. 1983 for arrest
without probable cause; use of excessive
force; and a city policy of deliberate
indifference.
Plaintiff demands $251,000 including
attorneys’ fees.
After extensive discovery by plaintiff,
court rules on cross-MSJs for defendants
on all issues except excessive force.
Excessive force claim settled for $20,000.
Fee Awards
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Settlement calls for court to set
reasonable fee and cost award.
Plaintiff seeks $350,000 in fees and
$15,000 in costs.
City argues fees should be adjusted
downward for plaintiff’s limited success.
Court awards $200,000 in fees and all
costs.
Only explanation in fee award: Fees
excessive, but $200,000 justified by
counsel’s efforts in difficult case.
Did court abuse its discretion?
Fee Awards
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Yes.
Explanation of fee award
insufficient to allow appellate
review of reasons for award.
Attorney's fees awarded under 42
U.S.C. § 1988 must be adjusted
downward where the plaintiff has
obtained limited success on his
pleaded claims, and the result
does not confer a meaningful
public benefit.
Fee Awards
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Award reduction need not be
proportional to amount
sought/obtained; but must take that
ratio into consideration.
Must also consider public benefit:
Whether plaintiff affected a change in
policy, deterred widespread civil rights
violations. Also, public benefit of
deterring unconstitutional conduct by
police.
McCown v. City of Fontana (9th Cir.
2009) 565 F.3d 1097.
Termination of Public
Employees
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Temporary employee sues county,
alleging he was denied permanent status
and terminated twice due to his
complaints about purportedly being told
to perform illegal acts.
County contends he was denied
permanent status and terminated for
reasons unrelated to his complaints.
Employee alleges, among other claims,
termination in violation of public policy
(Tameny action) based on alleged
violation of whistleblower statutes.
Termination of Public
Employees


California Supreme Court has held
Government Code 815 bars
Tameny action against public
employee. (Miklosy v. Regents of
University of California (2008).)
Can employee assert the county is
vicariously liable under
Government Code 815.2 for its
employees’ wrongful termination
of him in violation of public policy?
Termination of Public
Employees
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No.
Tameny action can be asserted
only against employer, not
employees.
Since employees can’t be held
liable for it, entity can’t be held
vicariously liable for it.
Lloyd v. County of Los Angeles
(2009) 172 Cal.App.4th 320.
Public Employment
Discrimination
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A part-time court commissioner in his midsixties applies for a full-time commissioner’s
position when the part-time position is
eliminated.
When commissioner meets with presiding
judge, who is also chair of court’s executive
committee, he’s told committee is looking for
someone younger, maybe in their 40’s.
Presiding judge also makes similar comment to
bailiff.
Executive committee interviews several
candidates, including commissioner.
Ultimately picks 43-year-old (second youngest)
candidate. Committee states that choice is
due to relative performances in interview.
Public Employment
Discrimination
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
Commissioner sues superior
court under FEHA for age
discrimination.
Is the court immune from FEHA
suit under Government Code
820.2 (discretionary immunity
for employees) and 815.2(b)
(immunities of employees
extend to employer)?
Public Employment
Discrimination
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No.
Under 820.2, public employees
immune from FEHA liability when
hiring choice amounts to basic policy
decision (e.g., selecting chief
operating officer of agency); and
employer is immune under 815.2(b)
from vicarious immunity. (Caldwell v.
Montoya (1995) 10 Cal.4th 972.)
But FEHA also expressly provides that
public entity employers can be held
directly liable for discrimination.
Public Employment
Discrimination
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Legislature did not intend to allow courts to use
improper discrimination in exercising discretion
to select judges and commissioners.
Public entity employers are not immune from
FEHA liability even when choosing employees
amounts to policy choice.
Statements of presiding judge sufficient to
raise issue of fact on whether Executive
Committee rejected commissioner based on
age, even if presiding judge wasn’t involved in
final decision.
DeJung v. Superior Court (2008) 169
Cal.App.4th 533
Vicarious Liability
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A city fire department captain
allegedly allows on- and off-duty
firefighters to drive a fire truck to a
Porn Star Costume Ball and to use it
to “pick up women.”
Plaintiff reporter alleges that
firefighters sexually assaulted her in a
fire truck after inviting her inside.
Can a city be held vicariously liable for
a sexual assault allegedly committed
by on-duty firefighters?
Vicarious Liability
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No.
There was no causal nexus between
the assault and the firefighters’ work;
the firefighters’ alleged conduct was
not within the scope of employment.
Despite alleged city policy allowing
on-duty firefighters to go to bars, drink,
and pick up women, the firefighters
had no coercive authority over plaintiff,
and the firefighters were not engaged
in firefighting at time of alleged
misconduct.
Vicarious Liability
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
Majority sharply criticizes -- and
refuses to extend -- the Supreme
Court’s earlier landmark holding, in
Mary M. v. City of Los Angeles (1991)
54 Cal.3d 202 (police officer’s agency
employer could be vicariously liable
for the officer’s sex crime against
person officer detained on-duty, if
officer used status to commit crime).
M.P. v. City of Sacramento (3rd Cir.
2009) 2009 DJDAR 12981.
Government Liability Update
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Judy L. McKelvey
Daniel P. Barer
Pollak, Vida & Fisher