The Top 10

1. The Top 10 Top 10 Public Entity Liability Cases & Topics 2008-2009

2. Presenters • Judy L. McKelvey • Daniel P. Barer • Pollak, Vida & Fisher

3. Claims & Pleading • 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?

4. Claims & Pleading • 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).

5. Claims & Pleading • 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?

6. Claims & Pleading • 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.

7. Claims & Pleading • 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?

8. Claims & Pleading • 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.

9. Claims & Pleading • Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794.

10. Claims & Pleading • 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?

11. Claims & Pleading • 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)

12. School Liability – Special Education • 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.

13. School Law – Special Education • 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.

14. School Law -- Negligence • 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.

15. School Law -- Negligence • Can school district be held liable for driver negligence in allowing student to leave bus?

16. School Law -- Negligence • 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.

17. School Law -- Discrimination • 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.

18. School Law -- Discrimination • The court dismisses the Title IX cause of action. • Does Title IX preempt a section 1983 cause of action for school sex discrimination?

19. School Law -- Discrimination • 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.

20. Immunities -- Investigation • 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.

21. Immunities -- Investigation • City liable under POBRA. • Can the supervisor and subordinate be held liable for negligent supervision and intentional infliction of emotional distress?

22. Immunities -- Investigation • 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

23. Immunities – Federal Prosecutorial Immunity • 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.

24. Immunities – Federal Prosecutorial Immunity • 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?

25. Immunities – Federal Prosecutorial Immunity • 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.

26. Immunities – Federal Prosecution Immunities • 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. • At plaintiff’s parole hearing seven-and-a-half years into her sentence, the prosecutor recommended she be denied parole. • When plaintiff had served more than seven-and-a-half years, the court freed her on a habeas petition, based on the plea agreement.

27. Immunities – Federal Prosecution Immunities • 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?

28. Immunities – Federal Prosecution Immunities • 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.

29. Immunities – Federal Prosecution Immunities • 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 __.

30. Police Liability – State and Federal • 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.

31. Police Liability – State and Federal • State law wrongful death negligence claims dismissed. Refiled in state court. • Does the ruling on the federal claims bar the state law claims?

32. Police Liability – State and Federal • 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.

33. Police Liability – Special Relationship Duty • 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.

34. Police Liability – Special Relationship Duty • 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.

35. Police Liability – Special Relationship Duty • Can jailers be held liable for negligence for failure to protect inmates from foreseeable harm?

36. Police Liability – Special Relationship Duty • 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.”)

37. Police Liability – Special Relationship Duty • Can jailers be held liable under California law for cruel and unusual punishment?

38. Police Liability – Special Relationship Duty • 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.

39. Police Liability – Due Process and Deadly Force • 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?

40. Police Liability – Due Process and Deadly Force • 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 law-enforcement objective. • Even when officers create the rapidly-escalating 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.

41. Employee Speech • 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.

42. Employee Speech • 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?

43. Employee Speech • 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.

44. Employee Speech • 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.

45. Employee Speech 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.

46. Employee Speech 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?

47. Employee Speech • 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.

48. Employee Speech • 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.

49. Employee Speech • 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?

50. Employment Speech • 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.