Government Liability Update

Removing Crosswalk Markings Without Giving Statutory Notice Does Not Alone Establish Dangerous Condition of Public Property

pvandf — 2008-09-15T17:52:25-07:00

Vehicle Code section 21950.5 requires that before a public entity removes crosswalk markings, it must give the public the notice and opportunity to be heard prescribed in the statute. Some plaintiffs have argued that an entity's removal of markings without following this statutory procedure supports a cause of action under Government Code sections 830 and 835 for a dangerous condition of public property if an accident occurs on the unmarked crosswalk. The new case of Sun v. City of Oakland rejects that theory.

In Sun, the defendant city had built a "bulb out" (an extension of the curb at an intersection to reduce the amount of street the pedestrian must cross) at an intersection where the crosswalk was removed. The plaintiffs' decedent was crossing the intersection. One car approaching the intersection stopped to allow her to cross. Another swerved around that car, hit the pedestrian, and fled the scene.

The court ruled that the plaintiffs had not established any causal connection between the failure to follow the statute in removing the markings and the accident; and therefore had failed to establish that the removal created a dangerous condition to users with due care. Further, the immunity in Government Code section 830.8 for failure to provide street markings applied. Because the absence of markings was obvious to any sighted user, the removal of the markings did not create a hidden "trap" that might defeat the statutory immunity. Further, that another driver travelling in the same direction as the driver who hit the decedent stopped indicated that the removal did not cause the accident.

The court noted that the parties did not raise the issue of whether section 21950.5 created a "mandatory duty" whose violation might create liability under Government Code 815.6

California Supreme Court Bars Common-Law Wrongful Termination Suits Against Public Entities

pvandf — 2008-07-31T17:32:59-07:00

Miklosy v. Regents of the University of California , decided today, holds that "Tameny" suits for wrongful termination in violation of public policy -- which courts have often allowed to be asserted against public entity employers -- are barred by Government Code section 815, which bars common-law causes of action against public entities.

Plaintiffs cannot get around this bar by suing individual employees, the court holds. Tameny causes of action can only be asserted against employers, not supervisors or other employees.

The court also strictly interpreted provisions in the whistleblowers' protection statutes that bar lawsuits by employees of the Regents of the University of California against the Regents if the Regents timely resolve the employee's administrative complaint.

Two Ninth Circuit Cases on Probable Cause

pvandf — 2008-06-27T19:22:00-07:00

In Cuevas v. de Roco, published today, the Ninth Circuit held that police officers who enter a home in search of a parolee, without a warrant and without probable cause that the parolee is there, violate the Fourth Amendment rights of the home's inhabitants. The initial intrusion in Cuevas occurred when a plainclothes parole officer, accompanied by sheriff's deputies, stuck his foot in the home's door as the homeowner attempted to close it, thinking that the officer was a home-invasion robber. Deputies who subsequently entered in response to the female homeowner's screams did not violate the owners' due process rights; they had probable cause and exigent circumstances that permitted them to enter without a warrant.

In Fogel v. Collins, also published today, the Ninth Circuit held that police officers violated the First Amendment rights of a van owner when they arrested him and impounded his van; but that the officers were entitled to qualified immunity. The van was emblazoned with provocative political and satirical statements, including, one stating he was a suicide bomber communist terrorist. The officers searched the van for a bomb, did not find one, and did not believe he had one. They nevertheless arrested the owner for threatening a crime involving great bodily injury; for false report of a hidden bomb; and for use of offensive language in a public place. The Ninth Circuit ruled that political rhetoric or hyperbole, particularly when not aimed at a particular person, is protected speech. The Ninth Circuit declined to rule whether an objective or subjective standard applied to judging the speech protected, because it found the speech protected under either standard. Anyone who saw the van, the Ninth Circuit found, would not have taken the slogans on it seriously. But it found the officers entitled to qualified immunity, because there was no clearly-established law at the time on whether post-9/11 satiric bomb threats were protected by the First Amendment.

Responses to Request for Admission Control Standard of Care Instruction for Police Auto Accident Case

pvandf — 2008-06-26T09:30:30-07:00

Monroy v. City of Los Angeles holds that a court committed reversible error by instructing the jury in a police car-civilian car collision case that Vehicle Code section 21055 governed the standard of care of officers speeding while responding to a call. The city had admitted in response to requests for admissions that the call was a Code 2 (urgent) but not a Code 3 (emergency); and that the driver was subject to the Vehicle Code while driving. Vehicle Code section 21055 reduces the degree of care an officer must exercise, and exempts the officer from negligence per se for violating provisions of the Vehicle Code -- but only if the officer is responding to an emergency. The RFA admissions were binding.

Search of Employees' Text Messages May Violate Federal and State Constitutions

pvandf — 2008-06-22T18:56:03-07:00

Quon v. Arch Wireless, a 9th Circuit case published on June 18, 2008, ruled that if a public employee has an expectation of privacy in text messages made from work-issued equipment (such as text pagers), an employer search of the messages' contents may violate the Fourth Amendment and the privacy protection provision of the California Constitution.

The police department that employed the plaintiff in Quon had an official policy advising employees that they could not use text messages for non-business purposes; but the plaintiff's supervisor had an informal policy that the department would not audit the messages as long as the employees paid for any use over the established limit of characters per month. The court ruled that the informal policy created an expectation of privacy; and that a department review of the text messages was an overbroad search and seizure -- violating the officer's state and federal constitutional rights. Further, since the information used would not have led to administrative or criminal prosecution against the officer, Government Code section 821.6 did not immunize the department or its employees from the state law claim.

New Intersection-Accident Case Sets Forth Procedural and Substantive Rules for Summary Judgment Oppositions, Liability, Design Immunity, and CCP 1038 Fee Denials

pvandf — 2008-06-13T18:31:12-07:00

Laabs v. City of Victorville, decided today by California's Fourth District Court of Appeal, Division 2, includes the following holdings important to California governmental entity liability in general, and dangerous-condition cases in particular:

Any theory of public entity liability asserted in opposition to a defense summary judgment motion must be present (or be fairly reflected in) the complaint; it cannot appear for the first time in the opposition papers. The same rules that bar variance between a plaintiff's claim and the plaintiff's later complaint apply. If the plaintiff wants to assert a new theory, the plaintiff must seek leave to amend the complaint either before the summary judgment hearing, or at the hearing itself; it cannot "amend" the complaint by simply raising the new issue in the opposition.
In an intersection accident where one entity owned only the northbound lane and another only the southbound lane, both parties can be liable for an accident in the northbound lane if one of the parties was headed toward that lane, provided there is evidence that both had the ability to change or control the other's property.
If a defendant is moving for summary judgment based on design immunity, the defendant can use the plaintiff's expert's declaration that the roadway design was reasonable to supply substantial evidence that the design was reasonable.
A CCP 1038 motion for costs made after summary judgment is granted, but before the judgment is signed and entered, is timely. The motion cannot be made after appeal.
Before denying a CCP 1038 motion, a trial court must find that the action was brought with both subjective good faith and objective reasonable cause. But if the court's order is silent on those findings, the appellate court will presume that the court made those findings.

U.S. Supreme Court Bars "Class of One" Claims by Public Employees

pvandf — 2008-06-13T18:13:08-07:00

In Engquist v. Oregon Dept. of Agriculture, decided June 9, 2008, the U.S. Supreme Court held that "class of one" equal-protection claims were incompatible with public employment. A "class of one" claim is an assertion that a public entity has treated the plaintiff different from other similarly-situated persons; and that there is no rational basis for the difference. If the facts show that kind of irrational treatment, the plaintiff may be able to assert violation of her equal protection rights, even if the discrimination is not based on her race, sex, or other "suspect" classification. Engquist holds that such claims by public employees against public employees are improper, in light of the policy against constitutionalizing employment grievances.

California Supreme Court Interprets Heck v. Humphrey

pvandf — 2008-05-19T18:28:47-07:00

The case of Yount v. City of Sacramento arose out of an incident in which a police officer, who was attempting to subdue an intoxicated suspect resisting arrest, attempted to shoot the suspect with a Taser -- but accidently drew the officer's service pistol and shot the suspect in the buttock. The suspect pled no contest to obstruction of an officer's performance of duties (California Penal Code section 148.) He then sued the officers under 42 USC section 1983 for violation of his fourth amendment right to be free from excessive force; and under state law for battery.

The California Supreme Court addressed whether Heck v. Humphrey (1994) 512 U.S. 477 barred the plaintiff's section 1983 claim; and whether analogous state law barred his battery claim. Heck holds that a party cannot collaterally attack a criminal conviction by a civil lawsuit. Therefore, a section 1983 suit against police by a plaintiff who has been convicted of a crime is barred if a judgment in the plaintiff's favor would require negating a basis for the conviction.

The court concluded that plaintiff's plea of no contest to the obstruction charge -- combined with eyewitness testimony concerning the events leading up to the arrest -- triggered Heck, barring him from arguing in the civil suit that the police violated his fourth amendment rights just by using force against him. That was because the crime of obstructing an officer justifies a reasonable use of force by the officer. But to the extent the plaintiff sued the officers for using excessive force -- specifically, unwarranted lethal force -- the suit survived Heck. The same principles applied to the state law battery claim.

The court declined to decide whether an officer's accidental use of lethal force -- as is alleged here -- would suffice to support a section 1983 or battery claim, both of which require intentional misconduct (or at least reckless disregard for another's rights).

California Supreme Court: City Does Not Violate Constitution by Seeking Injunction to Enforce Ordinance Later Found Unconstitutional

pvandf — 2008-04-24T17:30:18-07:00

In Manta Management Corporation v. City of San Bernardino, filed April 24, 2008, a unanimous California Supreme Court held that municipalities generally cannot be held liable under 42 U.S.C. section 1983 for seeking either an injunction to enforce an ordinance, or a writ of supersedeas from a court of appeal seeking to preserve an injunction during an appeal -- even if the ordinance itself is later determined to be unconstitutional. The ordinance at issue in this case was a zoning ordinance regulating adult businesses. Analogizing the case to other decisions in which defendants were sued for seeking relief from courts (such as criminal prosecutions), the court held that a judge's decision that good cause exists for the injunction or stay is a superseding cause of the harm; and thus breaks the chain of causation between the municipality's act and the plaintiff's injury. The court emphasized that it was not basing its decision on immunity principles. As with similar cases, the court ruled, the municipality can be held liable if it brought about the judge's decision by pressuring the judge to rule its way; or by making material misrepresentations to the judge. The court held that the misrepresentations do not have to be intentional to trigger the exception.

Social Worker Immune from Liability for Conducting Deficient Investigation Before Returning Child to Parent

pvandf — 2008-04-01T19:41:57-07:00

in Ortega v. Sacramento County Department of Health and Human Services , filed today, the Third District Court of Appeal ruled that a social worker was immune from liability for returning an 11-year-old girl to her father, who had a drug problem. Four days after custody was returned, the father stabbed the child. The court concluded that even though, in its opinion, the social worker's investigation was "lousy," the worker was immune under Government Code section 820.2 for her discretionary decision to return the child. The worker's only mandatory duties were to investigate before returning the child -- and the worker did so.