February 2018 Update
The current update includes changes that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2017 update.
Representation of Claimant or Defendant
Time limits under Government Claims Act. A plaintiff suing an out-of-state public entity in California may still have to comply with the claim presentation requirements of that state before beginning the action. See Oregon State Univ. v Superior Court (Sutherland) (2017) 16 CA5th 1180 in §§2.3, 5.14.
Overview of Claim Procedures
Action for recovery of property or money. For a recent case discussing an action to recover property seized in an invalid forfeiture action, see Ramirez v Tulare County Dist. Attorney’s Office (2017) 9 CA5th 911 in §5.51.
Preparation, Presentation, and Consideration of Claim
Date of accrual. Under Govt C §901, “the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable” is the date on which the cause of action became actionable. See City of Pasadena v Superior Court (Jauregui) (2017) 12 CA5th 1340 in §6.16.
Delayed discovery in childhood sexual abuse cases. For conduct occurring before January 1, 2009, a timely claim is required to maintain an action for negligence arising out of sexual abuse, notwithstanding CCP §340.1, which extends the time during which an individual may bring an action for childhood sexual abuse. See Rubenstein v Doe No. 1 (2017) 3 C5th 903 in §§6.16, 6.29.
Late Claim Proceedings; Tolling Limitation Period
Petitioning court for relief from Govt C §945.4. A claimant must file a petition for relief from the Govt C §945.4 claim requirement, as set forth in Govt C §946.6, if he or she submitted a timely application for leave to present a late claim under Govt C §911.6(b)(2) and was a minor at all relevant times. See J.M. v Huntington Beach Union High Sch. Dist. (2017) 2 C5th 648 in §§7.39, 7.60, 8.35.
Bringing the Action
Discovery issues. For a recent case discussing a party’s right to obtain documents under the California Public Records Act (CPRA) (Govt C §§6250–6276.48), see Los Angeles County Bd. of Supervisors v Superior Court (ACLU of S. Cal.) (2016) 2 C5th 282 in §8.64.
General Principles of Public Entity and Public Employee Liability
Inverse condemnation. In Mercury Cas. Co. v City of Pasadena (2017) 14 CA5th 917, the court held that a tree constitutes a work of public improvement if it is deliberately planted by or at the direction of a government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road. See §9.63.
Government land use ordinance or regulatory decisions. An airport land use compatibility plan that designated properties as being within a safety zone carrying specific limiting recommendations for compatible land uses was not a regulatory taking. See Dryden Oaks, LLC v San Diego County Reg’l Airport Auth. (2017) 16 CA5th 383 in §9.72.
Nuisance. For a recent case discussing causation and maintaining a nuisance action, see Citizens for Odor Nuisance Abatement v City of San Diego (2017) 8 CA5th 350 in §9.80.
Contractual liability. “Promissory estoppel cannot be asserted against a public entity to bypass rules that require contracts to be in writing or be put out for bids, rules which reflect a public policy to preclude oral contracts or other exposures to liability, including claims of promissory estoppel.” See Ponte v County of Calaveras (2017) 14 CA5th 551 in §9.84.
General Immunities of Public Entities and Employees
Exception to immunity under Govt C §820.2. The immunity of juvenile court social workers, child protection workers, and other public employees under Govt C §820.2 does not extend to acts of perjury, fabrication of evidence, failure to disclose known exculpatory evidence, or obtaining testimony by duress, if committed with malice. See Gabrielle A. v County of Orange (2017) 10 CA5th 1268 (discussing Govt C §820.21) in §§10.22, 10.32A.
Misrepresentation. In Finch Aerospace Corp. v City of San Diego (2017) 8 CA5th 1248, the court found that immunity under Govt C §818.8 does not apply to causes of action for slander of title. See §§10.38, 10.40.
Liabilities and Immunities in Specific Functional Areas
Injuries to prisoners. A person other than a prisoner, such as a visitor to a jail or prison, may recover for injuries resulting from the dangerous condition of public property. The Bane Civil Rights Act (CC §52.1) does not create any exceptions to Govt C §844.6(a)(2). See Towery v State (2017) 14 CA5th 226 in §11.27. This case is also cited in §§9.4, 9.81, 10.5.
Dangerous condition of fire protection equipment or facilities. The California Supreme Court has granted review in Quigley v Garden Valley Fire Protection Dist. (review granted Aug. 9, 2017, S242250; superseded opinion at 10 CA5th 1135) to determine (1) whether defendants forfeited the immunity provided under Govt C §850.4 for governmental entities involved in firefighting by failing to timely raise the defense before trial and (2) whether §850.4 applies to immunize defendants in an action for personal injuries allegedly caused by a dangerous condition of property being used as a firefighting facility when plaintiff’s injuries did not result from a condition of that property that rendered it inoperative, useless, or otherwise less effective in aiding defendant’s firefighting efforts. See §§8.58, 10.4, 11.69, 11.72, 12.139.
Confinement of mental patients and addicts. In Julian v Mission Community Hosp. (2017) 11 CA5th 360, the court found that there was no private cause of action for falsely reporting probable cause under Welf & I C §5150. See §11.110.
Injury in course of pursuit by peace officer. The California Supreme Court has granted review in Ramirez v City of Gardena (review granted Nov. 1, 2017, S244549; superseded opinion at 14 CA5th 811). The issue before the court is whether the immunity provided by Veh C §17004.7 is available to a public agency only if all peace officers certify in writing that they have received, read, and understood the agency’s vehicle pursuit policy. See Ramirez v City of Gardena (2017) 14 CA5th 811 in §11.142.
Dangerous Condition of Public Property
Causation. The doctrine of proximate cause does not require that the very injury that occurred must have been foreseeable: it is only necessary that the general character of the event or harm be foreseeable. See Kesner v Superior Court (Pneumo Abex, LLC) (2016) 1 C5th 1132 in §12.40.
Defenses and immunities. Civil Code §846 does not apply to public entities. See PG&E v Superior Court (Rowe) (2017) 10 CA5th 563 in §12.57.
Design immunity. In Gonzales v City of Atwater (2016) 6 CA5th 929, the court found that proof of how a decision is made is not necessary to establish the exercise of discretionary authority; the design for the installation of the traffic signals was reasonable. See §12.70.
Natural conditions of unimproved property. For a recent case discussing whether land where a diseased tree fell was developed or undeveloped, see County of San Mateo v Superior Court (Rowe) (2017) 13 CA5th 724 in §§12.82, 12.83.
Unpaved access roads and recreational trails. Immunity under Govt C §831.4 extends to injuries arising from the location or design of the trail. Leyva v Crockett & Co., Inc. (2017) 7 CA5th 1105 (plaintiff on easement granted to city struck by stray golf ball). However, the immunity may not apply if the dangerous condition exists independently of the trail. Toeppe v City of San Diego (2017) 13 CA5th 921 (branch from eucalyptus tree that fell on plaintiff was not part of trail). In Garcia v American Golf Corp. (2017) 11 CA5th 532, the court found that a public golf course cannot assert the trail immunity defense if “(1) the golf course is adjacent to a trail abutting a public street; (2) the golf course is a commercially operated, revenue-generating enterprise; (3) the golf course has a dangerous condition that exposes people outside it to a risk of harm from third parties hitting errant golf balls; and (4) the dangerous condition of the golf course caused harm to a user of the trail.” See §12.88.
Recreational activities. Civil Code §846 shields landowners from liability when recreational users cause injury to nonrecreational plaintiffs outside premises, despite allegations that landowners’ negligence contributed to the injuries. See Wang v Nibbelink (2016) 4 CA5th 1 in §12.92.
Vicarious liability for independent contractor torts. In Evan v Hood Corp. (2016) 5 CA5th 1022, the court found that when a hirer delegates work to a contractor, it does not delegate the tort law duty owed to its own employees. See §12.128.
Federal Civil Rights Act
Procedural considerations in bringing federal action. When excessive force by a police officer is a defense to the underlying criminal charge, the plaintiff’s conviction will foreclose a 42 USC §1983 claim under Heck v Humphrey (1994) 512 US 477, 114 S Ct 2364, unless and until the conviction is reversed. See Baranchik v Fizulich (2017) 10 CA5th 1210 in §13.15.
First Amendment rights. The First Amendment prohibits government “sponsorship, financial support, and active involvement” in religion or impairment of the free exercise of religious belief. See Trinity Lutheran Church of Columbia v Comer (2017) ___ US ___, 137 S Ct 2012, in §13.29. In Brandon v Maricopa County (9th Cir 2017) 849 F3d 837, the judgment for a government attorney who suffered adverse consequences for commenting on the settlement of a case she defended was reversed; evidence established that she was “speaking as a lawyer representing the county as her public statements touched on the very matter on which she represented the county.” See §13.29.
Fourth Amendment rights. In County of Los Angeles v Mendez (2017) ___ US ___, 137 S Ct 1539, the United States Supreme Court struck down the Ninth Circuit’s “provocation rule,” which allowed an officer to be held liable for use of force that would be deemed reasonable under the factors identified in Graham v Connor (1989) 490 US 386, 109 S Ct 1865. See §13.30.
Qualified immunity. Public employees, such as off-duty police officers, are not entitled to qualified immunity when serving private interests, even when they are acting under color of state law. See Bracken v Okura (9th Cir 2017) 869 F3d 771 in §13.45. In Hardwick v County of Orange (9th Cir 2017) 844 F3d 1112, the court found that there was no qualified immunity for a social worker who was alleged to have falsified evidence and committed perjury in a child abuse investigation, because the conduct was so clearly illegal and improper. See §13.47B. In White v Pauly (2017) ___ US ___, 137 S Ct 548, the Supreme Court found that a police officer was entitled to qualified immunity for the use of force when no specific case addressed the “unique set of facts and circumstances” of an officer’s late arrival at the scene and reliance on information from other officers. See §13.47B.
The issue of whether the law was clearly established always remains one of law for the court and may not be submitted to the jury. See Morales v Fry (9th Cir, Oct. 16, 2017, No. 14–35944) 2017 US App Lexis 20190 in §13.47B. To preserve the defense of qualified immunity for later review, a defendant must make a proper motion for judgment at the close of evidence and again by posttrial motion under Fed R Civ P 50, or the defense is waived. See Lam v City of San Jose (9th Cir 2017) 869 F3d 1077 in §13.47B. The plaintiff in a 42 USC §1983 action has the burden of overcoming a claim of qualified immunity by showing that the right in question was clearly established at the time of the conduct in question. See Shafer v County of Santa Barbara (9th Cir 2017) 868 F3d 1110 in §13.48.