February 2017 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 2016 update.
Defense and Indemnification
Indemnification of public employees. If a public entity defends an employee under a reservation of rights that includes the reservation of the right not to indemnify for acts or omissions because of actual malice, corruption, or actual fraud, then the employee must satisfy the requirements of Govt C §825 to be entitled to indemnification. See Chang v County of Los Angeles (2016) 1 CA5th 25, in §4.42.
Overview of Claim Procedures
Required allegation in complaint on claims presentation requirements. Plaintiff may allege compliance with the claims presentation requirement by including a general allegation that he or she timely complied with the claims statute. See Esparza v Kaweah Delta Dist. Hosp. (2016) 3 CA5th 547, in §5.17.
Preparation, Presentation, and Consideration of Claim
Presentation of claim. The California Victim Compensation and Government Claims Board has been renamed the California Victim Compensation Board. Government claims previously filed with the California Victim Compensation and Government Claims Board must now be filed with the Department of General Services.
Delayed discovery in childhood sexual abuse cases. The California Supreme Court has granted review in Rubenstein v Doe No. 1 (2016) (review granted June 15, 2016, S234269; superseded opinion at 245 CA4th 1037) to decide whether
The delayed discovery rule in CCP §340.1 applies to the accrual of a cause of action against a public entity for purposes of determining the time within which a claim under the Government Claims Act (Govt C §§810–996.6) must be made; and
Govt C §905(m) applies to childhood sexual abuse causes of action based on conduct occurring before January 1, 2009.
The alleged abuse does not need to be committed by the employees, volunteers, representatives, or agents of the public entity, but may be committed by fellow students. See A.M. v Ventura Unified Sch. Dist. (2016) 3 CA5th 1252, in §6.29.
Late Claim Proceedings; Tolling Limitation Period
Minority, incapacity, or death. The California Supreme Court has granted review in J.M. v Huntington Beach Union High Sch. Dist. (review granted Dec. 16, 2015, S230510; superseded opinion at 240 CA4th 1019) to decide whether a claimant must file a petition for relief from the Govt C §945.4 claim requirement, as set forth in Govt C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 §§7.39, 7.60.
Petitioning court for relief from Govt C §945.4. The extension of time for responding to mailed notices under Govt C §915.2(b) does not apply to Govt C §946.6(b). See City of San Diego v Superior Court (Dines) (2015) 244 CA4th 1, in §§7.62, 8.15, 8.17.
Filing petition with court. For a recent case discussing the split in authority over whether a federal district court has jurisdiction to hear a petition for relief from the claims statute, see Garza v Alvara (ED Cal, July 8, 2016, No. 1:15-cv-00234-DAD-SKO) 2016 US Dist Lexis 88923, in §7.69.
Bringing the Action
Affirmative duty imposed by statute. The California Supreme Court has granted review in Regents of Univ. of Cal. v Superior Court (Rosen) (review granted Jan. 20, 2016, S230568; superseded opinion at 240 CA4th 1296) to decide whether state public institutions of higher education and their employees have a duty of care to their students, while in the classroom, to warn them of and protect them from foreseeable acts of violence by fellow students. See §§8.55, 12.19B.
General Principles of Public Entity and Public Employee Liability
Damage to property from diverted or escaping waters. For a recent case discussing how the Department of Fish and Wildlife acted unreasonably by breaching a sandbar in a coastal langoon only when the water reached a level of eight to ten feet mean sea level, see Pacific Shores Prop. Owners Ass'n v Department of Fish & Wildlife (2016) 244 CA4th 12, in §§9.66, 9.68, 9.74.
Inverse condemnation. In Boxer v City of Beverly Hills (2016) 246 CA4th 1212, the court held that the impairment of a view caused by the growth of redwood trees was not a compensable intangible intrusion. See §9.70.
General Immunities of Public Entities and Employees
Malicious prosecution. In Garmon v County of Los Angeles (9th Cir 2016) 828 F3d 837, the court held that county defendants were not entitled to immunity under Govt C §821.6 because the claims against them were not malicious prosecution claims; the court expressly followed Sullivan v County of Los Angeles (1974) 12 C3d 710. See §10.44.
Liabilities and Immunities in Specific Functional Areas
Reporting elder abuse. For a recent case discussing how Welf & I C §15634 provided immunity for an elder residence official from a false arrest action, see Santos v Kisco Sr. Living, LLC (2016) 1 CA5th 862, in §11.57A.
Injury in course of pursuit by peace officer. An agency's vehicle pursuit policy is not "promulgated" within the meaning of Veh C §17004.7(b)(2) unless, at a minimum, all of its peace officers certify in writing that they have received, read, and understood the policy. See Morgan v Beaumont Police Dep't (2016) 246 CA4th 144, in §§11.142, 11.144.
Dangerous Condition of Public Property
Ownership or control by public entity. In Goddard v Department of Fish & Wildlife (2015) 243 CA4th 350, the court found that the Department of Fish and Wildlife had created a breach in a deteriorating dam to install a fish ladder that eventually washed away, but it did not have the power to remedy the dam remnant. See §§12.9, 12.12. In addition, the immunity of Govt C §831.2 applies when a combination of human activities and natural forces, particularly over a long time period, has produced a condition similar to those that appear in nature. See §12.83.
Assumption of risk. For a recent case discussing how primary assumption of risk barred an action by a skateboarder's father because his son's riding a skateboard without a helmet, down a hill, and on the wrong side of the street was recreational activity and not transportation, see Bertsch v Mammoth Community Water Dist. (2016) 247 CA4th 1201, in §12.59. For another recent case discussing primary assumption of risk, negligent supervision of students, and the duty of supervision under Ed C §44807, see Jimenez v Roseville City Sch. Dist. (2016) 247 CA4th 594, in §§9.10, 9.54, 12.59.
Natural conditions of unimproved property. In Alana M. v State (2016) 245 CA4th 1482, the court found that no artificial improvements or human conduct contributed to the danger of a tree falling on a tent in a nearby improved campsite. See §§12.82, 12.83.
Unpaved access roads and recreational trails. For a recent case discussing how immunity under Govt C §831.4 applied to a bike path through a university campus because it was used for recreation, even though it was used primarily for commuting, see Burgueno v Regents of Univ. of Cal. (2015) 243 CA4th 1052, in §12.88.
Federal Civil Rights Act
Procedural considerations in bringing federal action. Fourth Amendment claims based on unlawful search and seizure of evidence used in obtaining a conviction fall within the proscription of Heck v Humphrey (1994) 512 US 477, 114 S Ct 2364. See Lyall v City of Los Angeles (9th Cir 2015) 807 F3d 1178, in §13.15. However, Heck may bar an excessive force claim if the plaintiff pleads guilty to a charge of brandishing a weapon. See Fetters v County of Los Angeles (2016) 243 CA4th 825, in §13.15.
First Amendment rights. A public entity may be liable for terminating an employee based on perceived First Amendment activity, even though the perception was mistaken. See Heffernan v City of Paterson (2016) ___ US ___, 136 S Ct 1412, in §13.29.
Absolute immunity. In Brooks v Clark County (9th Cir 2016) 828 F3d 910, the court found that a courtroom marshall was not entitled to quasi-judicial immunity for using excessive force to remove a spectator from a courtroom in compliance with the judge's order. See §13.40.
Judges and prosecutors. A prosecutor may be entitled to absolute immunity for preparing and filing an application for a trial subpoena, but only entitled to qualified immunity for acting as a witness when signing the declaration in support of the application. See Garmon v County of Los Angeles (9th Cir 2016) 828 F3d 837, in §13.40.
Qualified immunity. In Mullenix v Luna (2015) ___ US ___, 136 S Ct 305, the court held that police officers were entitled to qualified immunity for the use of deadly force to terminate a pursuit of a fleeing vehicle when at the time of the incident no case law would have put officers on notice of the parameters of the use of force in that situation. See §13.47B.
Attorney fees. A plaintiff might be able to sidestep the rule of Buckhannon Bd. & Care Home, Inc. v West Va. Dep't of Health & Human Resources (2001) 532 US 598, 121 S Ct 1835, by obtaining a nominal damages award and then arguing that the defendant's voluntary cessation of conduct constituted a significant benefit sufficient to justify a fee award. See Klein v City of Laguna Beach (9th Cir 2016) 810 F3d 693, in §§13.51, 13.54.