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California Government Tort Liability Practice

Provides in-depth procedural and substantive guidance on claims against public entities or employees based on the California Government Claims Act.

Provides in-depth procedural and substantive guidance on claims against public entities or employees based on the California Government Claims Act.

  • Representing claimants, public entities, and public employees
  • Defense and indemnification
  • Claim procedures: preparation, presentation, and consideration of claim
  • Late claim proceedings; tolling limitation period
  • Bringing the action
  • Principles of public entity and public employee liability
  • General and specific immunities of public entities and employees
  • Dangerous condition of public property
  • Claims under the Federal Civil Rights Act (§1983)
  • Government Claims Act, including Van Alstyne’s notes and comments
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Provides in-depth procedural and substantive guidance on claims against public entities or employees based on the California Government Claims Act.

  • Representing claimants, public entities, and public employees
  • Defense and indemnification
  • Claim procedures: preparation, presentation, and consideration of claim
  • Late claim proceedings; tolling limitation period
  • Bringing the action
  • Principles of public entity and public employee liability
  • General and specific immunities of public entities and employees
  • Dangerous condition of public property
  • Claims under the Federal Civil Rights Act (§1983)
  • Government Claims Act, including Van Alstyne’s notes and comments

1

Overview of the Government Claims Act

Girard Fisher

Robert J. Waldsmith

  • I. SCOPE OF BOOK AND THIS CHAPTER 1.1
  • II. THE GOVERNMENT CLAIMS ACT: AN OVERVIEW
    • A. Summary of Contents of the Act 1.2
    • B. Act Is Constitutional 1.3
    • C. Actions Against Public Employees
      • 1. Public Employee Liability Under the Act 1.4
      • 2. Public Entity Defense and Indemnification of Public Employee 1.5
    • D. Public Entity Liability Under the Act
      • 1. No Common Law Liability 1.6
      • 2. Government Claims Act Liabilities
        • a. Vicarious Liability 1.7
        • b. Liability for Independent Contractor's Act or Omission 1.8
        • c. Liability for Breach of Mandatory Duty Imposed by Enactment 1.9
        • d. Dangerous Condition Liability 1.10
      • 3. Statutory Liabilities Outside the Act 1.11
      • 4. Effect on Contractual Liability and Other Remedies 1.12
    • E. Immunities and Defenses
      • 1. Government Claims Act Immunities
        • a. General Principles of Immunity
          • (1) Public Entity Immunity 1.13
          • (2) Public Employee Immunity 1.14
        • b. Specific Immunities Within the Act 1.15
      • 2. Application of Government Claims Act Immunities to Statutory Liability Outside the Act 1.16
      • 3. Application of Immunities and Defenses Outside the Act to Government Claims Act Liabilities 1.17
        • a. Examples of Defenses Outside the Act Asserted by Public Entity 1.18
        • b. Examples of Defenses Outside the Act Asserted by Public Employee 1.19
    • F. Damages Awardable Under the Act
      • 1. Damages for "Injury" 1.20
      • 2. Availability of Punitive Damages 1.21
    • G. Claims Presentation Statutes, Statutes of Limitation, and Late Claim Relief 1.22
    • H. Posttrial Proceedings and Funding of Tort Liabilities 1.23
  • III. HISTORICAL ORIGINS OF GOVERNMENT CLAIMS ACT 1.24
    • A. Governmental Immunity Doctrine Before the Act 1.25
    • B. Immunity Before the Act Limited to Tort Damages 1.26
    • C. Exceptions to Governmental Tort Immunity Before the Act
      • 1. Judicially Recognized Exceptions Before the Act 1.27
      • 2. Statutory Liability Before the Act 1.28
    • D. Liability and Immunity of Public Officers Before the Act
      • 1. Personal Liabilities 1.29
      • 2. Discretionary Immunity 1.30
      • 3. Absence of Vicarious Liability 1.31
      • 4. Privileged Trespass 1.32
      • 5. Employee Indemnification Provisions [Deleted] 1.33
      • 6. Statutory Immunities of Public Officers 1.34
    • E. Claims Procedures Before the Act 1.35
      • 1. Compliance Was Mandatory 1.36
      • 2. Doctrine of Substantial Compliance 1.37
      • 3. Doctrine of Estoppel 1.37A
    • F. Indemnification and Defense of Public Employees Before the Act 1.38
    • G. Judicial Revolution: Muskopf and Lipman Cases Abolished Governmental Immunity Doctrine 1.39
    • H. Legislative Response: Government Claims Act 1.40
      • 1. Law Revision Commission Reports and Recommendations 1.41
      • 2. Law Revision Commission Comments 1.42
      • 3. Use of Law Revision Commission Reports, Recommendations, and Comments to Determine Legislative Intent 1.43
      • 4. Legislative Comments 1.44
      • 5. Components of Act Enacted Separately 1.45
  • IV. COURTS' NARROW OR BROAD CONSTRUCTION OF GOVERNMENT CLAIMS ACT 1.46
    • A. Origins of Differing Interpretations 1.47
    • B. May Depend on Provisions of Government Claims Act Being Interpreted 1.48
    • C. Factors Considered for Interpretation 1.49
    • D. Examples of Cases Finding Liability, Narrowly Interpreting Scope of Immunities 1.50
    • E. Examples of Cases Finding No Liability, Broadly Interpreting Scope of Immunities 1.51

2

Representation of Claimant or Defendant

Ralph L. Jacobson

Robert J. Waldsmith

  • I. FACTORS TO CONSIDER BEFORE AGREEING TO REPRESENT CLAIMANT
    • A. Ascertain Facts 2.1
      • 1. Possible Conflicts of Interest 2.2
      • 2. Time Limits Under Government Claims Act 2.3
        • a. If Claim Is at Risk of Being Late 2.4
        • b. If Claim Is Already Late 2.5
      • 3. Contacting Witnesses
        • a. Witnesses Represented by Counsel 2.6
        • b. Nonparty Private Entity Witnesses 2.7
        • c. Public Entity Witnesses 2.8
        • d. Determining Witness's Status 2.9
        • e. Interviewing Witnesses and Obtaining Statements 2.10
          • (1) Investigators 2.11
          • (2) Attorneys 2.12
      • 4. Retaining Experts 2.13
    • B. Determine Applicability of Government Claims Act
      • 1. Ascertain Whether Potential Defendants Are Public Entities or Employees Under the Act 2.14
      • 2. Ascertain Liability Under the Act 2.15
      • 3. Consider Applicable Immunities and Defenses 2.16
    • C. Consider Effect of Proposition 51 on Selecting Defendants 2.17
    • D. Consider Causes of Action Not Involving Government Claims Act 2.18
    • E. Consider Likely Damage Award 2.19
    • F. Consider Likelihood of Settlement 2.20
    • G. Consider Costs of Proving Case 2.21
    • H. Consider Claimant's Potential Liability for Defense Costs If Action Not Brought in Good Faith or With Reasonable Cause 2.22
  • II. AGREEING TO REPRESENT
    • A. Discuss Realistic Expectations About Outcome 2.23
    • B. Inform Claimant of Realistic Timetable and Obligations 2.24
    • C. Attorney Fee Agreements
      • 1. Contingency Fee Agreements 2.25
        • a. Requirements of Contingency Fee Contract 2.26
        • b. Tailoring Contract for Possibility of Other Than Lump-Sum Cash Payment 2.27
        • c. Contingency Fee Contracts in Actions Against Health Care Providers 2.28
      • 2. Noncontingency Fee Agreements 2.29
    • D. Inform Client of His or Her Obligations [Deleted] 2.30
    • E. Inform Client of Counsel's Next Anticipated Contact 2.31
    • F. Advise Client Not to Discuss Claim With Others 2.32
  • III. DECLINING TO REPRESENT
    • A. Communicating With Claimant in Writing 2.33
    • B. Counsel Should Not Provide Client With Opinion on Merits of Case 2.34
    • C. Discuss Time Limits 2.35
    • D. Referring Client to Other Attorneys 2.36
    • E. Send Letter Declining to Undertake Representation 2.37
  • IV. SELECTED OFFICE MANAGEMENT CONSIDERATIONS
    • A. Calendaring 2.38
      • 1. Minimum Requirements of Calendaring System Under Government Claims Act 2.39
      • 2. Date When Suit Must Be Filed 2.40
    • B. Tickler or Other System [Deleted] 2.41
    • C. Filing Systems 2.42
    • D. Recording Expenses 2.43
    • E. Supervision of Office Personnel 2.44
  • V. DEFENSE PERSPECTIVE
    • A. Counsel Representing Public Entities and Public Employees 2.45
    • B. Preliminary Considerations in Evaluating Cases 2.46
    • C. Determining Conflict of Interest 2.47
    • D. Fee Agreements [Deleted] 2.48
  • VI. FORMS: LETTERS DECLINING TO UNDERTAKE REPRESENTATION
    • A. Form: When Period to Present Claim Has Not Elapsed 2.49
    • B. Form: When Counsel Has Been Consulted After Claims Presentation Period Has Elapsed 2.50

3

Identifying Public Entity and Public Employee Defendants

Robert J. Waldsmith

Ralph L. Jacobson

Andrew R. Gillin

Luke Ellis

  • I. IDENTIFYING PUBLIC ENTITY DEFENDANTS
    • A. Public Entity Defined 3.1
    • B. Using Roster of Public Agencies 3.2
    • C. Stationery and Identity Card Requirement of Govt C §7530 3.3
    • D. Independent Public Entity or Subsidiary?
      • 1. Importance 3.4
      • 2. Criteria 3.5
      • 3. Examples of Subsidiaries 3.6
  • II. IDENTIFYING PUBLIC EMPLOYEE DEFENDANTS
    • A. Definition of Public Employee 3.7
      • 1. "Servants" and "Agents" 3.8
      • 2. Judicial Officers Included 3.9
      • 3. Compensation Not Material 3.10
      • 4. Independent Contractors Excluded 3.11
    • B. Examples of Public Employees
      • 1. Under Case Law 3.12
      • 2. By Statute 3.13
    • C. Ascertaining Appropriate Public Entity Employer in Particular Situations
      • 1. Court Personnel 3.14
        • a. Trial Judges Are Employees of State 3.15
        • b. Referee Paid by Parties Not County Employees 3.16
        • c. Small Claims Court Advisers Not County Employees 3.17
        • d. Other Court Personnel Generally Considered County Employees 3.18
      • 2. Ex Officio Personnel 3.19
    • D. Determining Existence of Employment 3.20

4

Defense and Indemnification

Girard Fisher

Robert J. Waldsmith

  • I. OVERVIEW
    • A. Public Entity's General Duty to Defend and Indemnify Employee 4.1
    • B. Employee Defense and Indemnification Not Limited to Government Claims Act Liabilities 4.2
    • C. Employee Defense Provisions 4.3
    • D. Employee Indemnification Provisions 4.4
    • E. Impact of Employee Indemnification on Satisfaction of Judgment 4.5
    • F. Other Sources of Defense and Indemnification
      • 1. Contracts and Memorandums of Understanding 4.6
      • 2. Enactments 4.7
      • 3. Insurance and Joint Powers Agencies Coverage 4.8
  • II. DEFENSE OF PUBLIC EMPLOYEES 4.9
    • A. Public Entity's Mandatory Duty to Provide Defense 4.10
      • 1. Actions Subject to Duty 4.11
      • 2. Methods of Providing Defense 4.12
      • 3. Included Expenses 4.13
      • 4. Employee's Request for Defense From Public Entity 4.14
      • 5. Public Entity's Response to Employee's Request for Defense 4.15
        • a. Unconditional Defense 4.16
        • b. Refusal of Defense on Entity's Determination of No Obligation 4.17
        • c. Defense Pursuant to Reservation of Rights 4.18
      • 6. General Rule That Entity Cannot Recover Costs of Defense 4.19
      • 7. Exceptions to Rule Against Recovery of Costs 4.20
      • 8. Constitutional Debt Limitation Inapplicable 4.21
    • B. Exceptions to Entity's Mandatory Duty to Provide Defense 4.22
      • 1. Outside Scope of Employment; Fraud, Corruption, or Malice 4.23
      • 2. Specific Conflict of Interest 4.24
      • 3. Entity's Action Against Its Employee 4.25
    • C. Proceedings in Which Entity Has Discretion to Defend
      • 1. Overview 4.26
      • 2. Disciplinary Proceedings 4.27
      • 3. Administrative Proceedings 4.28
      • 4. Criminal Proceedings 4.29
    • D. Employee's Rights When Entity Refuses Defense 4.30
    • E. Conflicts of Interest and Independent Counsel
      • 1. Overview 4.31
      • 2. Circumstances That Create Conflicts 4.32
      • 3. When Entity Refuses Employee's Defense 4.33
      • 4. Defense and Indemnification Without a Reservation of Rights 4.34
      • 5. Defense of Employee Pursuant to Reservation of Rights and Written Informed Consent 4.35
      • 6. Right to Independent Counsel 4.36
      • 7. Selection of Independent Counsel 4.37
  • III. INDEMNIFICATION OF PUBLIC EMPLOYEES
    • A. Public Entity's General Duty to Indemnify Employees 4.38
    • B. When Public Entity Provides Unconditional Defense 4.39
    • C. When Request Made But Public Entity Elects Not to Provide Defense 4.40
    • D. When Defense Provided Under Reservation of Rights 4.41
    • E. When Judgment Paid by Employee 4.42
    • F. Indemnification for Punitive Damages 4.43
    • G. No Duty to Indemnify When Elected Official Unlawfully Intervenes in or Influences Judicial Proceeding or Is Convicted of Specified Felonies 4.44
    • H. When Duty to Indemnify Conflicts With Memorandum of Understanding 4.45
  • IV. ENTITY'S RIGHT TO INDEMNIFICATION FROM EMPLOYEE
    • A. General Rule 4.46
    • B. Exceptions to General Rule
      • 1. Employee's Misconduct Caused by Fraud, Corruption, or Actual Malice; Employee's Failure or Refusal to Conduct Defense in Good Faith 4.47
      • 2. Intentional Wrongdoing of Elected Official 4.48
  • V. REIMBURSEMENT FOR WORKERS' COMPENSATION BENEFITS 4.49
    • A. "Firefighter's Rule" 4.50
    • B. Exceptions to Firefighter's Rule 4.51
  • VI. INDEMNIFICATION BETWEEN ENTITY AND THIRD PARTIES
    • A. Right to Recovery Under Comparative Equitable Indemnity 4.52
    • B. Right to Express Contractual Indemnity 4.53
    • C. Right to Equitable Indemnity 4.53A
    • D. Effect of Proposition 51 4.54
      • 1. Comparative Equitable Indemnity Limited Under Proposition 51 4.54A
      • 2. Pre-Verdict Settlements 4.54B
      • 3. Post-Verdict Settlements 4.54C
    • E. Public Entity's Liability to Third Party for Indemnity 4.55
  • VII. JOINT AND SEVERAL LIABILITY WHEN CONTRACTUAL AGREEMENT EXISTS
    • A. Applicable Rules 4.56
      • 1. Agreements Creating Joint and Several Liability 4.56A
      • 2. Joint Powers Agreements 4.56B
    • B. No Tort Liability Under Third Party Beneficiary Theory 4.57

5

Overview of Claim Procedures

Girard Fisher

Robert C. Ceccon

Daniel P. Barer

  • I. INTRODUCTION 5.1
    • A. Development of Uniform Claims Procedures 5.2
    • B. Elimination of Procedural Barriers to Liability
      • 1. General Consent to Suit 5.3
      • 2. Authority to Respond in Damages 5.4
  • II. CLAIMS AGAINST PUBLIC ENTITIES
    • A. General Features of Claims Procedures
      • 1. Written Claim Must First Be Presented 5.5
      • 2. Purpose of Claims Presentation Requirements 5.6
      • 3. Claims Must Be for "Money or Damages" 5.7
        • a. Tort Claims 5.8
        • b. Contract Claims 5.9
        • c. Subrogation Claims 5.10
        • d. Indemnity Claims 5.11
        • e. Intervention in Industrial Accident Cases 5.12
        • f. Class Action Claims 5.13
      • 4. Compliance With Claims Presentation Requirements Prerequisite to Action
        • a. General Rule 5.14
        • b. Relying on Another Party's Claim Generally Prohibited; Exception 5.15
        • c. Effect of Variance Between Content of Claim and Complaint 5.16
        • d. Required Allegation in Complaint on Claims Presentation Requirements 5.17
        • e. Burden of Proof 5.18
      • 5. Validity of Requirements 5.19
    • B. Claims Subject to Presentation Procedures
      • 1. Statutory Distinctions Among Claims 5.20
      • 2. Claims Against State 5.21
      • 3. Claims Against Local Public Entities 5.22
      • 4. Claims Against Judicial Branch Entity 5.23
      • 5. Claims Against Municipalities for Certain Tax Refunds 5.24
      • 6. Claims Procedures Established by Local Public Entity
        • a. Authorization 5.25
        • b. Limitations on Time to File Claim 5.26
        • c. Local Claim Filing Requirements Not Retroactive 5.27
      • 7. Claims Procedures Established by Contract 5.28
        • a. Scope of Claims 5.29
        • b. Time Limits on Claims 5.30
      • 8. Claims of Minors and Incompetent Persons 5.31
      • 9. Claims in Class Actions 5.32
      • 10. Affirmative Defenses and Cross-Complaints
        • a. Judicial Development of General Rule 5.33
        • b. Factors to Be Considered in Application of General Rule 5.34
      • 11. Enforcement of Settlements 5.35
    • C. Claims Exempt From General Presentation Procedures
      • 1. Claims Against State
        • a. Specified Claims Against State Public Entities 5.36
        • b. Implied Contracts 5.37
      • 2. Specified Claims Against Local Public Entities (Govt C §905) 5.38
        • a. Claims Against Other Public Entities 5.39
        • b. Claims Based on Written Agreement With Its Own Claims Procedure 5.40
        • c. Claims Subject to Govt C §946.4 5.41
        • d. Exemptions Under Govt C §905 Strictly Construed 5.42
      • 3. Local Agencies Not Filing With Roster of Public Agencies 5.43
        • a. Required Statement 5.44
        • b. Deadline for Filing Statement 5.45
        • c. Purpose of Roster Procedure 5.46
        • d. Statement on File Must Be Accurate and Complete 5.47
        • e. Effect of Agency's Noncompliance 5.48
      • 4. Inverse Condemnation and Eminent Domain 5.49
      • 5. Relief Other Than Money or Damages 5.50
        • a. Action for Recovery of Property or Money 5.51
        • b. Petition for Issuance of Writ of Mandamus 5.52
        • c. When Primary Purpose of Action Is for Money Damages 5.53
      • 6. Actions Seeking Redress for Employment Discrimination and Retaliation 5.54
      • 7. Claims Under Federal Law 5.55
      • 8. Claims Against University of California 5.56
      • 9. Claims Against California State University 5.56A
  • III. CLAIMS AGAINST PUBLIC EMPLOYEES
    • A. Procedures and Statute of Limitations 5.57
    • B. Claims Presentation Requirements
      • 1. General Principles; Presenting Claim to Employing Public Entity 5.58
      • 2. Scope of Employment 5.59
      • 3. Scope of Claims Presentation Requirements
        • a. Generally Same as Required by Entity Claims Statute 5.60
        • b. Identification of Public Employee "If Known" 5.61
        • c. Substitution of Name of Public Employee for Fictitious Defendant 5.62
        • d. Exception for Ignorance of Public Employment
          • (1) Nature and Purpose of Exception 5.63
          • (2) Claim of Ignorance Under Govt C §950.4 Compared With Late Claim Under Govt C §911.4 5.64
      • 4. Premature Complaint 5.65
  • IV. AVOIDING EFFECT OF NONCOMPLIANCE
    • A. Tactical Devices Available 5.66
    • B. Doctrine of Substantial Compliance
      • 1. Elements of Doctrine 5.67
      • 2. Origin of Doctrine 5.68
      • 3. Examples 5.69
      • 4. Limitations of Doctrine
        • a. Doctrine Cannot Cure Total Omission of Essential Requirement for Valid Claim 5.70
        • b. Doctrine Will Not Cure Failure to Meaningfully Comply With Claims Requirements 5.71
        • c. Public Entity's Actual Knowledge of Claim Is Insufficient 5.72
        • d. Defective Complaint May Not Be Used in Lieu of Timely Claim 5.73
        • e. Doctrine Does Not Apply if Claim Is Not Presented to Designated Recipient Under Govt C §915 5.74
        • f. Doctrine Will Not Cure Complaint's Failure to Reflect Claim Accurately 5.75
        • g. Effect of Public Entity's Timely Notice of Claim's Insufficiency 5.76
      • 5. How Issue Raised; Tactical Consideration 5.77
    • C. Waiver and Estoppel as Excuses for Noncompliance 5.78
      • 1. Principles of Waiver 5.79
      • 2. Statutory Waiver 5.80
      • 3. Estoppel
        • a. Elements of Estoppel 5.81
        • b. False or Misleading Representations 5.82
          • (1) Estoppel Claims Rejected 5.83
          • (2) Aggravated Circumstances 5.84
        • c. Intimidating Conduct 5.85
        • d. Burden of Pleading and Proof on Plaintiff 5.86
    • D. Filing Late Claim When Relief Available 5.87

6

Preparation, Presentation, and Consideration of Claim

Girard Fisher

Robert C. Ceccon

Daniel P. Barer

  • I. PREPARATION: CONTENTS AND FORM
    • A. Information to Be Included 6.1
      • 1. Names and Addresses of Claimant and Person to Be Sent Notices 6.2
      • 2. Description of Claim; Factual Content; Preserving Theories of Recovery 6.3
      • 3. Inclusion of All Claimants 6.4
      • 4. Public Employee Causing Injury or Damage 6.5
      • 5. When Either Dollar Amount or Court's Jurisdiction Must Be Specified 6.6
    • B. Signature 6.7
    • C. Form: Claim for Personal Injuries 6.8
    • D. Special Claims Forms Provided by Public Entities 6.9
    • E. Form: Government Claim Filing Instructions and Form (DGS ORIM 06): Claim Against State 6.10
  • II. PRESENTATION OF CLAIM
    • A. Time Limits for Presentation 6.11
      • 1. Claims for Death or Injury to Person, Personal Property, or Crops: 6-Month Rule 6.12
      • 2. Other Causes of Action: 1-Year Rule 6.13
      • 3. Date Claim Presented 6.14
    • B. Computing Time Limit
      • 1. Mandatory Nature of Time Limits 6.15
      • 2. Accrual of Claim
        • a. Date of Accrual 6.16
          • (1) Legal Theory Underlying Claim 6.17
          • (2) Injuries of Continuing Nature 6.18
          • (3) Injuries That Worsen Over Time 6.19
          • (4) Defamation 6.20
          • (5) Distinguishing Between Accrual, Tolling, and Revival Provisions in Statutes 6.21
        • b. Delayed Discovery Rule 6.22
          • (1) Application in Specific Cases 6.23
          • (2) Determining Accrual Date 6.24
          • (3) When Raised in Claim 6.25
          • (4) When Raised in Complaint 6.26
          • (5) Delayed Discovery Rule for Minors 6.27
          • (6) Delayed Discovery in Medical Malpractice Actions 6.28
          • (7) Delayed Discovery in Childhood Sexual Abuse Cases 6.29
          • (8) Dilemma Posed by Delayed Discovery Claims 6.30
            • (a) Entity's Perspective 6.31
            • (b) Claimant's Perspective 6.32
        • c. Equitable Indemnity 6.33
        • d. Contractual Indemnification 6.34
      • 3. Tolling Time Limit for Claim
        • a. General Rule 6.35
        • b. When Claimant Charged With Crime 6.36
        • c. When Administrative Remedy Involved 6.37
        • d. When Claimant in Military Service 6.38
        • e. Effect of Ins C §11583 6.39
    • C. Method of Presentation
      • 1. To Local Entity or State 6.40
      • 2. Effect of Presentation to Wrong Person 6.41
      • 3. Effect of Presentation to Wrong Public Entity 6.42
    • D. Filing Fee and Surcharge 6.43
  • III. CONSIDERATION OF CLAIM
    • A. Notice of Insufficiency and Amendments
      • 1. Entity's Duty to Provide Notice of Defects or Omissions 6.44
      • 2. Claims That Trigger Notice of Insufficiency 6.45
      • 3. Amending Claim to Cure Defects or Omissions 6.46
    • B. Time to Act
      • 1. 45-Day Rule 6.47
      • 2. When 45-Day Rule May Be Extended 6.48
    • C. Action on Claim: Local Public Entity; State 6.49
    • D. Reconsideration of Rejected Claims 6.50
    • E. Notice of Action on Claim
      • 1. Written Notice Required; Manner of Service 6.51
      • 2. Effect When Notice Not Given 6.52
      • 3. Form: Content and Form of Notice 6.53
    • F. Notice and Return of Late Claim
      • 1. Must Be Given Within 45 Days After Claim Presented; Purpose 6.54
      • 2. If Notice of Insufficiency Is Sent 6.55
      • 3. Effect When Notice Not Timely Given 6.56
      • 4. Form: Content and Form of Notice 6.57
    • G. Special Claims Agents, Boards, and Commissions 6.58

7

Late Claim Proceedings; Tolling Limitation Period

Girard Fisher

Gerald A. Clausen

Daniel P. Barer

  • I. LATE CLAIM PROCEEDINGS 7.1
    • A. Summary of Late Claim Procedure 7.2
    • B. Failure to Invoke Late Claim Procedure 7.3
    • C. Statutory Grounds That May Excuse Failure to Present Timely Claim 7.4
    • D. Equitable Estoppel May Excuse Failure to Present Timely Claim 7.5
      • 1. Estoppel May Excuse Claimant From Presenting Claim Altogether 7.6
      • 2. When to Raise Estoppel Argument 7.7
    • E. Substantial Compliance or Timely Filing; Collateral Estoppel
      • 1. Combining Late Claim Application With Contention of Substantial Compliance or Timely Presentation 7.8
      • 2. Substantial Compliance Cannot Be Asserted in Late Claim Proceeding 7.9
      • 3. Split of Authority on Whether Timeliness of Claim May Be Considered in Late Claim Proceeding 7.10
      • 4. Collateral Estoppel 7.11
  • II. STATUTORY GROUNDS FOR GRANTING RELIEF
    • A. Mistake, Inadvertence, Surprise, or Excusable Neglect
      • 1. Present Application for Leave to Present Late Claim 7.12
      • 2. Purpose of Rule 7.13
      • 3. Excusable Neglect 7.14
        • a. Filing Requirements Are Liberally Construed 7.15
        • b. Excusable Neglect Required for Late Claim Relief Under the Act Is Generally Same as Required for Relief Under CCP §473 7.16
        • c. Attorney's Neglect Is Imputed to Claimant 7.17
        • d. Failure to Consult Attorney May Not Be Absolute Bar to Finding of Excusable Neglect 7.18
        • e. Failure to Present Timely Claim Must Be Objectively Reasonable 7.19
        • f. Failure to Identify Defendant as Public Entity 7.20
        • g. Presentation of Claim to Wrong Public Entity 7.21
        • h. Lack of Knowledge That Public Entity's Negligence or Wrongdoing Caused Injury or Damage 7.22
        • i. Lack of Access to Records 7.23
        • j. Ignorance of Applicable Claims Procedures 7.24
        • k. Misleading Statements by Public Entity or Third Party 7.25
        • l. Threats by Public Entity or Third Party 7.26
        • m. Clerical or Calendaring Error 7.27
        • n. Examples: Excusable Neglect Found 7.28
        • o. Examples: Excusable Neglect Not Found 7.29
        • p. Examples: Inattention or Lack of Diligence Found 7.30
      • 4. Stationery and Identity Card Requirement (Govt C §7530) 7.31
      • 5. Lack of Prejudice to Public Entity 7.32
        • a. Burden of Proof 7.33
        • b. No Need to Show Prejudice Unless Claimant Shows That Default Was Excusable 7.34
        • c. Importance of Showing Prejudice 7.35
        • d. Showing of Prejudice Must Be Supported by Facts 7.36
        • e. Rebutting Showing of Prejudice 7.37
    • B. Minority, Incapacity, or Death 7.38
      • 1. Minority 7.39
      • 2. Physical or Mental Incapacity 7.40
        • a. Evidence in Support of Incapacity 7.41
        • b. Claimant's Ability to Present Other Claims 7.42
        • c. Claimant Recovers From Incapacity 7.43
      • 3. Death 7.44
      • 4. Lack of Prejudice Need Not Be Shown 7.45
  • III. PROCEDURE
    • A. Applying to Public Entity for Leave to Present Late Claim
      • 1. Who May Apply 7.46
      • 2. Time Limit
        • a. General Rule 7.47
        • b. Tolling of Limitation Period 7.48
          • (1) Tolling for Mental Incapacity 7.49
          • (2) Minor's Status as Ward or Dependent of Court May Toll Application Period 7.50
        • c. Reasonable Diligence 7.51
        • d. Unreasonable Delay in Filing Application 7.52
      • 3. Method of Presentation of Late Claim Application 7.53
      • 4. Form: Application for Leave to Present Late Claim 7.54
      • 5. Action by Public Entity 7.55
        • a. Written Notice of Action 7.56
        • b. Time Limit 7.57
        • c. When Accrual of Claim Is Uncertain 7.58
      • 6. Form: Notice of Action on Application for Late Claim Relief 7.59
    • B. Petitioning Court for Relief From Govt C §945.4
      • 1. Grounds for Petition; Independent Review by Court 7.60
      • 2. Nature of Proceeding 7.61
      • 3. Time Limit 7.62
      • 4. Order Requested in Petition 7.63
      • 5. Contents of Petition 7.64
      • 6. Burden of Proof 7.65
        • a. Evidence in Support of Relief 7.66
        • b. Public Entity's Burden of Proof 7.67
      • 7. Service of Petition; Written Notice of Hearing 7.68
      • 8. Filing Petition With Court 7.69
      • 9. Response to Petition; Reply 7.70
      • 10. Discovery 7.71
      • 11. Hearing 7.72
      • 12. Generally No Right to Jury Trial 7.73
      • 13. Testimonial Evidence 7.74
      • 14. Declarations 7.75
      • 15. Form: Petition for Order Relieving Petitioner From Provisions of Govt C §945.4 7.76
      • 16. Effect of Order Granting Relief 7.77
      • 17. Challenging the Ruling in the Trial Court 7.78
    • C. Appellate Review of Order on Petition
      • 1. Order Denying Relief; Appellate Review 7.79
        • a. Time Limits for Appellate Review 7.80
        • b. Standard of Review on Appeal 7.81
      • 2. Order Granting Relief
        • a. Availability of Review 7.82
        • b. Availability of Writ Review 7.83
        • c. Standard of Review 7.84
    • D. Commencement of Action After Grant of Relief; Time Limitation 7.85
      • 1. Calculating 30-Day Period 7.86
      • 2. Tolling 30-Day Period 7.87
      • 3. 30-Day Period and Statute of Limitations 7.88

8

Bringing the Action

Girard Fisher

Gerald A. Clausen

Daniel P. Barer

  • I. TACTICAL CONSIDERATIONS IN BRINGING ACTION AGAINST PUBLIC ENTITIES AND PUBLIC EMPLOYEES
    • A. Limitations of Litigation Under Government Claims Act 8.1
    • B. Choosing a Cause of Action
      • 1. Causes of Action Outside Government Claims Act 8.2
      • 2. Action for Breach of Contract 8.3
      • 3. Federal Actions Against Both Public Entity and Public Employee 8.4
    • C. Deciding Whether to Include Both Public Employee and Public Entity 8.5
      • 1. Different Claims Requirements for Employees 8.6
      • 2. Action Against Public Employee as Private Individual 8.7
      • 3. Public Employee Necessary for Obtaining Punitive Damages 8.8
      • 4. Cause of Action May Affect Public Entity's Duty to Indemnify 8.9
      • 5. Public Entity's Duty to Defend 8.10
    • D. Settlement Affected by Joint Liability 8.11
  • II. STATUTES OF LIMITATIONS FOR FILING SUIT
    • A. Generally 8.12
    • B. Effect of Public Entity's Failure to File With Roster of Public Agencies 8.13
    • C. Effect of Statutes of Limitations Not Contained in the Government Claims Act 8.14
    • D. Six Months From Date of Written Notice of Rejection of Claim
      • 1. When 6-Month Period Begins 8.15
      • 2. Claimant Bears Risk of Nondelivery in Case of Mailing 8.16
      • 3. Computation of the Period
        • a. Six-Month Period 8.17
        • b. No Extension for Mailing 8.18
      • 4. Defective or Ambiguous Rejection Notice 8.19
      • 5. Amended Claim After Notice of Rejection 8.20
      • 6. Reopening and Reconsidering Previously Rejected Claim 8.21
    • E. Two Years From Accrual of Cause of Action When Written Notice of Rejection of Claim Not Given 8.22
    • F. Thirty Days From Order Granting Petition Under Govt C §946.6 8.23
    • G. Prematurely Filed Action 8.24
    • H. Tolling Statutes of Limitations 8.25
      • 1. Tolling During Agreed Extension of Public Entity's Time to Act on Claim 8.26
      • 2. Tolling During State Prisoner's Loss of Right to Sue 8.27
      • 3. Tolling During Criminal Defendant's Loss of Right to Sue Peace Officer 8.28
      • 4. Tolling During Claimant's Military Service 8.29
    • I. Applicability of General Tolling Statutes 8.30
      • 1. Failure to Give Notice When Making Advance or Partial Payment 8.31
      • 2. Workers' Compensation Intervenor 8.32
      • 3. MICRA 90-Day Tolling Period 8.33
      • 4. Decertification of Class Action 8.34
      • 5. Equitable Tolling 8.35
      • 6. Equitable Estoppel 8.36
      • 7. Tolling Pending Appeal 8.37
    • J. Statutes of Limitations Applicable to Actions Not Subject to Claims Presentation Requirements 8.38
  • III. PROCEDURAL REQUIREMENTS
    • A. Venue 8.39
      • 1. Actions Against State for Death or Injury to Person or Personal Property 8.40
      • 2. Actions Against Local Public Entities 8.41
    • B. Service of Process
      • 1. Actions Against Local Public Entities Under Government Claims Act 8.42
      • 2. Actions Against State Under Government Claims Act 8.43
    • C. Undertaking for Costs in Malpractice Actions Involving Medical Personnel 8.44
  • IV. PLEADINGS 8.45
    • A. Name Appropriate Defendant 8.46
    • B. Allege Compliance With or Excuse From Claim Presentation Requirements 8.47
    • C. Allege Facts Corresponding to Circumstance Described in Claim 8.48
    • D. Plead With Particularity 8.49
      • 1. Identify Statutory Ground 8.50
      • 2. Each Statutory Ground in Separate Cause of Action 8.51
      • 3. Alleging Negligence 8.52
    • E. Plead to Avoid Immunities 8.53
    • F. Allege Facts Showing Duty Owed to Plaintiff 8.54
      • 1. Affirmative Duty Imposed by Statute 8.55
      • 2. Duty Created by Special Relationship 8.56
      • 3. No Duty to Prevent Criminal Attacks by Third Parties 8.57
    • G. Public Entity's Answer: Including Affirmative Defenses 8.58
      • 1. Verification of Answer 8.59
      • 2. Public Entity Exempt From Filing Fees 8.60
  • V. DISCOVERY ISSUES 8.61
    • A. California Public Records Act (CPRA) 8.62
      • 1. CPRA and Civil Discovery Act 8.63
      • 2. Exemptions Under CPRA 8.64
    • B. Privilege for Official Information 8.65
    • C. Legislative Information
      • 1. Open Meetings 8.66
      • 2. Legislators' Motivations Are Not Subject to Discovery 8.67
  • VI. POSTTRIAL PROCEEDINGS
    • A. Motion for Reduction of Judgment for Collateral Source Payments (Govt C §985) 8.68
    • B. Motion for Postverdict Settlement Conference (Govt C §962) 8.69
    • C. Reduction of Verdict to Actual Medical Costs Paid or Incurred 8.70
    • D. Satisfaction of Judgment
      • 1. Duty to Pay Judgments
        • a. Statutory Requirement 8.71
          • (1) Duty of Local Public Entities 8.72
          • (2) Duty of State 8.73
        • b. Prejudgment Interest 8.74
        • c. Postjudgment Interest 8.75
        • d. Installment Payments 8.76
          • (1) Unreasonable Hardship 8.77
          • (2) Judgment Against Public Entity Exceeds Threshold Amount 8.78
          • (3) Health Care Providers 8.79
        • e. Attorney Fees 8.80
      • 2. Funding Tort Liabilities
        • a. Ad Valorem Taxes or Assessments 8.81
        • b. Insurance 8.82
        • c. Joint Powers Agreements 8.83
    • E. Appeals 8.84
  • VII. REMEDIES FOR UNWARRANTED ACTIONS AGAINST PUBLIC ENTITIES AND EMPLOYEES
    • A. Malicious Prosecution Action May Be Brought by Public Employee But Not by Public Entity 8.85
    • B. Sanctions Under CCP §128.7 8.86
    • C. Recovery of Defense Costs and Attorney Fees for Defending Against Frivolous Actions (CCP §§1038 and 1021.7) 8.87
      • 1. Lack of Good Faith and Reasonable Cause 8.88
      • 2. Procedure for Recovery of Costs Under CCP §1038 8.89

9

General Principles of Public Entity and Public Employee Liability

Randall B. Christison

Kristin G. Hogue

  • I. SCOPE OF CHAPTER 9.1
  • II. LIABILITY UNDER GOVERNMENT CLAIMS ACT
    • A. Employees and Entities Generally Subject to Same Liabilities and Immunities 9.2
    • B. Public Employee Liability
      • 1. General Rule 9.3
      • 2. Qualifications to General Rule 9.4
      • 3. Exceptions to General Rule
        • a. Public Employee Not Vicariously Liable for Torts of Another Person 9.5
        • b. Local Public Officials Not Vicariously Liable for Injury Caused by Public Entity or Advisory Body 9.6
    • C. Public Entity Liability
      • 1. Statutory Liability 9.6A
      • 2. Liability for Acts or Omissions of Public Employees in Scope of Their Employment 9.7
        • a. Requirement of Duty; Negligence 9.8
        • b. Intentional Torts 9.9
        • c. Statutory and Common Law Liability 9.10
        • d. Scope of Employment Requirement; Effect of Intentional or Criminal Acts 9.11
          • (1) Foreseeability Test 9.12
          • (2) Examples of Acts Held Within Scope of Employment 9.13
          • (3) Examples of Acts Held Not Within Scope of Employment 9.14
          • (4) Criminal Acts [Deleted] 9.15
          • (5) Intentional Torts by Elected Officials 9.16
      • 3. Liability for Punitive Damages Awarded Against Employees 9.17
      • 4. Relationship Between Public Employee's and Public Entity's Immunities
        • a. Employee Immunity Generally Imputed to Entity 9.18
        • b. Entity Sometimes Immune When Employee Liable 9.19
        • c. Entity Sometimes Liable Although Employee Immune or Otherwise Not Liable 9.20
      • 5. Liability for Acts of Independent Contractors 9.21
        • a. Nondelegable Duty 9.22
        • b. Peculiar Risk Doctrine 9.23
        • c. Negligent Exercise of Retained Control or Negligent Provision of Unsafe Equipment 9.23A
        • d. Limitations on Entity Liability 9.24
      • 6. Mandatory Duty Liability
        • a. Statute, Charter, Ordinance, or Regulation 9.25
        • b. Duty Must Be Imposed by Enactment 9.26
        • c. Enactment Must Be Specifically Pleaded 9.27
        • d. Ascertaining Whether Enactment Imposes Mandatory Duty 9.28
        • e. Determining Intent From Statutory Language 9.28A
          • (1) When Duty Explicitly Stated; Effect of Word "Shall"
            • (a) Use of "Shall" Often Leads to Finding of Mandatory Duty 9.29
            • (b) Use of "Shall" Not Dispositive 9.30
            • (c) Finding of No Mandatory Duty Despite Use of "Shall" 9.31
          • (2) Statutory Mandatory Duties Do Not Create Implied Mandatory Duties 9.32
          • (3) Language of Enactment Must Be More Than Advisory Statements or Nonobligatory General Recitations 9.33
          • (4) Duty Not Mandatory When Enactment Confers Discretionary or Permissive Authority 9.34
          • (5) Duty Must Be Imposed on Defendant 9.35
        • f. Enactment Must Intend to Protect Against Kind of Risk of Injury Suffered
          • (1) Liability Found 9.36
          • (2) Liability Not Found 9.37
        • g. Breach of Mandatory Duty Must Be Proximate Cause of Injury Suffered 9.38
        • h. Relationship to Statutory Immunities
          • (1) Public Employee Immunity Does Not Insulate Public Entity From Liability Under Govt C §815.6 9.39
          • (2) Statutory Immunities Applicable to Public Entities May Bar Liability Under Govt C §815.6
            • (a) Immunities That Do Not Defeat Mandatory Duty 9.40
            • (b) Immunities That Defeat Mandatory Duty 9.41
        • i. Burden of Proof 9.42
        • j. Writ of Mandamus as Remedy 9.43
        • k. Nonmandatory Performance Standards 9.44
    • D. Damages Recoverable 9.45
      • 1. Examples 9.46
      • 2. Collateral Source Rule 9.47
  • III. EFFECT OF UNDERLYING GENERAL TORT LAW ON GOVERNMENT CLAIMS ACT 9.48
    • A. Elements of Liability Based on Negligence Theory 9.49
      • 1. Duty Requirement 9.50
      • 2. Factors Establishing Duty 9.51
      • 3. Duty Based on Misfeasance 9.52
      • 4. Duty Arising From Special Relationship 9.53
        • a. Cases Finding Special Relationship 9.54
        • b. Cases Finding No Special Relationship 9.55
      • 5. Duty Generally to Be Considered Before Immunity 9.56
      • 6. Examples of Duty
        • a. Cases in Which Duty Found to Exist 9.57
        • b. Cases in Which Duty Found Not to Exist 9.58
    • B. Strict Products Liability Not Available Under Government Claims Act 9.59
  • IV. LIABILITY BASED ON OTHER THAN GOVERNMENT CLAIMS ACT
    • A. Based on Constitutional Rights 9.60
      • 1. Inverse Condemnation
        • a. Constitutional Basis 9.60A
        • b. Distinguished From Eminent Domain 9.61
        • c. Distinguished From Torts 9.62
        • d. Must Be Taking or Damaging for "Public Use" and Entity Must Have "Substantially Participated" in Project 9.63
        • e. Defenses 9.64
        • f. Damages 9.65
        • g. Procedural Considerations; Statutes of Limitation 9.66
        • h. When Inverse Condemnation Action May Be Available
          • (1) Types of Damage or Takings 9.67
            • (a) Damage to Property From Diverted or Escaping Waters 9.68
            • (b) Landslide or Subsidence Damage 9.69
            • (c) Interference With Owner's Right of Access to Property 9.70
            • (d) Diminution of Value From Airport Noise 9.71
            • (e) Government Land Use Ordinance or Regulatory Decisions 9.72
            • (f) Other Forms of Inverse Condemnation 9.73
          • (2) Precondemnation Delay 9.74
      • 2. Other Actions Based on California Constitution
        • a. When Action for Money Damages Available 9.75
          • (1) Affirmative Intent to Authorize or Withhold Damages Action 9.75A
          • (2) Constitutional Tort Analysis 9.75B
          • (3) Existence of Special Factors Counseling Hesitation 9.75C
        • b. Cases Involving Right to Sue Under California Constitution 9.75D
        • c. Preexisting Statutory Immunity Bars Constitutional Tort Causes of Action 9.75E
    • B. Under Statute
      • 1. Federal Civil Rights Act 9.76
      • 2. Americans with Disabilities Act 9.76A
      • 3. Antitrust Liability 9.77
      • 4. Motor Vehicle Liability 9.78
      • 5. Nuisance
        • a. In General 9.79
        • b. Statutory Immunities 9.80
      • 6. Liability Under Other Statutes 9.81
    • C. Nontortious Liability
      • 1. Contractual Liability 9.82
        • a. Misrepresentation 9.83
        • b. Other Examples 9.84
      • 2. Nonmonetary Relief
        • a. Availability of Injunctive and Declaratory Relief 9.85
        • b. Legislative Intent [Deleted] 9.86
        • c. Writ of Mandamus as Remedy 9.87
        • d. Inapplicability of Claims Filing Requirements 9.87A
      • 3. Workers' Compensation
        • a. General Principles 9.88
        • b. Waiver of Exclusivity of Workers' Compensation Remedy [Deleted] 9.89
        • c. Assistance of Public Entities by Private Citizens 9.90
        • d. Other Issues 9.91

10

General Immunities of Public Entities and Employees

Kristin G. Hogue

  • I. INTRODUCTION
    • A. Scope of Chapter 10.1
    • B. Relationship Between Entity and Employee Immunities 10.2
    • C. Raising Immunity Defense
      • 1. Procedure 10.3
      • 2. Failure to Raise Immunity as Jurisdictional Issue 10.4
      • 3. Availability of Immunity Affected by Plaintiff's Choice of Remedy 10.5
  • II. GENERAL IMMUNITIES
    • A. Discretionary Acts and Omissions Under Govt C §820.2
      • 1. Statutory Authority 10.6
      • 2. Basis in Common Law 10.7
      • 3. Interpreted Largely by Case Law 10.8
      • 4. California Supreme Court Cases Interpreting Govt C §820.2 10.9
        • a. Barner v Leeds 10.10
        • b. Caldwell v Montoya 10.10A
        • c. Johnson v State 10.11
        • d. Other Related California Supreme Court Decisions 10.12
      • 5. Factors to Consider in Applying Discretionary Immunity 10.13
        • a. Statutes Entrusting Authority and Discretion 10.14
        • b. Distinction Between "Planning" and "Operational" Functions: Immunity Reserved for Basic Policy Decisions 10.15
        • c. Semantic or Literal Approach to Discretion 10.16
        • d. Conduct Merely "Incidental and Collateral" to Discretionary Decision 10.17
        • e. Exercise of Discretion in Which Risks and Advantages Weighed and Balance Struck 10.18
        • f. Effective and Vigorous Performance as Highly Important to Public Welfare 10.19
        • g. Other Factors 10.20
      • 6. Employees Vested With Discretion Versus Exercising Ministerial Functions 10.21
        • a. Employees Held to Be Vested With Discretion 10.22
        • b. Employees Held to Be Exercising Ministerial Functions 10.23
      • 7. When Discretionary Immunity Held to Apply 10.24
        • a. Pre-Johnson Cases 10.25
        • b. Post-Johnson Cases 10.26
      • 8. When Discretionary Immunity Held Not to Apply 10.27
        • a. Ministerial Acts Under Pre-Johnson Cases 10.28
        • b. Ministerial Acts Under Post-Johnson Cases 10.29
      • 9. Police and Law Enforcement: A Special Case?
        • a. Special Versus General Immunity 10.30
        • b. Effect of Johnson v State 10.31
        • c. Effect of Govt C §820.25 10.32
    • B. Other General Immunities
      • 1. Public Officers' Immunity for Subordinates' Acts and Omissions 10.33
        • a. No Immunity When Supervising Employee Participates in Tort 10.34
        • b. Effect of Govt C §820.8 on Public Entity Immunity 10.35
      • 2. Local Officials' Immunity for Misconduct of Governing Body 10.36
      • 3. Immunity for Money Stolen From Official Custody 10.37
      • 4. Misrepresentation
        • a. Meaning and Scope of "Misrepresentation" 10.38
        • b. Entity Immunity for Misrepresentation 10.39
        • c. Employee Immunity for Misrepresentation 10.40
        • d. Misrepresentation Cases 10.41
        • e. Contract Action Not Barred 10.42
      • 5. Malicious Prosecution
        • a. Scope and Purpose of Immunity 10.43
        • b. Cases Under Govt C §821.6 10.44
      • 6. False Arrest and False Imprisonment
        • a. No Specific Immunity for False Arrest or Imprisonment 10.45
        • b. Malicious Prosecution Distinguished 10.46
      • 7. Health and Safety Inspections of Property 10.47
        • a. Immunity Is Absolute 10.48
        • b. Scope of Immunity 10.49
      • 8. Adoption and Enforcement of Law
        • a. Adoption of Enactments
          • (1) Scope of Immunity 10.50
          • (2) Immunity Does Not Apply to Mandatory Discharge of Duty 10.51
        • b. Failing to Legislate 10.52
        • c. Nonnegligent Enforcement of Law
          • (1) Immunity Applies If Employee Exercises Due Care 10.53
          • (2) Function of Immunity 10.54
          • (3) Standard of Due Care 10.55
        • d. Failure to Enforce Law 10.56
          • (1) Immunity Not Applicable to Negligence or Failure to Protect Against Dangerous Property Condition 10.57
          • (2) Immunity Usually Applies to Actions of Law Enforcement Officers 10.58
      • 9. Acts Under Invalid or Inapplicable Enactment
        • a. Scope and Nature of Immunity 10.59
        • b. Burden of Proof 10.60
      • 10. Authorized Entry on Private Property
        • a. Scope and Nature of Immunity 10.61
        • b. Availability of Damages for Precondemnation Activity 10.62
      • 11. Licensing Activities
        • a. Nature of Licensing Immunity 10.63
        • b. Court's Decision on Whether Mandatory Duty Exists Usually Determines Whether Licensing Immunity Applies 10.64
        • c. Issuance of Driver's Licenses 10.65
        • d. Immunity for Activity Preliminary to Issuance of License 10.66
        • e. Cases Applying Licensing Immunity 10.67
  • III. MISCELLANEOUS IMMUNITIES
    • A. Gradual Earth Movement (Govt C §866(a)) 10.68
    • B. Earthquake and Volcanic Warnings (Govt C §955.1(b)) 10.69
    • C. Tunnel Travel by Flammable Liquid Carriers (Govt C §821.5) 10.70
    • D. Injuries From National Guard Members (Govt C §816) 10.71
    • E. Injuries From Asbestos Exposure (Govt C §905.5) 10.72
    • F. Immunities Outside Government Claims Act 10.73
      • 1. Selected Immunities 10.74
      • 2. Privileged Communications or Broadcasts (CC §47)
        • a. Communications in Proper Discharge of Official Duty 10.75
        • b. Communications During Official Proceeding (CC §47(b)) 10.76
      • 3. Immunity Under Emergency Services Act 10.77
      • 4. School-Related Immunities 10.78
  • IV. OTHER DEFENSES 10.79

11

Liabilities and Immunities in Specific Functional Areas

Joel A. Davis

Laura Lee Gold

  • I. INTRODUCTION
    • A. Scope 11.1
    • B. Governmental Activities Not Specifically Treated 11.2
  • II. POLICE AND CORRECTIONAL ACTIVITIES 11.3
    • A. Statutory Liabilities
      • 1. General Provisions 11.4
      • 2. Specific Provisions 11.5
        • a. False Arrest and False Imprisonment 11.6
          • (1) Definitions of "False Arrest" and "False Imprisonment" 11.7
          • (2) Relationship Between False Arrest and Malicious Prosecution 11.8
          • (3) Statutory Immunities 11.9
          • (4) Other Statutory Limitations 11.10
          • (5) Related Claim Under Federal Civil Rights Act 11.11
        • b. Interference With Prisoner's Right to Judicial Review 11.12
          • (1) Definition of "Prisoner" 11.13
          • (2) Relationship to Federal Constitutional Civil Rights Violations 11.14
        • c. Failure to Summon Medical Care for Prisoner 11.15
        • d. Remedy for Failure to Provide Adequate Medical Care for Prisoner 11.16
          • (1) Specific Immunities 11.17
          • (2) Comparison to Liability for Medical Malpractice 11.18
          • (3) Relationship to Federal Civil Rights Act 11.19
        • e. Other Specific Law Enforcement Liabilities 11.20
      • 3. Federal Civil Rights Act 11.21
    • B. Statutory Immunities 11.22
      • 1. General Provisions
        • a. Discretionary Acts and Omissions 11.23
        • b. Other General Provisions 11.24
      • 2. Specific Provisions 11.25
        • a. Not Primarily Aimed at Law Enforcement Torts 11.26
        • b. Injuries to Prisoners
          • (1) Immunity of Public Entity 11.27
            • (a) Who Is a Prisoner 11.28
            • (b) Who Is Not a Prisoner 11.29
            • (c) What Is an Injury to a Prisoner 11.30
          • (2) Exceptions to Immunity 11.31
            • (a) Liability of Public Employees 11.32
            • (b) Indemnification of Employees Held Liable for Injuries to Prisoners 11.33
        • c. Injuries Caused by Prisoners
          • (1) Immunity of Public Entity 11.34
          • (2) Exceptions 11.35
        • d. Failure to Provide Penal and Correctional Facilities 11.36
        • e. Determinations Relating to Parole and Release of Prisoners 11.37
          • (1) Relationship to Discretionary Function Immunity 11.38
          • (2) Broadly Defined Release Immunity 11.39
            • (a) Examples of Immune Acts 11.40
            • (b) Negligent Supervision of Parolee 11.41
          • (3) Relationship to Duty to Warn 11.42
        • f. Injuries Caused by Escaped or Escaping Persons 11.43
          • (1) Absolute Immunity 11.44
          • (2) Relationship to Liability for Negligent Operation of Motor Vehicle 11.45
        • g. Failure to Provide Police Protection 11.46
          • (1) Situations Outside Scope of Immunity 11.47
          • (2) Duty Arising From Special Relationship 11.48
            • (a) Relationship of Immunity to Duty 11.49
            • (b) Public Transportation and Schools 11.50
        • h. Failure to Make Arrest and Failure to Retain Arrested Person in Custody 11.51
        • i. Money Stolen From Official Custody 11.52
        • j. Injuries by National Guard 11.53
        • k. Statutory Immunities Found Outside Government Claims Act 11.54
          • (1) Emergency Services Act 11.55
          • (2) Other Emergency Services 11.56
          • (3) Reporting Child Abuse and Neglect 11.57
          • (4) Reporting Elder Abuse 11.57A
  • III. FIRE PROTECTION ACTIVITIES
    • A. Statutory Liabilities
      • 1. General Provisions 11.58
      • 2. Extraterritorial Fire Protection Service 11.59
      • 3. Willful Misconduct in Transporting Injured Persons to Medical Aid 11.60
      • 4. Other Statutory Liabilities 11.61
    • B. Statutory Immunities
      • 1. General Provisions 11.62
      • 2. Failure to Provide Adequate Fire Protection
        • a. Applicable Statutes 11.63
        • b. Problems of Statutory Interpretation
          • (1) What Is a Fire Protection Service 11.64
          • (2) What Is Sufficient Personnel, Equipment, or Facilities 11.65
          • (3) Effect of Mandatory Requirements 11.66
      • 3. Dangerous Condition of Fire Protection Equipment or Facilities
        • a. Applicable Statutes 11.67
        • b. Injuries When No Fire 11.68
        • c. Relation to Dangerous Condition and Mandatory Duty Liability 11.69
      • 4. Injuries Caused in Fighting Fires
        • a. Applicable Statutes 11.70
        • b. Scope of Immunity 11.71
          • (1) Only Acts During Firefighting Activities Are Immune 11.72
          • (2) Extent of Activities Held Immune 11.73
      • 5. Other Statutory Immunities 11.74
  • IV. MEDICAL, HOSPITAL, AND PUBLIC HEALTH ACTIVITIES
    • A. Statutory Liabilities
      • 1. General Provisions 11.75
      • 2. Failure to Conform Medical Facilities to Prescribed Standards
        • a. Applicable Statutes 11.76
          • (1) Scope of Application 11.77
          • (2) Examples of Prescribed Standards 11.78
          • (3) Nonregulated Facilities 11.79
        • b. Relationship to Immunities 11.80
      • 3. Interference With Patient's Right of Judicial Review 11.81
        • a. Confinement Must Be Illegal and Interference Must Be Intentional and Unjustifiable 11.82
        • b. Meaning of "Medical Facility" 11.83
        • c. Meaning of "Confinement" 11.84
      • 4. Negligence in Administering Medical Care
        • a. General Rule of Liability 11.85
        • b. Specific Liability Provisions 11.86
      • 5. Other Statutory Liabilities
        • a. In General 11.87
        • b. Applicable State Statutes Outside Government Claims Act 11.88
    • B. Statutory Immunities
      • 1. General Provisions 11.89
      • 2. Discretionary Public Health Determinations 11.90
      • 3. Physical or Mental Examinations
        • a. General Rule of Immunity 11.91
        • b. Application to General Health Screening Programs 11.92
        • c. Examples 11.93
      • 4. Failure to Admit Patient to Public Medical Facility 11.94
      • 5. Injuries to Inpatients of Mental Institution: Immunity Provision 11.95
        • a. Definition of "Mental Institution" 11.96
        • b. Definition of "Inpatient" 11.97
        • c. Limitations to Immunity 11.98
        • d. Exception: Injury to Person Other Than Mental Patient by Dangerous Property Condition 11.99
        • e. Liability of Public Employees 11.100
        • f. Indemnification of Employee by Entity 11.101
      • 6. Injuries Caused by Mental Patients
        • a. Immunity Provision 11.102
        • b. Limitations to Immunity 11.103
      • 7. Diagnosis and Treatment of Mental Illness or Addiction 11.104
        • a. Broad Scope of Immunity 11.105
        • b. Related Immunities 11.106
        • c. Exceptions and Limitations 11.107
      • 8. Confinement of Mental Patients and Addicts 11.108
        • a. Scope of Immunity 11.109
        • b. Definition of Terms 11.110
        • c. Related Immunities Outside Government Claims Act 11.111
        • d. Exceptions and Limitations to Immunity 11.112
      • 9. Parole and Release of Mental Patients and Addicts
        • a. Immunity Provision 11.113
          • (1) Relation to Confinement Immunity 11.114
          • (2) Release Must Be Based on Statutory Enactment 11.115
          • (3) Other Defenses or Grounds for Immunity 11.116
        • b. Scope of Immunity 11.117
      • 10. Escaped or Escaping Mental Patients or Addicts 11.118
        • a. Application of "Confined" 11.119
        • b. Exceptions to Immunity 11.120
      • 11. Other Statutory Immunities 11.121
  • V. ADMINISTRATION OF TAX LAWS
    • A. Statutory Liabilities 11.122
    • B. Statutory Immunities 11.123
      • 1. Arguments for and Against Narrow Interpretation of Immunity 11.124
      • 2. Relationship of Govt C §860.2 to Govt C §860.4 11.125
  • VI. PESTICIDE USE
    • A. General Principle of Liability 11.126
    • B. Qualifications and Limitations of Liability Rules 11.127
  • VII. INJURIES CAUSED BY MOTOR VEHICLES
    • A. Liability of Public Entity Under Veh C §17001
      • 1. In General 11.128
      • 2. Judicial Construction
        • a. "Public Entity" 11.129
        • b. "Motor Vehicle" 11.130
        • c. "Employee" 11.131
        • d. "Scope of Employment" 11.132
        • e. "Negligent or Wrongful Operation" 11.133
    • B. Ownership and Bailee Liability of Public Entity
      • 1. Ownership 11.134
      • 2. Bailee 11.135
      • 3. Limits of Liability 11.136
    • C. Liability for Negligent Entrustment 11.137
    • D. Liability for Injuries to Guests 11.138
    • E. Indemnification of Public Employee; Subrogation of Public Entity 11.139
    • F. Statutory Immunities
      • 1. Operation of Authorized Emergency Vehicle
        • a. Applicable Statutes 11.140
        • b. Meaning of "Authorized Emergency Vehicle" 11.141
        • c. Injury in Course of or as Result of Pursuit by Peace Officer (Veh C §17004.7) 11.142
        • d. Application of Veh C §§17004 and 17004.7 11.143
        • e. Relationship of Immunity Provisions and Liability Provisions 11.144
      • 2. Operation of Road Equipment 11.145
      • 3. Immunities Under Government Claims Act 11.146
  • VIII. ACTIVITIES TO ABATE IMPENDING PERIL
    • A. Activities Owing to Gradual Earth Movement 11.147
    • B. Other Related Governmental Activities 11.148

12

Dangerous Condition of Public Property

Kenneth G. Nellis

  • I. INTRODUCTION
    • A. Scope of Chapter 12.1
    • B. Governing Statutory Law 12.2
  • II. PUBLIC ENTITY LIABILITY
    • A. Checklist: Analytical Questions 12.3
    • B. Basic Rules
      • 1. Dangerous Property Liability Is Statutory Only 12.4
      • 2. Essential Elements of Liability 12.5
      • 3. Liabilities Are Cumulative 12.6
      • 4. Liability Is Not Dependent on Employee Liability 12.7
      • 5. Plaintiff's Status Is Immaterial and Does Not Affect Liability 12.8
    • C. Elements for Plaintiff to Establish
      • 1. Public Property
        • a. Definition: Property Must Be Owned or Controlled by Public Entity 12.9
          • (1) Ownership
            • (a) In General 12.10
            • (b) No Ownership Until Streets and Highways Are Accepted 12.11
          • (2) Control 12.12
        • b. Ownership or Control Must Exist at Time of Accident 12.13
        • c. Joint and Several Liability May Result If Ownership or Control Are Divided 12.14
      • 2. Dangerous Condition
        • a. Definition 12.15
        • b. Condition of Property: Definitions 12.16
          • (1) Public Improvement That Is Damaged or Deteriorated 12.17
          • (2) Property That Is Dangerous Because of Defective Design, Location, or Latent Hazard 12.18
          • (3) Property That Is Dangerous Because of Condition of Property and Negligent or Criminal Conduct of Others 12.19
            • (a) Cases Finding Property Dangerous Because of Condition of Property and Negligent or Criminal Conduct of Others 12.19A
            • (b) Cases Not Finding Property Dangerous Because of Condition of Property and Negligent or Criminal Conduct of Others 12.19B
        • c. Substantial Risk of Injury: Trivial Risks Excluded
          • (1) Substantial Risk Under Govt C §830(a) 12.20
            • (a) Manner In Which Property Condition Caused the Accident 12.20A
            • (b) History of Similar Accidents 12.20B
            • (c) Absence of Prior Accidents 12.20C
            • (d) Professional Standards and Degree of Risk Created by Condition 12.20D
            • (e) Safety Codes or Standards 12.20E
          • (2) Trivial Risk Statutorily Excluded: Govt C §830.2
            • (a) Generally Determined as Matter of Law 12.21
            • (b) Determined as Question of Fact If Reasonable Minds Differ 12.22
        • d. Such Property or Adjacent Property Under Govt C §830(a) 12.23
          • (1) "Such Property" 12.24
          • (2) "Adjacent Property" 12.25
          • (3) Determining Whether Condition on Adjacent Property Imposed Duty on Public Entity 12.25A
          • (4) Private Property Owners May Also Be Liable for Injuries on Public Property 12.25B
        • e. Used With Due Care
          • (1) Meaning and Scope 12.26
          • (2) Court's Approach When Determining Case on Pleadings 12.27
          • (3) Effect of Court or Jury's Determination of "Due Care" 12.28
          • (4) Children Using Public Property Not Held to Adult Standard of "Due Care" 12.29
        • f. Reasonably Foreseeable Manner of Use 12.30
        • g. Statutory Qualifications Affecting Definition of Dangerous Condition 12.31
        • h. Usually Question of Fact, Not Law 12.32
          • (1) Examples: Question of Fact 12.33
          • (2) Examples: Question of Law 12.34
          • (3) Examples: Cases That Are Ambiguous or Outside Scope of Government Claims Act 12.35
      • 3. Causation
        • a. Proximate Cause 12.36
          • (1) Dangerous Condition Need Not Be Sole or Exclusive Cause of Injury 12.37
          • (2) Concurrent Negligence of Plaintiff or Third Party 12.38
          • (3) When Chain of Causation Broken by Third Party 12.39
        • b. Foreseeable Risk of Kind of Injury Incurred 12.40
        • c. Manner of Injury May Be Corroborative of Foreseeability 12.40A
      • 4. Grounds for Liability Under Govt C §835(a)–(b) 12.41
        • a. Negligent or Wrongful Creation of Dangerous Condition: Govt C §835(a)
          • (1) Basis for Liability 12.42
          • (2) Showing of Notice Not Required 12.43
        • b. Negligent Failure to Protect After Notice of Dangerous Condition: Govt C §835(b)
          • (1) Basis for Liability 12.44
          • (2) Showing of Actual or Constructive Notice Required 12.45
          • (3) Actual Notice 12.46
          • (4) Constructive Notice
            • (a) Burden of Proof on Plaintiff 12.47
              • (i) Length of Time Defect Has Existed 12.47A
              • (ii) Similar Accidents and Inspection Reports 12.47B
              • (iii) Foreseeable Third Party Criminal Conduct 12.47C
            • (b) Reasonable Inspection Test of Constructive Notice 12.48
              • (i) Question of Fact 12.49
              • (ii) Question of Law 12.50
            • (c) Trivial Defect Rule 12.51
      • 5. Protective Measures
        • a. Opportunity to Take Protective Measures 12.52
        • b. Assessment of Relevant Policy Considerations; When Protective Measures Not Required 12.53
      • 6. Damages 12.54
      • 7. Considerations Concerning Duty 12.55
  • III. DEFENSES AND IMMUNITIES AVAILABLE TO DEFENDANT PUBLIC ENTITY
    • A. Checklist: Analytical Questions 12.56
    • B. Public Entity May Assert Any Defenses Available to Private Defendants 12.57
      • 1. Comparative Negligence 12.58
      • 2. Assumption of Risk 12.59
      • 3. Third Party Negligence 12.60
    • C. Statutory Defenses
      • 1. Reasonableness of Act or Omission Creating Condition
        • a. Determining Reasonableness Under Govt C §835.4(a) 12.61
        • b. Reasonableness Defense Compared With Design Immunity 12.62
      • 2. Reasonableness of Protective Measures
        • a. Reasonableness Test Under Govt C §835.4(b) 12.63
        • b. Evaluate Reasonableness in Light of Degree of Danger Under All Circumstances 12.64
        • c. Reasonableness Generally Determined as Issue of Fact 12.65
    • D. Statutory Immunities
      • 1. Design Immunity: Govt C §830.6
        • a. Basic Principles 12.66
          • (1) Purpose of Design Immunity 12.67
          • (2) Constitutional Limitations on Design Immunity 12.68
        • b. Elements Required to Prove Design Immunity
          • (1) Causal Relationship Between Plan or Design and Accident 12.69
          • (2) Approval by Authorized Public Body or Official Required 12.70
          • (3) "Any Substantial Evidence" Required to Establish Reasonableness of Approval 12.71
        • c. Loss of Design Immunity [Deleted] 12.72
        • d. Burden of Pleading and Proof on Defendant 12.73
        • e. Issue for Court, Not Jury 12.74
        • f. Loss of Design Immunity 12.74A
          • (1) Change in Physical Conditions 12.74B
          • (2) Notice of Dangerous Condition 12.74C
          • (3) Reasonable Time to Carry Out Remedial Work Or Failure to Provide Adequate Warnings 12.74D
      • 2. Regulatory Traffic Signals, Signs, Markings: Govt C §830.4 12.75
      • 3. Traffic Warning Signals, Signs, Markings, or Devices: Govt C §830.8
        • a. In General 12.76
        • b. Definition of "Described in the Vehicle Code" 12.77
        • c. Concealed "Trap" Exception
          • (1) In General 12.78
          • (2) Whether Design Immunity Is Precluded by "Trap" Exception 12.79
      • 4. Effect of Weather Conditions on Streets: Govt C §831
        • a. General Rule 12.80
        • b. When Weather Immunity Not Applicable 12.81
      • 5. Natural Conditions of Unimproved Property: Govt C §831.2
        • a. In General 12.82
        • b. Scope of Immunity: When Does Public Property Cease to Be "Unimproved?"
          • (1) Improvements Must Change Physical Nature of Property at Location of Injury 12.83
          • (2) Impact of Warning Signs 12.84
        • c. Voluntary Assumption of Duty to Protect Public
          • (1) Govt C §831.21 Immunity Applies in Public Beach Cases Even If Entity Voluntarily Assumed Protective Duty 12.85
          • (2) Govt C §831.2 Immunity Applied in Nonbeach and Beach Cases Arising Before Effective Date of Govt C §831.21 12.86
        • d. Govt C §831.2 Generally Not Applied to Nonusers Injured on Adjacent Land; Effect of Land Failure 12.87
      • 6. Unpaved Access Roads and Recreational Trails: Govt C §831.4 12.88
      • 7. Unimproved and Unoccupied State Lands: Govt C §831.6 12.89
      • 8. Recreational Activities
        • a. Immunity for Hazardous Recreational Activities: Govt C §831.7
          • (1) Definition of Hazardous Recreational Activities 12.90
          • (2) School-Sponsored and Supervised Sports Activities 12.90A
          • (3) Exceptions to Govt C §831.7 Immunity 12.91
        • b. No Immunity for Recreational Activities Under CC §846 12.92
      • 9. Reservoirs, Canals, Conduits, Drains: Govt C §831.8
        • a. Reservoir Immunity Applies If Use of Property Was Unintended or Unpermitted: Govt C §831.8(a)
          • (1) Scope of Immunity 12.93
          • (2) Limitations on Reservoir Immunity 12.94
        • b. Canals, Drains Unintended Purposes: Govt C §831.8(b)
          • (1) Canal Immunity Applies When Use of Property Was Unintended 12.95
          • (2) Definition of "Irrigation District" 12.96
          • (3) Limitations on Canal Immunity 12.97
        • c. Unlined Flood Control Channels and Groundwater Recharge Spreading Grounds Under Govt C §831.8(c) 12.97A
        • d. Exception: Trap for Noncriminal User Under Govt C §831.8(d) 12.98
        • e. Exception: Attractive Nuisance to Children Under 12 12.99
      • 10. Other Statutory Immunities
        • a. Miscellaneous Immunities Under Government Claims Act 12.100
        • b. Statutory Immunities Provided by Other Statutes 12.101
  • IV. PUBLIC EMPLOYEE LIABILITY, DEFENSES, AND IMMUNITIES
    • A. Liability
      • 1. Basic Principles
        • a. Scope of Employee Liability for Dangerous Conditions 12.102
        • b. Practical Significance of Employee Liability 12.103
        • c. Broader Scope of Entity Liability 12.104
        • d. Additional Proof to Establish Employee Liability 12.105
      • 2. Elements for Plaintiff to Establish 12.106
        • a. Dangerous Condition of Public Property 12.107
        • b. Proximate Cause 12.108
        • c. Foreseeable Risk of Kind of Injury Incurred 12.109
        • d. Fourth Element of Employee Liability Under Govt C §840.2(a) or (b) 12.110
          • (1) Creation of Condition by Employee's Negligent or Wrongful Act: Govt C §840.2(a)
            • (a) In General 12.111
            • (b) Authority and Means to Avoid Danger Required 12.112
          • (2) Negligent Failure to Protect Against Dangerous Condition: Govt C §840.2(b)
            • (a) Actual or Constructive Notice 12.113
            • (b) Authority, Responsibility, and Means to Avoid Danger 12.114
    • B. Defenses and Immunities
      • 1. Checklist: Defenses and Immunities to Consider 12.115
      • 2. Specific Defenses
        • a. Reasonableness of Act or Omission Creating Condition 12.116
        • b. Reasonableness of Protective Measures or Inaction 12.117
        • c. Defenses Available to Private Persons 12.118
      • 3. Dangerous Condition Immunities
        • a. Immunities Under Government Claims Act 12.119
        • b. Other Statutory Immunities 12.120
  • V. PROCEDURAL ASPECTS OF DANGEROUS CONDITION CASE
    • A. Preliminary Considerations
      • 1. Selecting Defendants
        • a. Proper Public Entity; Multiple Public Entities 12.121
        • b. Public Employees and Public Entities 12.122
        • c. Public and Private Defendants 12.123
      • 2. Satisfying or Avoiding Claims Presentation Requirements 12.124
    • B. Pleading Cause of Action
      • 1. Alternative Recovery Theories Available 12.125
        • a. Inverse Condemnation 12.126
        • b. Nuisance 12.127
        • c. Vicarious Liability for Independent Contractor Torts 12.128
        • d. Failure to Discharge Mandatory Duty 12.129
        • e. Negligent Operation of Motor Vehicle 12.130
        • f. Multiple Theories 12.131
      • 2. Pleading Liability Conditions 12.132
        • a. Dangerous Condition 12.133
        • b. Causation and Notice 12.134
      • 3. Sample Allegation: Sidewalk Defect Created by Public Entity 12.135
      • 4. Sample Allegation: Sidewalk Defect With Constructive Notice 12.136
      • 5. Plaintiff: Avoiding Statutory Immunities
        • a. General Rule; When Facts Should Be Pleaded to Avoid Immunity 12.137
        • b. Alleging Nonexoneration 12.138
    • C. Defendant: Pleading Affirmative Defenses and Immunities 12.139
    • D. Selected Problems of Proof
      • 1. Avoiding Dismissal Under Trivial Risk Rule 12.140
      • 2. Establishing Immunity for Approved Plan or Design 12.141
        • a. Reasonableness of Approval: Substantial Evidence Test 12.142
        • b. Accident History as Evidence to Support or Terminate Immunity 12.143
        • c. Avoiding Immunity Because of Independent Tortious Act 12.144
      • 3. Happening of Accident Not Evidence of Dangerous Condition 12.145
      • 4. Res Ipsa Loquitur 12.146
      • 5. Evidence of Occurrence or Absence of Other Accidents
        • a. Proof of Dangerous or Defective Condition 12.147
        • b. Proof of Notice 12.148
        • c. Discovery 12.149
      • 6. Evidence of Subsequent Precautions 12.150
      • 7. Expert Testimony on Dangerous Nature of Condition 12.151
      • 8. Evidence of Written Standards or Guidelines 12.152
    • E. Jury Instructions
      • 1. General Considerations 12.153
      • 2. Specific Issues 12.154
        • a. Proof That Property Was Used Carefully 12.155
        • b. When Court Must Avoid Instruction That Common Law Negligence Is Issue Against Public Entity 12.156
        • c. When Common Law Negligence Is Issue 12.157
      • 3. Jury Instructions 12.158

13

Federal Civil Rights Act

Timothy T. Coates

Jeffrey T. Miller

  • I. SCOPE OF CHAPTER 13.1
  • II. FEDERAL CIVIL RIGHTS ACT (42 USC §1983)
    • A. Description and Use 13.2
      • 1. Violation of Cognizable Interest Required 13.3
      • 2. Necessity of Action Under Color of State Law 13.4
        • a. Determining Whether Action Under Color of State Law 13.5
        • b. State Action Found (Examples) 13.6
        • c. State Action Not Found (Examples) 13.7
      • 3. Causation 13.7A
    • B. Proper Forum
      • 1. Concurrent Jurisdiction of State and Federal Courts; Removal 13.8
      • 2. Supplemental Jurisdiction Concerning State and Federal Claims 13.9
  • III. PROCEDURAL CONSIDERATIONS IN BRINGING FEDERAL ACTION
    • A. Federal Substantive Law Controls 13.10
      • 1. State Immunities and Claims-Presentation Requirements Inapplicable 13.11
      • 2. Statute of Limitations
        • a. Two Years in California 13.12
        • b. Accrual of Cause of Action 13.12A
        • c. Tolling of Statute 13.13
    • B. Exhaustion of State or Administrative Remedies Generally Not Prerequisite 13.14
    • C. Reversal of Conviction May Be Required When Civil Rights Claim Necessarily Implicates Validity of Conviction 13.15
    • D. Res Judicata and Collateral Estoppel Principles Given Effect 13.16
    • E. Pleading Requirements 13.17
  • IV. PROPER DEFENDANTS
    • A. Liability Attaches to "Person" 13.18
    • B. Public Entity Liability
      • 1. State and Its Officials Sued in Official Capacity Not Proper Defendants 13.19
      • 2. Municipalities and Their Agents May Be Sued
        • a. Local Agencies Constitute Persons Subject to Liability Under §1983 13.20
        • b. Action at Issue Must Be Result of Policy, Custom, or Practice of Public Entity 13.21
        • c. Action at Issue Must Violate Special Constitutional or Other Federal Right 13.22
        • d. Liability of Local Agency May Be Based on Governmental "Inaction" 13.23
        • e. Person Responsible for Unconstitutional Action Must Possess Final Policy-Making Power 13.24
        • f. Liability of Supervisory Personnel 13.25
  • V. ACTIONABLE CONDUCT
    • A. Failure to Prevent Third Party Acts Not Cognizable 13.26
      • 1. Special Relationship No Basis for Local Entity's Liability for Third Parties' Acts 13.27
      • 2. "Danger Creation" Exception to Rule That Third Party Acts Are Not Cognizable 13.28
    • B. Constitutional Violations Actionable Under §1983
      • 1. First Amendment Rights 13.29
      • 2. Fourth Amendment Rights 13.30
      • 3. Fifth Amendment Rights 13.31
      • 4. Eighth Amendment Rights 13.32
      • 5. Fourteenth Amendment Rights 13.33
        • a. Violations of Equal Protection 13.33A
        • b. Violations of Substantive Due Process 13.34
        • c. Violations of Procedural Due Process 13.35
        • d. Weight Given to Liberty Interests Over Property Interests 13.36
        • e. Conduct Cognizable for Due Process Liability 13.37
        • f. Conduct Not Cognizable for Due Process Liability 13.38
    • C. Enforcement of Rights Secured By Federal Law 13.38A
  • VI. APPLICABLE FEDERAL IMMUNITIES
    • A. Absolute Immunity
      • 1. State Legislators 13.39
      • 2. Judges and Prosecutors 13.40
      • 3. Administrative Officers Performing Judicial Functions 13.41
      • 4. Witness Testifying at Trial or in Grand Jury Proceeding 13.41A
      • 5. Government Officers Sued in Their Personal Capacity 13.42
      • 6. State Law Immunities 13.43
      • 7. Establishing Immunity 13.44
    • B. Qualified Immunity 13.45
      • 1. Standard for Qualified Immunity 13.46
      • 2. Establishing Qualified Immunity 13.47
        • a. Did Conduct Violate Constitutional Right? 13.47A
        • b. Was Right Clearly Established? 13.47B
      • 3. Overcoming Claim of Qualified Immunity 13.48
      • 4. Appeal of Denial of Qualified Immunity 13.49
  • VII. DAMAGES
    • A. Compensatory Damages 13.49A
    • B. Punitive Damages 13.49B
    • C. Federal Common Law Governs Award of Punitive Damages 13.49C
    • D. Indemnification of Punitive Damage Awards in Civil Rights Actions 13.49D
  • VIII. ATTORNEY FEES
    • A. Statutory Authority 13.50
    • B. Prevailing Party
      • 1. Plaintiff
        • a. Determination of Prevailing Party 13.51
        • b. Determination of Fees 13.52
          • (1) Effect of Contingency Fee Agreement 13.53
          • (2) Factors in Determining Reasonableness of Fee 13.54
          • (3) Enhancement of Lodestar Amount 13.54A
      • 2. Defendant 13.55
  • IX. CHECKLIST: ELEMENTS OF ACTION UNDER FEDERAL CIVIL RIGHTS ACT (42 USC §1983) 13.56

Selected Developments

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.

See §6.29.

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.

About the Author

PROFESSOR ARVO VAN ALSTYNE received his B.A. from Yale University in 1943 and his J.D. from Yale University Law School in 1948. He received an honorary Doctor of Laws degree from the University of Utah in 1984. Professor Van Alstyne was a Deputy County Counsel for Los Angeles County from 1950 to 1953 and a consultant to the California Law Revision Commission during the drafting of the California Tort Claims Act of 1963. He served as Professor of Law at the University of California, Los Angeles, and as Professor of Law, Vice President, and Executive Assistant to the President of the University of Utah.

About the 2017 Update Authors

DANIEL P. BARER (chapter 11) received his B.A. in 1987 from the University of California, Los Angeles, and his J.D. in 1990 from the University of California, Hastings College of the Law. Mr. Barer is a partner in the law firm of Pollak, Vida & Fisher in Los Angeles, where he represents public entities and employees as well as private civil defendants in the trial and appellate courts. Mr. Barer has been certified as a specialist in appellate law by the State Bar of California Board of Legal Specialization.

ROBERT C. CECCON (chapters 5–6) received his B.A. from Columbia University in 1981 and his J.D. from the University of California, Los Angeles, School of Law in 1984. He is a shareholder in the Litigation Department of Richards, Watson & Gershon in Los Angeles, specializing in representing governmental entities in litigation in a variety of areas. Mr. Ceccon also represents private litigants.

GERALD A. CLAUSEN (chapters 7–8) received his B.A. from Occidental College and his J.D. from the University of California, Hastings College of the Law, in 1981. Mr. Clausen, of the Law Office of Gerald Clausen, is a State Bar certified appellate specialist. He handles plaintiff-side appeals and related matters, primarily in the areas of tort, employment, and insurance law. He writes and lectures frequently on public entity tort liability.

TIMOTHY T. COATES (chapter 13) received his B.A. from the University of Southern California and his J.D. from the University of California, Los Angeles, School of Law. He is a partner with Greines, Martin, Stein & Richland LLP in Los Angeles, and he devotes a substantial portion of his practice to representing public entities in a wide variety of matters, including tort liability, land use, inverse condemnation, public utility regulation, and labor and employment proceedings, with a particular emphasis on federal civil rights claims under 42 USC §1983.

JOHN P. DEVINE (chapters 9–10) received his B.A. from the University of California, Davis, and his J.D. from the University of Oregon School of Law. Mr. Devine is the Supervising Deputy Attorney General in the Tort and Condemnation Section of the San Francisco Office of the California Attorney General.

KENNETH G. NELLIS (chapter 12) received his B.A. from the College of William & Mary and his J.D. from the University of Illinois College of Law. Mr. Nellis is a sole practitioner in Oakland, formerly with the State Department of Transportation, who specializes in government tort law and appellate practice.

ROBERT J. WALDSMITH (chapters 1–4) received his B.S. from the University of California, Berkeley, and his J.D. from Golden Gate University School of Law in San Francisco. Mr. Waldsmith is a partner at Abramson Smith Waldsmith, LLP in San Francisco, where he specializes in civil litigation, including cases involving uninsured and underinsured motorists.

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