Case Law Update: Top Ten Tort Cases of the Year Plus some extra ones

Case Law Update: Top Ten Case Law Update: Top Ten Tort Cases of the YearTort Cases of the Year

Plus some extra onesPlus some extra ones

SpeakersSpeakers

• Judy L. McKelvey

• Daniel P. Barer

• Pollak, Vida & Fisher

• Los Angeles, CA

Qualified ImmunityQualified Immunity

• Officers detain the brother and sister-in-law of a car theft suspect, who are in a car without a public VIN. They search the couple’s house, mistakenly believing they have permission to do so. They arrest the couple, and hold them until they confirm their car wasn’t stolen.

• The couple sue the officers under 42 U.S.C. § 1983 (federal constitutional rights statute) and CC § 52.1 (Bane Act --state constitutional rights statute).

• The officers assert qualified immunity as to both statutes.


• Can the officers assert qualified immunity as to the § 1983 cause of action?

• Yes.• Can they assert it as to the Bane Act

cause of action?• No.• Venegas v. County of Los Angeles

(Venegas III) (2007) 153 Cal.App.4th 1230.


• Benefits of Bane Act: – Attorney fees under both Bane Act & § 1983.– Can assert rights secured under either federal or state

constitutions or laws.• Limitations on Bane Act:

– Requires claim; § 1983 doesn’t.– Requires violation of rights by threats, intimidation or

coercion.– Cannot be based on speech unless the speech

threatens violence against person or group; is reasonably understood to threaten violence; and accompanied by present ability.

School LawSchool Law

• During a school sanctioned and supervised off-campus event, a student holds up a banner reading, “BONG HITS 4 JESUS.”

• The principal interprets the banner as promoting drugs.

• The student meant the sign as “meaningless and funny.”


• Does the school violate the student’s First Amendment rights by disciplining him?

• No.• Morse v. Frederick (2007) __ U.S. __ [127

S.Ct. 2618].• Principal may restrict student speech

reasonably viewed as promoting illegal drug use, even if it does not disrupt school work and discipline.


• Resolves split – interpret speech from viewpoint of school administrator, as long as interpretation reasonable.

• Apply to humorous threats of violence?

• Extend to extracurricular communication about students and teachers?

Police PursuitsPolice Pursuits

• A county deputy observed a speeding motorist and attempted to pull the driver over. The speeding driver sped away, and a high-speed chase by several officers ensued. After hitting one of the officer’s vehicles, the suspect sped away down a two-lane highway.

• Ten miles later, one of the pursuing officers intentionally hit the rear of the fleeing suspect’s vehicle with his own front bumper, causing the suspect’s vehicle to overturn. The fleeing suspect was rendered a quadriplegic as a result of the crash.

• The injured suspect sued the officer and the county, alleging use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. The defendants filed a motion for summary judgment based on qualified immunity.

Police PursuitsPolice Pursuits

• Can an officer take actions that place a fleeing motorist in risk of serious injury or death to prevent further danger to the lives of innocent bystanders?

• Yes.• The car chase initiated by the fleeing motorist posed a

substantial and immediate risk of serious physical injury to others. The officer’s actions were reasonable and necessary to protect the lives of innocent bystanders.

• He was therefore entitled to qualified immunity against the suspect’s excessive force claim.

• Scott v. Harris (2007) ___ U.S. ___ [127 S.Ct. 1769].

Release of InformationRelease of Information

• When he was 15, plaintiff was accused of, but not prosecuted for, molesting his nephew. Details concerning the alleged molestations were entered into a statewide victims-of-crime computer database.

• Plaintiff’s parents and stepparents obtained court orders prohibiting plaintiff, then still a minor, from visiting his minor stepsiblings.

• A decade later, when plaintiff was an adult, plaintiff’s stepmother sought to set aside the visitation prohibition. The fact that plaintiff had been accused of molestation while he was a juvenile was placed in the public record via an evidentiary letter filed in opposition to the stepmother’s requested order.

• Plaintiff sued the county and the stepmother, alleging invasion of privacy based on the evidentiary letter.

• The county moved for nonsuit based on Civil Code § 47(b)’s litigation privilege.

Release of InformationRelease of Information

• Does the litigation privilege bar suit against a county for violating constitutional rights to privacy by revealing past criminal accusations against a juvenile for use in a family law proceeding?

• Yes.• The litigation privilege of Civil Code § 47(b) -- which

generally protects from tort liability any publication made in connection with a judicial proceeding -- protected the evidentiary letter.

• The privilege extends to causes of action based on California’s constitutional right to privacy.

• Jacob B. v. County of Shasta (2007) 40 Cal.4th 948.

Prosecutorial LiabilityProsecutorial Liability

• While in jail awaiting his murder trial, petitioner confessed to another inmate. The other inmate informed the DA’s office of petitioner’s confession, and received benefits from the DA’s office in exchange for his testimony against petitioner in the murder trial.

• During his trial testimony regarding petitioner’s jailhouse confession, the informant testified that he received no benefits from his testimony against petitioner.

• Petitioner was convicted of murder.• Petitioner sued the DA under 42 U.S.C. § 1983 for deprivation of

due process. He alleged that the informant’s testimony about the confession and about his non-receipt of benefits was false; and that members of the DA’s office failed to adequately train or supervise the sharing of information concerning jailhouse informants within the office, ultimately depriving petitioner of an opportunity to impeach the informant.

• Defendants moved to dismiss based on absolute immunity.

Prosecutorial LiabilityProsecutorial Liability

• Are district attorneys entitled to absolute immunity under § 1983 for office policies concerning the use of jailhouse informants?

• No. • Absolute immunity applies only to acts closely associated with the

judicial process. It does not extend to administrative acts.• The DA’s office has a constitutional obligation to ensure that

information regarding jailhouse informants is shared among prosecutors in their office.

• Compliance with that obligation is an administrative -- rather than a prosecutorial -- function, so the immunity is qualified, not absolute. Although the DA’s office’s purported failures related to trial preparation, they lacked close association with the judicial phase of petitioner’s trial.

• Goldstein v. City of Long Beach (2007) 481 F.3d 1170.

InvestigationsInvestigations

• A former student accuses her high school coach of molesting her. The investigating officers arrest the coach; book him; and release him an hour later. They then hold a press conference, at which they announce the arrest and ask for anyone with information about other molestations to step forward. The DA decides not to press charges against the coach.

• The coach sues the officers and their employer under the Bane Act for the arrest; and for IIED and defamation arising out of the statements to the press.

• The court determines the officers lacked probable cause to arrest.

InvestigationsInvestigations

• Are the officers liable under the Bane Act for the arrest?

• Yes.• Are the officers liable for IIED or defamation?• No.• “Unlawful” arrest does not deprive officers of

immunity under Govt Code § 821.6.• Gillan v. City of San Marino (2007) 147

Cal.App.4th 1033.• Issue: Segregating damages.

EmploymentEmployment

• Plaintiff, a mid-level supervisory city engineer, opposed his own supervisor’s termination of one of the subordinate employees supervised by plaintiff, on grounds that the termination was racially discriminatory. The subordinate employee was eventually reinstated with back pay.

• Plaintiff engineer filed a retaliation action against the city and his supervisor under the Fair Employment and Housing Act (FEHA), alleging that he suffered adverse employment actions in retaliation for his opposition to racial discrimination against the subordinate employee. The alleged retaliatory acts included being stripped of his supervisory position, excluded from meetings, deprived of necessary information, removed from important contracts, and slandered.

• Defendants alleged that the alleged retaliatory acts were in fact discretionary acts and thus subject to immunity under Govt C § 820.2.

EmploymentEmployment

• Issue of first impression: Is failure to prevent retaliation actionable under FEHA?

• Yes. • The supervisor’s department’s failure to prevent retaliation against the

complaining employee was actionable under Government Code § 12940(k).• Does the discretionary acts immunity protect a supervisor accused of

imposing adverse employment actions in retaliation for an employee’s protests opposing racial discrimination against a co-worker?

• No.• As presented here, the supervisor’s retaliatory actions were not accorded �

discretionary immunity under the Government Tort Claims Act § 820.2, because plaintiff stated a prima facie retaliation case under FEHA.

• Taylor v. City of Los Angeles Department of Water and Power (2006) 144 Cal.App.4th 1216.

Local LegislatorsLocal Legislators

• A few city council members believed that city council meetings were being conducted so late into the night that members of the public could not exercise their rights to participate in the public comment portion of such council meetings.

• Those council members individually sued their city, alleging that by allowing council meetings to continue past a specified time, other city council members were violating state and local constitutions and the Ralph M. Brown Act.

• The action against the city sought an injunction prohibiting future council meetings from continuing past a specified time.

• The city filed an anti-SLAPP motion, alleging that the individual council members’ action violated the public’s and the non-suing council members’ free speech rights.

Local LegislatorsLocal Legislators

• Do individual city council members have standing to sue a city for Brown Act violations by the body of which they are members, or to sue under OSHA or federal or state constitutions, for council meetings that run late?

• No. • The individual council members’ action against the city implicated their

fellow council members’ free speech rights; and was subject to motion to strike under anti-SLAPP law.

• Individual council members lack standing to sue over meeting length or for Brown Act violations by a city council.

• The “public interest” exception to anti-SLAPP law does not apply to actions brought to further a plaintiff’s interest in shortening public meetings, particularly where the relief sought would actually cause the meetings to end before members of the public could exercise their public comment rights.

• Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242.

Trail ImmunityTrail Immunity

• A plaintiff walking her dog on a paved pathway in a dog park slipped on debris, grabbed an exposed cement ledge as she fell, and was injured.

• Another plaintiff negotiated a tight turn on a Class I bike path and slammed into the path’s chain link fence.

• Both sue the public entities that own the respective paths. Both allege the paths on which they were injured were improperly designed.


• Were the public entities that owned the paths immune from dangerous condition liability?

• Yes.• Govt Code § 831.4(b) (recreational trail immunity):

– Applies to both paths and trails.– Applies to design and location of the path, as well as

maintenance.– Applies to paved and unpaved paths, if used for the purposes

outlined in § 831.4(a).– Applies to integral parts of path, such as gateways and fences.– Applies to “special relationship” and “mandatory duty” theories.

• Plaintiff can’t avoid immunity by calling path a “sidewalk” if location and purpose show it is a recreational path.


• Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074 (dog park path);

• Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332 (bike path).

• Issue: Does the immunity apply to nonusers?

Claim Procedure and Pleading Claim Procedure and Pleading RoundupRoundup

• Westcon Const. Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183:– MSJ for untimely claim not defeated by issue re: date of accrual,

if undisputed accrual was beyond claim deadline.– Documents asking for payment sent to a county employee,

rather than a statutorily-designated recipient, neither substantially complies with claim requirements nor is a “claim as presented”

• Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83:– Plaintiff’s incapacity and lack of guardian/conservator does not

toll statute of limitations for filing complaint against public entity.– Appeal of denial of late-claim petition can toll statute of

limitations.

Claim Procedure and Pleading Claim Procedure and Pleading RoundupRoundup

• Jordan v. City of Sacramento (1977) 148 Cal.App.4th 1487: – City’s mistaken assertion of law -- that it is not responsible for

accident – does not estop it from asserting statute of limitations, if the plaintiff was represented by counsel.

– C.f., bad faith; confidential relationship with claimant (e.g., pensioner).

• Sofranek v. Merced County (2007) 146 Cal.App.4th 1238– If plaintiff amends claim after entity sends six-month rejection

notice, entity need not serve another notice in response to amended claim to preserve six-month statute of limitations.

– If entity nevertheless does serve second six-month rejection notice, it’s estopped from asserting statute of limitations ran from first notice.

Other ResourcesOther Resources

• Our firm’s Website -- www.govlawweb.com

• The Claim Book, 3rd Edition

• California Government Tort Liability Practice (CEB)

Thank You!Thank You!

• Judy L. McKelvey

• Daniel P. Barer

• Pollak, Vida & Fisher