Selected Developments
February 2023 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 2022 update.
Representation of Claimant or Defendant
Contingency Fee Contracts in Actions Against Health Care Providers. Business and Professions Code §6146(a) was amended to limit the contingency fee that an attorney may contract for in a professional negligence action against a health care provider based on whether recovery in the action is pursuant to settlement agreement and release of all claims before a civil complaint or demand for arbitration is filed, or pursuant to settlement, arbitration, or judgment after a civil complaint or demand for arbitration is filed. For actions that are tried in court or arbitrated, an attorney may seek a higher contingency fee supported with evidence establishing good cause for the higher fee. The amendment applies to lawsuits filed after January 1, 2023. See §2.28.
Periodic Payments From Health Care Providers. Code of Civil Procedure §667.7(a) was amended to increase the minimum amount of the judgment required to request periodic payments in a professional negligence action against a health care services provider from $50,000 to $250,000. See §§2.28, 8.79.
Preparation, Presentation, and Consideration of Claim
Delayed Discovery in Childhood Sexual Assault Cases. Code of Civil Procedure §340.1(s) adds an exemption from claims presentation requirements for childhood sexual assault claims, similar to Govt C §905(m). See §6.29.
Content and Form of Notice. In Andrews v Metropolitan Transit Sys. (2022) 74 CA5th 597, the court held that a public entity’s failure to include the entire mandatory warning required under Govt C §913(b) rendered the claim rejection notice noncompliant. See §6.53.
Late Claim Proceedings; Tolling Limitation Period
Substantial Compliance or Timely Filing. In Simms v Bear Valley Community Healthcare Dist. (2022) 80 CA5th 391, the court recognized the split of California appellate authority on the question of whether petitioners may assert that their claims were timely presented when seeking judicial relief from claim requirements under Govt C §946.6, or whether that argument may be raised only by filing suit and alleging compliance with claims presentation requirements. The court held that when “the analysis does not rest on disputed issues of fact better postponed for determination by a jury, ‘the issue of timely filing of a claim may be determined in a claim-relief proceeding.’” See §§6.32, 7.10.
COVID-19 Tolling. The Governor of California’s executive orders extending the deadline to present a claim under the Government Claims Act do not apply to the deadline for presenting an application to a public entity for late-claim relief under Govt C §911.4. See Coble v Ventura County Health Care Agency (2021) 73 CA5th 417. See §§6.35, 7.47.
General Principles of Public Entity and Public Employee Liability
No Mandatory Duty. In Srouy v San Diego Unified Sch. Dist. (2022) 75 CA5th 548, the court held that a school district did not have a mandatory duty under Cal Const art IX, §5 (“free school guarantee”) or Ed C §§44807, 44808 to defend a former student in a lawsuit brought by a referee who was injured during a high school football game. See §9.31.
In County of San Bernardino v Superior Court (2022) 77 CA5th 1100, the court held that the county and the county registrar of voters do not have a mandatory duty under Cal Const art XIII C, §3 or Elec C §9107 to inform a proponent of the correct number of signatures required for an initiative petition. See §9.31.
Discretionary Authority. In County of Santa Clara v Superior Court (review granted July 27, 2022, S274927; opinion at 77 CA5th 1018 to remain published and citable for persuasive value), the court held that there was no purely mandatory duty under Health & S C §1371.4(b) (Knox-Keene Act) that would trigger a Govt C §815.6 exception to government immunity. Although the duty to reimburse for emergency services and care is mandatory under Health & S C §1371.4(b), the county has discretion to determine the “reasonable and customary value” of services. See §9.34.
Damages Recoverable. The California Supreme Court granted review in X.M. v Superior Court (review granted Dec. 1, 2021, S271478; opinion at 68 CA5th 1014 to remain published and citable for persuasive value), and deferred all further action in the matter pending the consideration and disposition of a related issue in Los Angeles Unified Sch. Dist. v Superior Court (review granted Sept. 1, 2021, S269608; opinion at 64 CA5th 549 to remain published and citable for persuasive value), which is under review to decide if Govt C §818 precludes an award of treble damages under CCP §340.1(b)(1) when a child has been sexually abused as a result of the defendant’s cover-up. See §9.45.
Duty Arising From Special Relationship. In Doe v Lawndale Elementary Sch. Dist. (2021) 72 CA5th 113, the court held that a school district had a special relationship with a student such that its administrators had a duty to use reasonable measures to protect the student from foreseeable injury caused by a teacher’s sexual assault. See §§9.53, 9.54.
In Achay v Huntington Beach Union High Sch. Dist. (2022) 80 CA5th 528, the court held that a school district had a duty to use reasonable means to protect a student from foreseeable injury by third parties during “school-related or encouraged functions,” when a third party stabbed the student on campus during after-school sports. See §9.54.
In Golick v State (2022) 82 CA5th 1127, the court held there was no special relationship between hostages and the responding officer or the entire Sheriff’s Department in connection with an incident involving a former mental health services patient shooting and killing three hostages and then himself; the responding officer did not assume a tort duty of care to the hostages to prevent the individual from killing them when the officer attempted to apply deadly force to the individual. See §§9.55, 9.56, 9.58.
Contractual Liability. In CAM-Carson, LLC v Carson Reclamation Auth. (2022) 82 CA5th 535, the court held that a government entity may be subject to the alter ego doctrine in a breach of contract or breach of implied covenant action when the facts justify an equitable finding of liability. See §9.82.
Liabilities and Immunities in Specific Functional Areas
Statutory Immunities Outside Government Claims Act. In Silva v Langford (2022) 79 CA5th 710, the court held that a public entity may be liable under Veh C §17001 despite its employee’s immunity under Veh C §17004. See §§11.56, 11.61, 11.128, 11.144.
Statutory Immunity for Physical or Mental Examinations. In Cleveland v Taft Union High Sch. Dist. (2022) 76 CA5th 776, the court held that Govt C §855.6 immunity did not apply to all portions of a school district’s “threat assessment” of a high school student who later shot a fellow student on campus, with the exception of the mental examination of the student. Further, the immunity is not limited to health care professionals, and any public employee may qualify for immunity, as long as the examination in question meets Govt C §855.6’s other requirements. See §§11.88, 11.91, 11.93.
Statutory Immunity for Injury in Course of Pursuit by Peace Officer. In Flores v City of San Diego (2022) 83 CA5th 360, the court held that vehicle pursuit training provided to police officers must satisfy the Peace Officers Standards and Training Program Regulation 1081 governing High-Speed Vehicle Pursuit Training, which requires a minimum of 1 hour of training annually, in order to qualify for immunity under Veh C §17004.7. See §11.142.
Dangerous Condition of Public Property
Trivial Risk Statutorily Excluded. In Nunez v City of Redondo Beach (2022) 81 CA5th 749, the court held that a public entity’s maintenance policy, which would require repair of a defect, is not determinative of whether the defect is trivial, and does not by itself create a triable issue of fact. See §12.21.
Proximate Cause. In C.I. v San Bernardino City Unified Sch. Dist. (2022) 82 CA5th 974, the court held there was no causal connection between the students’ injuries and the alleged dangerous condition at school, consisting of an unlocked door or lack of lockable doors, when a teacher’s husband, a known trusted visitor with no history of violence, gained entry consistent with school visitor practices and then shot and killed the teacher and a student. See §§12.36, 12.40.
Length of Time Defect Has Existed. In Martinez v City of Beverly Hills (2021) 71 CA5th 508, the court assessed the conspicuity of a divot located in an alley, and held that based on all the existing circumstances, the defect was not obvious as a matter of law because it lacked sufficient conspicuity to impute notice to the city. See §12.47A.
Recreational Activities. In Mubanda v City of Santa Barbara (2022) 74 CA5th 256, the court held that the hazardous recreational activity immunity under Govt C §831.7 applied in the case of a stand-up paddle boarder who drowned in the city harbor, and the gross negligence and failure to warn exceptions did not apply. See §§12.90, 12.91.
Discovery. In State ex rel Dep’t of Transp. v Superior Court (2022) 77 CA5th 998, the court held that unredacted accident reports were discoverable under Veh C §20012 when prior accidents occurred at the same location and under similar circumstances, thus establishing the plaintiff’s proper interest in the reports. See §12.149.
Federal Civil Rights Act
Bivens Actions. In Egbert v Boule (2022) ___ US ___, 142 S Ct 1793, the U.S. Supreme Court emphasized again that a cause of action under Bivens v Six Unknown Named Agents (1971) 403 US 388, 91 S Ct 1999, is a “disfavored judicial activity,” and declined to extend Bivens to a new Fourth Amendment cause of action for excessive force or to a new cause of action for First Amendment retaliation. See §§13.2, 13.29.
When Civil Rights Claim Implicates Validity of Conviction. In Lemos v County of Sonoma (9th Cir 2022) 40 F4th 1002, the en banc panel held that Heck v Humphrey (1994) 512 US 477, 114 S Ct 2364, did not bar the plaintiff’s excessive force claim when the plaintiff had been charged with various acts of resisting arrest and it could not be discerned from the record which act had formed the basis of the jury’s conviction. See §13.15.
First Amendment Rights. In Kennedy v Bremerton Sch. Dist. (2022) 597 US ___, 142 S Ct 2407, the U.S. Supreme Court held that the defendant violated the free exercise and free speech rights of a high school football coach who had been terminated for praying at mid-field at the conclusion of games. See §13.29.
In Shurtleff v City of Boston, MA (2022) ___ US ___, 142 S Ct 1583, the U.S. Supreme Court held that a city violated the plaintiff’s free speech rights by refusing to display a flag bearing a cross on a flag pole in front of city hall. See §13.29.
In Garnier v O’Connor-Ratcliff (9th Cir 2022) 41 F4th 1158, the court held that the public social media pages of members of the school district board of trustees were designated public fora for free speech clause purposes. See §13.29.
Fourth Amendment Rights. In Thompson v Clark (2022) ___ US ___, 142 S Ct 1332, the U.S. Supreme Court for the first time recognized a malicious prosecution claim under the Fourth Amendment, although the court declined to fully define the elements of such a claim, and three dissenting justices opined that there was no such claim. See §§11.11, 13.30.
Fifth Amendment Rights. In Vega v Tekoh (2022) ___ US ___, 142 S Ct 2095, the U.S. Supreme Court held that a mere violation of Miranda, without a showing of coercion in violation of the Fifth Amendment, could not support a due process claim by a plaintiff who was acquitted. See §13.31.
Qualified Immunity. In Allen v Santa Clara County Correctional Peace Officers Ass’n (9th Cir 2022) 38 F4th 68, the court held that a municipality could invoke a good faith defense to certain refund claims, as a municipality is generally permitted to assert any defense available to a corporate entity. See §13.45.
In Rivas-Villegas v Cortesluna (2021) ___ US ___, 142 S Ct 4, the U.S. Supreme Court held that a police officer was entitled to qualified immunity because no existing case law would have put him on notice that placing his knee against an armed suspect’s back for 8 seconds during handcuffing might constitute excessive force. See §13.47B.
In City of Tahlequah, OK v Bond (2021) ___ US ___, 142 S Ct 9, the U.S. Supreme Court held that police officers were entitled to qualified immunity because no prior case indicated that merely following a suspect into a confined space, thus prompting the suspect to seize and brandish a weapon, and resulting in the use of deadly force, could support a Fourth Amendment claim. See §13.47B.
