February 2019 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 2018 update.
Representation of Claimant or Defendant
New Rules of Professional Conduct. On May 10, 2018, the California Supreme Court issued an order approving new Rules of Professional Conduct, which went into effect November 1, 2018. See chaps 2 and 4.
Effect of Proposition 51. The California Supreme Court has granted review in B.B. v County of Los Angeles (review granted Oct. 10, 2018, S250734; superseded opinion at 25 CA5th 115) to determine whether a defendant who commits an intentional tort may invoke CC §1431.2, which limits a defendant’s liability for non-economic damages “in direct proportion to that defendant’s percentage of fault,” to have his liability for damages reduced based on principles of comparative fault. See §§2.17, 4.54.
Overview of Claim Procedures
Substantial compliance. There is no futility exception to the claim filing requirement; substantial compliance does not apply if there is a complete failure to serve any responsible officer of the entity. See Olson v Manhattan Beach Unified Sch. Dist. (2017) 17 CA5th 1052 in §§5.66, 5.67, 5.71, 6.45.
Waiver. A claimant may be estopped from invoking waiver under Govt C §911.3(b) if the public entity’s failure to notify the claimant that a claim was untimely was induced by the claimant’s representations on the government claim form. See Estill v County of Shasta (2018) 25 CA5th 702 in §§5.79, 5.82.
Estoppel. For a recent case discussing whether the Los Angeles Unified School District misled claimants about its relationship with the Los Angeles School Police Department (LASPD) following an accident with a LASPD vehicle, see Santos v Los Angeles Unified Sch. Dist. (2018) 17 CA5th 1065 in §§5.82, 7.25.
Preparation, Presentation, and Consideration of Claim
Childhood sexual abuse cases. Effective January 1, 2019, local public entities are prohibited from limiting under Govt C §935 the presentation requirements for claims of childhood sexual abuse under Govt C §905(m). Govt C §935(f). The California Supreme Court has granted review in Big Oak Flat-Groveland Unified Sch. Dist. v Superior Court (Doe) (review granted June 13, 2018, S247975; superseded opinion at 21 CA5th 403) to decide whether Govt C §905(m) exempts plaintiffs from asserting causes of action for childhood sexual abuse under CCP §340.1 against a local public entity from compliance with the prefiling claim presentation requirements enacted by that entity under Govt C §935(a). See §§5.25, 6.29.
Bringing the Action
Reduction of verdict to actual medical costs paid or incurred. If an insured plaintiff chooses to receive medical services outside of the insurance plan, he or she will be treated as uninsured for purposes of a reduction under Howell v Hamilton Meats & Provisions, Inc. (2011) 52 C4th 541. See Pebley v Santa Clara Organics, LLC (2018) 22 CA5th 1266 in §§8.70, 9.47.
General Principles of Public Entity and Public Employee Liability
Scope of employee duty. In Newland v County of Los Angeles (2018) 24 CA5th 676, the court found that a county employee was outside the scope of duty when commuting home from work, even though job duties sometimes required use of a personal vehicle, because he was not performing job duties on the day of the accident. See §9.14.
Limitations on entity liability. For a recent case discussing how government immunities are only available to public entities and public employees, see Lichtman v Siemens Indus. Inc. (2017) 16 CA5th 914 in §§9.24, 10.2.
Duty arising from special relationship. A special relationship exists between a postsecondary school and its students when it is engaged in activities that are part of the curriculum or closely related to educational services. See Regents of Univ. of Cal. v Superior Court (Rosen) (2018) 4 C5th 607 in §§8.56, 9.53, 9.54.
Inverse condemnation. For a recent discussion of how a plaintiff failed to establish individualized burden by a chemical treatment added to water that was piped into his home, see Williams v Moulton Niguel Water Dist. (2018) 22 CA5th 1198 in §§9.63, 9.80.
Right to sue under the California Constitution. In Krolikowski v San Diego City Employees’ Retirement Sys. (2018) 24 CA5th 537, the court held that there was no private right of action under Cal Const art XVI, §17 for the breach of fiduciary duty by public pension board members. See §§9.75D, 10.26.
Tom Bane Civil Rights Act. If a wrongful arrest is properly pleaded and proved, the “threat, intimidation or coercion” element requires a specific intent to violate protected rights. See Cornell v City & County of San Francisco (2018) 17 CA5th 766 in §9.80A.
Workers’ compensation. The California Supreme Court has granted review in Gund v County of Trinity (review granted Aug. 22, 2018, S249792; superseded opinion at 24 CA5th 185) to determine whether plaintiffs were limited to workers’ compensation for their injuries under Lab C §3366, when a deputy sheriff asked them to check on a neighbor who had made a 911 call, and the deputy allegedly misrepresented the potential danger of the situation. See §§9.90, 11.20.
General Immunities of Public Entities and Employees
Issuance of driver’s licenses. In Richardson v DMV (2018) 25 CA5th 102, the court found that the lifting of a suspension was a discretionary act, and the DMV was entitled to immunity under Govt C §818.4. See §10.65.
School-related immunities. The field trip immunity under 5 Cal Code Regs §55220 does not apply to an injury suffered by a member of a visiting team during an intercollegiate athletic event. See Anselmo v Grossmont-Cuyamaca Community College (2018) 25 CA5th 948 in §10.78.
Liabilities and Immunities in Specific Functional Areas
Medical care for prisoners. In Gordon v County of Orange (9th Cir 2018) 888 F3d 1118, the court held that Fourteenth Amendment claims for inadequate medical care provided to a pretrial detainee are decided under an objective deliberate indifference standard. See §11.19.
Injury in course of pursuit by peace officer. Although the public agency’s pursuit policy must contain the written certification requirement, the agency does not have to prove total compliance with that requirement as a condition of obtaining immunity under Veh C §17004.7(b)(2). See Ramirez v City of Gardena (2018) 5 C5th 995 in §11.142.
Dangerous Condition of Public Property
Assumption of risk. For a recent case discussing how primary assumption of risk barred an action by a fiancée thrown from a dirt bike when defendant’s behavior was not reckless and did not increase inherent risks, see Foltz v Johnson (2017) 16 CA5th 647 in §12.59.
Design immunity. In Rodriguez v Department of Transp. (2018) 21 CA5th 947, the court found that the discretionary approval element was satisfied, even though the official who approved the plan admitted he did not consider rumble strips, the absence of which feature plaintiff contended constituted the dangerous condition. See §12.70.
Unpaved access roads and recreational trails. For a recent case discussing how immunity under Govt C §831.4 also extends to injuries arising from the location or design of the trail, see Arvizu v City of Pasadena (2018) 21 CA5th 760 in §12.88.
Federal Civil Rights Act
Causation. A defendant need not have personally inflicted the constitutional injury; it is sufficient that the defendant was an “integral participant” in the event that resulted in injury. See Bonivert v City of Clarkson (9th Cir 2018) 883 F3d 865 in §13.7A. In Caldwell v City & County of San Francisco (9th Cir 2018) 889 F3d 1105, the court held that Smiddy v Varney (9th Cir 1981) 665 F2d 261 is inapplicable if the prosecutor relies on fabricated evidence, or an officer has withheld evidence from a prosecutor. See §13.7A.
Supplemental jurisdiction concerning state and federal claims. For a recent case discussing how a state statute of limitations is suspended during the federal action and for at least 30 days after dismissal of the state claims unless state law provides a longer period, see Artis v District of Columbia (2018) ___ US ___, 138 S Ct 594 in §13.9.
Reversal of conviction may be required when civil rights claim necessarily implicates validity of conviction. In Byrd v Phoenix Police Dep’t (9th Cir 2018) 885 F3d 639, the court held that plaintiff’s guilty plea to conspiracy to commit possession of a dangerous drug for sale did not bar his claims for excessive force and wrongful search under Heck v Humphrey (1994) 512 US 477, 114 S Ct 2364, because his claims had nothing to do with the evidentiary basis for his conviction; therefore, success on his civil claims would not necessarily demonstrate the invalidity of that conviction. In Martin v City of Boise (9th Cir 2018) 902 F3d 1021, the court held that, although plaintiffs’ claims for damages might be barred based on their guilty pleas to violating a statute barring sleeping on public property, their claims for injunctive relief to bar future prosecutions as violative of the Eighth Amendment could proceed. See §13.15.
Res judicata and collateral estoppel. A state court issuance of a restraining order against the defendant based on a finding that defendant violated the Fourth Amendment in searching plaintiff’s workplace bars defendant from relitigating the issue in a later 42 USC §1983 suit. See Pike v Hester (9th Cir 2018) 891 F3d 1131 in §13.16.
Liability of supervisory personnel. For a recent case discussing how university officials were not liable for excessive force by university police when officials either did not supervise police or were unaware of alleged excessive force, see Felarca v Birgeneau (9th Cir 2018) 891 F3d 809 in §13.25.
Actionable conduct. In Hernandez v City of San Jose (9th Cir 2018) 897 F3d 1125, the court held that although the city and its police department had no affirmative obligation to protect the plaintiffs from counter protestors at a demonstration, plaintiffs could properly state a due process claim based on allegations that police directed them into an area where they would be attacked, and prevented any escape. See §13.28.
First Amendment rights. Probable cause for arrest does not bar a First Amendment retaliation claim against a municipality based on the plaintiff’s arrest while speaking at a public meeting. See Lozman v City of Riviera Beach (2018) ___ US ___, 138 S Ct 1945 in §13.29.
Fourth Amendment rights. In District of Columbia v Wesby (2018) ___ US ___, 138 S Ct 577, the Supreme Court held that the standard for probable cause for arrest is “whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the explanation (of the suspect)—that there was a ‘substantial chance of criminal activity.’” See §§13.30, 13.47B.
Absolute immunity. For a recent case discussing how a County Release Assistance Officer was not entitled to absolute immunity for submitting an unsigned arrest warrant to a judge for the arrest of a plaintiff who allegedly violated the terms of a pre-trial release agreement, see Patterson v Van Ardsel (9th Cir 2018) 883 F3d 826 in §13.40.
Qualified immunity. In Kisela v Hughes (2018) ___ US ___, 138 S Ct 1148, the Supreme Court found that a police officer was entitled to qualified immunity for the use of force against a suspect who had been acting irrationally, slashing a tree with a knife, standing close to potential victim, and ignoring commands to drop the weapon because there was no clearly established law that “squarely governs” the specific facts at issue. See §13.47B.