February 2022 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 2021 update.
Preparation, Presentation, and Consideration of Claim
Signatories. A claim may be presented by a third person acting on the claimant’s behalf, but problems arise when attorneys or medical providers sign and present claims without the claimant’s permission. In Cavey v Tualla (2021) 69 CA5th 310, the court of appeal, referring to this publication as “‘the leading treatise on the Government Claims Act,’” held that a claim is a nullity, and has no legal effect, unless the claimant knowingly and intentionally authorized the third person to present the claim, or knowingly and intentionally ratified the claim after it was presented. See §6.7.
Late Claim Proceedings; Tolling Limitation Period
COVID-19 Tolling. On March 21, 2020, the Governor of California issued an executive order extending the deadline to present a claim under the Government Claims Act by 60 days. The 60-day extension was later further extended to a total of 120 days. On June 11, 2021, it was ordered that the 120-day extension was ending but still applies to claims that accrued before June 30, 2021. See §§5.1, 6.35, 7.47.
Minority or Incapacity. Government Code §911.6 was amended to permit a late claim if the applicant was a minor or was incapacitated during any of the claims presentation period; minority or incapacity during all of the claims period is no longer required. The application must be made no later than 6 months after the claimant reaches majority or regains capacity, or 1 year after the claim accrues, whichever occurs first. See §§7.39–7.40.
General Principles of Public Entity and Public Employee Liability
Damages Recoverable. The California Supreme Court has granted review 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 until further order) to decide if Govt C §818, which generally bars punitive damages against public entities, 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 also X.M. v Superior Court (2021) 68 CA5th 1014, 1031. See §9.45.
Duty Arising From Special Relationship. In Brown v USA Taekwondo (2021) 11 C5th 204, the California Supreme Court set forth a two-part framework for determining whether a defendant owed a duty of care to a plaintiff. The first step is to determine whether the defendant performed an act that increased the risk of injury to the plaintiff, or sits in a special relationship (with either the plaintiff or the person causing harm) giving rise to an affirmative duty to protect the plaintiff. If the special relationship is established, the court must then consult the factors described in Rowland v Christian (1968) 69 C2d 108 to determine whether it should apply relevant policy considerations to limit the duty of care. This update includes an analysis applying the Brown framework to suits against law enforcement agencies and to causes of action against municipalities for negligent hiring, supervision, or retention of law enforcement personnel. See §§9.53, 11.48.
Inverse Condemnation. In Cedar Point Nursery v Hassid (2021) ___ US ___, 141 S Ct 2063, the United States Supreme Court held that a California regulation, which granted labor organizations the “right to take access” to an agricultural employer’s property in order to solicit support for unionization, constituted a per se physical taking requiring compensation. See §§9.63, 9.72.
In Felkay v City of Santa Barbara (2021) 62 CA5th 30, the court of appeal held that, although a takings claim challenging the application of a land use regulation is not ripe unless the public entity has reached a final decision, the owner of an oceanfront lot was not required to submit a second development proposal before bringing a claim for denial of a coastal development permit, as any additional proposals would have been futile. See §9.72.
Immunities of Public Entities and Employees
Civil Rights Claims Against Police, Jailers, or Jail Medical Providers. Effective January 1, 2022, the Tom Bane Act (CC §52.1) was amended to make the prosecutorial immunity provisions of Govt C §821.6 inapplicable to Bane Act claims against peace officers and the public entities that employ them. Under previous law, damages for false arrest/false imprisonment were only recoverable up until arraignment. In addition, the immunity provisions in Govt C §844.6 (injury to prisoners) and §845.6 (failure to provide medical care to prisoners) no longer apply to claims against custodial officers and the public entities that employ them. See CC §52.1(n) (Stats 2021, ch 409). See §§9.80A, 10.43, 10.45, 11.6, 11.8, 11.15, 11.27.
National Guard Members. The legislature clarified that members of the California National Guard are not immune from liability for sexual assault or sexual harassment because they are by definition done outside the performance of military duty. Mil & V C §392(b). See §10.71.
False Arrest and Malicious Prosecution. The question of whether immunity under Govt C §821.6 is limited to actions for malicious prosecution—i.e., for conduct occurring after a legal proceeding exists, not actions taken more broadly in the course of a police investigation—is currently pending before the California Supreme Court. Leon v County of Riverside (review granted Aug. 18, 2021, S269672, opinion at 64 CA5th 857 to remain published and citable under further order). See §11.8.
In City of Los Angeles v Superior Court (Wong) (2021) 62 CA5th 129, the court applied Govt C §855.4 immunity (immunity for public health decisions) to a failure to rid a police station of typhus-carrying rats. See §11.90.
Dangerous Condition of Public Property
Element of Property or Adjacent Property. In City of Los Angeles v Superior Court (Wong) (2021) 62 CA5th 129, the court of appeal clarified that liability for hazards extending beyond public property boundaries is limited to circumstances in which the injury resulted from physical contact with the condition of public property, and held that a city had no duty to spouse of police officer who contracted typhus from officer, but had no contact with the police station and alleged no exposure to any condition of that property. See §§12.24, 12.55.
Design Immunity. In Menges v Department of Transp. (2020) 59 CA5th 13, the court of appeal held that the location of an exit built 4 feet south of the location depicted in defendant’s design plans substantially conformed with the approved plan. See §§12.29, 12.71.
The California Supreme Court granted review in Tansavatdi v City of Rancho Palos Verdes (review granted Apr. 21, 2021, S267453, opinion at 60 CA5th 423 to remain published and citable for persuasive value) to resolve a split of authority on the question whether a public entity can be held liable under Govt C §830.8 for failure to warn of an allegedly dangerous design that is covered by Govt C §830.8 design immunity. The court of appeal in Tansavatdi held that design immunity, which applied to a city’s removal of a bicycle lane, precluded the plaintiff’s dangerous condition claim, but the city could still be liable for failure to warn of a dangerous condition arising from the same absence of a bicycle lane. The ruling also seemingly departs from previous design immunity law in that it does not expressly limit the plaintiff’s failure to warn claim to the “trap” exception in Govt C §830.8. See §12.79.
Natural Conditions of Unimproved Property. In City of Chico v Superior Court (McKenzie) (2021) 68 CA5th 352, the court of appeal held that human-made pathways adjacent to a tree did not alter the unimproved nature of the area where the tree was growing, nor did they affect the tree and cause a branch to fall on a jogger. See §§12.82–12.83.
Vicarious Liability for Independent Contractor Torts. The California Supreme Court held in Sandoval v Qualcomm Inc. (2021) 12 C5th 256 that, when there is a known hazard on the premises, a landowner’s negligent failure to undertake safety measures cannot be the sole basis for liability to a contractor’s employees, as long as the owner sufficiently disclosed the hazard and did not affirmatively contribute to the injury. In Gonzalez v Mathis (2021) 12 C5th 29, the court held there is no liability for injuries from a known hazard when the owner did not retain control over part of the contractor’s work or affirmatively contribute to the injury; the owner owes no duty to the contractor or its workers to remedy the known hazard or take protective measures, even when the contractor is unable to adopt reasonable safety precautions. See §12.128.
Federal Civil Rights Act
Tolling of Statute of Limitations; Minors. In Shalab v City of Fontana (2021) 11 C5th 842, a 42 USC §1983 action brought by a plaintiff who was a minor at the time his father was killed by a police officer, the California Supreme Court held that a plaintiff’s 18th birthday is excluded when calculating the applicable limitations period under CCP §352. See §13.13.
Use of Force. In Lombardo v City of St. Louis (2021) ___ US ___, 141 S Ct 2239, the United States Supreme Court, in a per curiam opinion, held that, when determining if a police officer used unconstitutionally excessive force, there is no per se reasonable force standard; instead, the factors set out in Graham v Connor (1989) 490 US 386, 109 S Ct 1865, must be analyzed in the context of each use of force. See §13.30.
In Torres v Madrid (2021) ___ US ___, 141 S Ct 989, the Court held that the application of physical force to the body of a person with intent to restrain is a seizure under the Fourth Amendment, even if the person does not submit and is not subdued. See §13.30.
Qualified Immunity. In Taylor v Riojas (2020) ___ US ___, 141 S Ct 52 (per curiam), defendant correctional officers were not entitled to qualified immunity because, given the egregious nature of their alleged conduct, they had fair notice that their conduct violated the Eighth Amendment, even in the absence of a case directly on point. See §13.47.
Damages. In Valenzuela v City of Anaheim (9th Cir 2021) 6 F4th 1098, the Ninth Circuit held that CCP §377.34’s limitation against recovery of damages for a decedent’s loss of enjoyment of life does not apply to 42 USC §1983 claims. See §13.49C.