Motion to Strike Answer Anti SLAPP Motion (CCP ) Motion for Summary Judgment In Limine Motions At Trial First Time on Appeal

Transcription

1 Recognizing and Taking Advantage of Government ti Immunities Luther Lewis and Jason Sherman Johnson Schachter & Lewis A Professional Law Corporation Sacramento, CA

2 Raising Immunities in General Demurrer/Judgment on the Pleadings Motion to Strike Answer Anti SLAPP Motion (CCP ) Motion for Summary Judgment In Limine Motions At Trial First Time on Appeal

3 Executive Privilege Civil Code 47(a) () A privileged publication or broadcast is one made: (a) In the proper discharge of an official duty. duty The executive privilege broadly encompass[es] all discretionary acts essential to the proper exercise of an executive function decision. Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1442.

4 Executive Privilege Civil Code 47(a) () Hypo: In contract dispute over whether private prison and owner misappropriated $1.6 million, Director of Department of Corrections released contract termination letter to the press which accused prison and its owner of misappropriation and illegal conspiracy.

5 Litigation Privilege Civil Code 47(b) A privileged publication or broadcast is one made: (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.

6 Examples of Proceedings Court Proceedings Board Meetings Skelly Hearings State Personnel Board Hearings Whistleblower Complaints/Investigations Investigations of Complaints Personnel Investigations Workers Comp. Investigations Complaints Designed to Prompt Action Communications in Connection with Hiring/Firing Responding to Public Records ActRequests Mandated Reports of Suspected Child Abuse

7 Litigation Privilege Civil Code 47(b) Hypo: Vocational instructor at a prison subject to internal investigation into allegations of illegal sexual activity with inmates sues for Whistleblower retaliation claiming the investigation was retaliatory for prior disclosures of illegal acts by prison.

8 Litigation Privilege Civil Code 47(b) Hypo: A group of parents verbally accuse baseball coach of being a bad coach, being unethical, having severe anger and emotional problems, and verbally and physically abusing theplayers players. Parents then submit written complaint to school board seeking termination of the coach.

9 Instituting and Prosecuting Admin. Proceedings Govt. Code A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause. Purpose is to protect public employees in the performance of prosecutorial duties from the threat of harassment through civil suits.

10 Instituting and Prosecuting Admin. Proceedings Govt. Code Not limited to prosecutors. Investigations are part of administrative proceedings. Immunity extends to investigations even if there is a later decision i not to institute i administrative proceedings or to initiate a prosecution.

11 Instituting and Prosecuting Admin. Proceedings Govt. Code Hypo: In connection with a Workers Compensation claim, investigator gained access to and videotaped employee s wedding, then followed her on her honeymoon and took photographs and videotapes of her. Richardson Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056.

12 47(b) and (b)Privilege Immunity Applies to both private and Applies only to public public entities employees Absolute privilege Absolute immunity Broad in scope and Narrow in scope chief application applies to legislative and other purpose is prosecutorial official proceedings proceedings Eg E.g. expressing an opinion during a board meeting about an issue under consideration by the board E.g. internal investigation of potentially criminal misconduct by employee

13 Anti SLAPP vs. 47(a) and (b) Anti SLAPP (1) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law. CCP (e)(1) (2) Anywritten ororalstatement oral or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law CCP (e)(2) 47(a) and (b) (a) In the proper discharge of an official duty [executive]; (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official i proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable [by writ of mandate].

14 Raising 47(a) and (b) and Anti SLAPP (CCP ) A plaintiff cannot establish a probability of prevailing if the litigation privilege [ 47(b)] precludes the defendant s liability on the claim. Digerati Holdings, LLC v. Young Money Entertainment, LLC, 194 Cal.App.4th 873, 888 (2011). If these statutes are implicated, an immediate analysis of the Anti SLAPP statute is necessary.

15 Common Interest Privilege Civil Code 47(c) () A privileged egedpublication or broadcast boadcasts is one made: (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation lti to the person interested t as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.

16 Common Interest Privilege Civil Code 47(c) () Qualified privilege a plaintiff may defeat the application by proving the publication was made with actual malice Burden to prove actual malice is on plaintiff Publication i is presumed innocent and made without malice Privilege often applies in the context of employment qualification inquiries

17 Common Interest Privilege Civil Code 47(c) () Hypo: Teacher requests administrative supervisor to submit recommendation form in support of teacher s application to a university s master s degree program. Supervisor writes he would not be willing to employ an applicant with ihthe teacher s characteristics, and I believe that teacher has some ethnocentric issues that should be addressed before moving into administration.

18 Raising Common Interest Privilege Demurrer Civil Code 47(c) () Difficult because the privilege can be defeated with evidence of actual malice Summary Judgment Presumption that communication is innocent shifts the burden to Plaintiff to produce evidence of actual malice

19 Noerr Pennington Immunity Doctrine Under the Noerr Pennington Doctrine, those who petition the government for redress are generally immune from statutory liability for their petitioning conduct. (Empress LLC v. City & County of San Francisco (9th Cir. 2000) 419 F.3d 1052, 1056.) Protects petitioning activity including acts sufficiently related to petitioning activity or conduct incidental to the prosecution of a lawsuit by both government entities and government officials. (Manistee Town Ctr. v. City of Glendale (9th Cir. 2000) 227 F.3d 1090.)

20 Noerr Pennington Immunity Doctrine Petitioning activity encompasses both filing and responding to litigation or similar proceedings. Applies to bar federal statutory liability (i.e. 42 U.S.C. 1983) as well as state law causes of action. Applies to both communications and actions or other noncommunicative conduct. E.g. strategic t conduct of consolidating Workers Compensation cases Immunity does not apply to sham petitioning conduct E.g. filing suit to harass competitors and delay licensing.

21 Raising Noerr Pennington Immunity Demurrer/Motion to Dismiss in Federal Court A heightened pleading standard is applied, requiring the plaintiff to satisfy more than the usual 12(b)(6) standard. Under this standard, the complaint will be dismissed unless it includes allegations establishing sham proceedings. Anti SLAPP to dismiss state law claims

22 Misrepresentation Govt. Code and A public entity ttyis not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional. l A public employee acting in the scope of his employment tis not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.

23 Misrepresentation Govt. Code and Absolute immunity. Qualified immunity. A public entity cannot be Publicemployee can be held liable for alleged liable for actual fraud, misrepresentations as a corruption or actual matter of law. malice.

24 Misrepresentation Govt. Code and These immunities are limited to the invasion of interests of a financial or commercial character, in the course of business dealings. Employment related claims (recruitment, hiring, firing) have been held to be sufficiently financial in character. Defamation claims can also be financial in ea a o ca sca asobe a ca character.

25 Misrepresentation Govt. Code and Hypo: Attorney hired by county claimed he was told would be hired in a permanent position, but learned after relocating his residence that it was a provisional position. Upon termination for poor interpersonal skills, professionalism, and sense of judgment, attorney sued for fraud and misrepresentation.

26 Raising Govt. Code and Demurrer absolute immunity is highly susceptible to resolution on demurrer a claim can only be stated against a public employee upon the pleading of specific facts establishing actual fraud, corruption or actual malice, and conclusory allegations are insufficient. Anti SLAPP

27 Discretionary Acts Govt. Code Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.

28 Discretionary Acts Govt. Code Applies to basic policymaking decisions Does not apply to ministerial decisions Employment Personnel decisions Decisions to institute disciplinary proceedings Student Discipline Immunity Overrides FEHA Liability as to Public Employee, but not to the Public Entity

29 Discretionary Acts Govt. Code Hypo: Members of a Board vote to terminate contract of Superintendent, who claims that theboard s decision was based on discriminatory reasons in violation of the Fair Employment and Housing Act.

30 Board Member Immunity Govt. Code Members of city councils, mayors, members of boards of supervisors, members of school boards, members of governing boards of other local public entities, members of locally appointed boards and commissions, and members of locally appointed or elected advisory bodies are not vicariously liable for injuries caused by the act or omission of the public entity or advisory body. Nothing in this section exonerates an official from liability for injury caused by that individual's own wrongful conduct. Nothing in this section affects the immunity of any other public official.

31 Adoption/Enforcement of Enactment Govt. Code and A public entity is not liable for an A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law. 821 A public employee is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment. These statutes do not apply where there is a mandatory duty to perform an act.

32 Board Immunities Hypo: Student sues claiming to have suffered bullying based on his religion and ethnicity. Student names individual board members and alleges that the Board failed to enact policies addressing harassment and bullying.

33 Raising Board Immunities Demurrer Facts are rarely alleged supporting individual board member liability In Limine Motions Exclude evidence of alleged failures to enact Exclude evidence of alleged failures to enact policies and procedures

34 Design Immunity Govt. Code Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction ti or improvement tby the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval..., ifthe trialorappellate appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design... or (b) a reasonable legislative body or other body or employee could have approved the plan or design....

35 Design Immunity Govt. Code Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient i to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity.... In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity... shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard....

36 Design Immunity Govt. Code Provides immunity where a governmental body exercises the discretion given to it under the laws of the State in the planning and designing of public construction and improvements. Rationale: prevent a jury from second guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.

37 Design Immunity Govt. Code Public entity has to prove: (1) causal nexus between design and accident; (2) discretionary approval of design before construction; (3) substantial evidence supporting reasonableness of design. Deferential standard: would any reasonable official have approved this design?

38 Design Immunity Govt. Code Injury producing feature must have been part of the approved plan. Immunity can be lost by changed conditions or notice burden shifts to plaintiff. Public entity can still be liable under GC 835. How raised: can be very fact intensive. Usually determined on summary judgment, nonsuit or directed verdict.

39 Design Immunity Govt. Code Hypo: Fall on city owned stairway. City's superintendent of maintenance had authority to approve design of handrail. Design immunity statute can apply even though design was shop drawing prepared by private firm. Factual lfinding that a reasonable employee could have adopted design was supported by substantial evidence. City immune from liability under design immunity statute.

40 Design Immunity Govt. Code Hypo: Landowners sued cityand itsengineer to recover damages from flooding due to road construction project. City not entitled to design immunity where it was not shown that the city council had approved the specific plans, where it was shown that there were deviations from the original plan, and where part of the cause of the damage was not the result of design defect but rather improper maintenance (negligence).

41 Trail Immunity Govt. Code A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which h is not a (1) city street tor highway h or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district orsimilar district formed for the improvement or building of public streets or highways. (b) Any trail used for the above purposes.

42 Trail Immunity Govt. Code (a) applies only to unpaved roads 831.4(b) applies to both paved and unpaved trails/paths used for any the purposes of fishing, hunting, camping, hiking, riding, including animalandand all types of vehicular riding, water sports, recreational or scenic areas Paved and unpaved bicycle paths Gateways to the trails/paths are part of the trails/paths (e.g. gates, ramps, etc.) Immunity applies regardless of whether the injured person was using the property for recreation

43 Trail Immunity Govt. Code Hypo: pedestrian leaves a concrete sidewalk and crosses an asphalt bike path. Pedestrian falls while walking across a ramp used to enter and exit the bike path.

44 Trail Immunity Govt. Code Bike Path Bike Driveway Pedestrian Walkway

45 Raising Trail Immunity Demurrer If the purpose of the property appears in the Complaint, or can somehow be judicially noticed Summary Judgment May need to develop evidence to establish the May need to develop evidence to establish the purpose of the property

46 Failure to Provide Police Protection Govt. Code 845 Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient i police protection service. Immunity is meant to protect the budgetary and political i l decisions i which h are involved din hiring and deploying a police force.

47 Failure to Provide Police Protection Govt. Code 845 Hypo: student at a community college is attacked in a stairwell of a parking garage and alleges negligence in failing to protect student, dangerous condition of public property, and failure to provide adequate police protection.

48 Raising Immunity for Failure to Provide Police Protection Demurrer if stated as a separate cause of action Motion to Strike if allegations intertwined In Limine Motion

49 Field Trip/Excursion Immunity Ed. Code 35330(d) All persons s making gthe field edtrip por ecuso excursion shall be deemed to have waived all claims against the district, a charter school, or the State of California lf for injury, accident, illness, or death occurring during or by reason of the field trip or excursion. All adults taking out of state field trips or excursions and all parents or guardians of pupils p taking out of state field trips or excursions shall sign a statement waiving all claims. (See 5 CCR 55220(h) for Community College Districts)

50 Field Trip/Excursion Immunity Ed. Code 35330(d) Field trip is defined as a visit made by students and usually a teacher for purposes of firsthand observation (as to a factory, farm, clinic, museum). Excursion means a journey chiefly for recreation, a usual brief pleasure trip, departure from a direct or proper course, or deviation from a dfiit definite path. (1) off premises activity [meaning away from the home school campus]; (2) voluntary participation; and (3) activity that is not part of the school curriculum.

51 Field Trip/Excursion Immunity Ed. Code 35330(d) Hypo: a student is injured playing in a bounce house during an end of the school year fair, attendance at which is not required The fair is held on campus on the athletics field The fair is held off campus at a nearby park

52 Injuries to Students off School Property Ed. Code 44808/87706 Notwithstanding any other provision of this code, no school district, i t city or county board of education, county superintendent tof schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil p of the public schools at any time when such pupil p is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances. In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board.

53 Injuries to Students off School Property Ed. Code 44808/87706 Purpose uposes is to limit a school district s dst ctsliability for injuries to pupils either before or after school hours while children are either going to school or coming home after school Immunity is withdrawn only when the student is or should ldbe under the school s direct supervision. An offcampus school sponsored activity is where attendance is part of the school curriculum.

54 Injuries to Students off School Property Ed. Code 44808/87706 Hypo: after school was let out for the day, a student is hit by a car while crossing a street located directly in front of school. The street is not on school property, and is located a mere few feet outside of District property.

55 Mandated Reporter Immunity Pen. Code (a) No mandated reporter shall be civilly yor criminally liable for any report required or authorized by this article, and this immunity shall apply even if the mandated dreporter acquired the knowledge or reasonable suspicion of child abuse or neglect outside of his or her professional capacity or outside the scope of his or her employment. This immunity is absolute, even if the report is proven to be false.

56 Miscellaneous Immunities Paul D. Coverdell Teacher Protection Act 20 U.S.C Volunteer Protection Act 42 U.S.C Hazardous Recreational Activity Immunity Govt. Code Issuance or Revocation of License Immunity Govt. Code and Failure to Inspect Property Not Owned by Public Entity Govt. Code and Immunity for Injury Caused by Act or Omission of Another Person Govt. Code 820.8