CLAIM PROCEDURE AND IMMUNITIES: UPDATE Daniel Barer Pollak, Vida & Fisher

Recent Developments in Claims and Pleading Knapp v. Palisades Charter High School (2007) 146 Cal.App.4th 708: Where charter school is nonprofit public benefit corporation that is independent from the chartering authority, it is not a public entity or agency; and not subject to the claim requirement. Sofranek v. Merced County (2007)146 Cal.App.4th 1238: If respond to claim with GC 913 6-month notice, and plaintiff serves amended claim, need not respond with second 6-month notice; entity that did so estopped from asserting 6 month SOL ran from first notice. Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487: Although city’s claim adjuster incorrectly told claimant’s counsel that the city wasn’t liable for injury, that did not estop city from asserting SOL; estoppel only applies if (a) city misrepresented facts in bad faith; (b) city in fiduciary relationship with claimant; or (c) claimant unrepresented (but c.f., Sofranek).

Recent Developments in Claims and Pleading Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83: Incapacity and lack of conservator/GAL does not toll SOL to file suit; appeal from denial of late claim relief does toll SOL. Orr v. City of Stockton (2007) 150 Cal.App.4th 622: Petition to preserve evidence is not “suit” for purposes of meeting 6-month SOL; complaint against public entity requires specific pleading. Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487: Plaintiff’s failure to comply with claims requirements only bars causes of action that require claims.

Recent Developments in Claims and Pleading Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201: CCP 340.1’s revival of molestation actions against third parties barred by “statutes of limitation” does not revive actions barred by claim-presentation deadline; that deadline is not “statute of limitation.” City of Stockton v. Superior Court (Civic Partners Stockton, L.L.C. (2007) 42 Cal.4th 730 : Preferred name for act is “Government Claim Act,” not “Government Tort Claim Act”; Act applies to breach of contract claims; city can wait until claim-presentation period passes before asserting plaintiff’s failure to present claim. Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42: Appellate court affirms new trial order after jury trial; but can still review (and reverse) order granting late-claim petition.

New Developments in Immunities Jett v. Penner (9th Cir. 2006) 439 F.3d 1091: GC 845.6’s exception for failure to summon immediate medical care does not only apply to patient’s initial injury. Also applies to follow-up care. Bias v. Moynihan (9th Cir. 2007) 508 F.3d 1212: If information known to public employee who detains patient under 5150 creates probable cause of danger to patient or others, employee entitled to qualified immunity under 1983; W & I 5278 immunizes officer from state law liability; and entity employer and supervisors cannot be held liable. Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033: GC 821.6 immunizes public employees and entities from liability for statements to the press about investigations – even if the statements arise out of actionable conduct that is not immunized (false arrest).

New Developments in Immunities Richardson-Tunnell v. School Insurance Program for Employees (2007) 157 Cal.App.4th 1056: GC 821.6 applies to violation of constitutional provisions; and non-GC statutory liabilities, unless legislature intended otherwise. GC immunities are jurisdictional. Jacob B. v. County of Shasta (2007) 40 Cal.4th 948: CC 47 litigation privilege applies to constitutional violations. Immunizes public entity for erroneous release of private information for purpose of court proceedings. Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289: GC 855 exception to GC 854.8 applies only to violations of statutes or of State Department of Health Services, Social Services, Developmental Services, or Mental Health regulations that prescribe minimum standards for equipment, personnel or facilities. GC 855 does not apply to other bodies’ regulations; or regs setting only general standards (e.g., “sufficient staff.”) Disagrees with Baber v. Napa State Hospital (1989) 209 Cal.App.3d 213.

New Developments in Immunities Issue: Do GC immunities bar apportionment of fault (Prop. 51/contribution/indemnity/ comparative fault/ mitigation)? Test: Whether the immunity eliminates duty. Munoz v. City of Union City (2007) 148 Cal.App.4th 173: Because GC 815 cuts off public entities’ duties created by common law, cannot apportion fault under Prop 51 to public entity based on direct common law liability. Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42: GC 821.6 immunity doesn’t affect duty; does not cut off Prop 51 apportionment. People ex rel. Grijalva v. Superior Court (United Water Conservation District) (2008) __ Cal.App.4th__ [2008 WL 287815]: Fire-fighting immunities (GC 850, 850, 850.2, 850.4) eliminate public entity/employee duties to those injured by fires; bars comparative fault and mitigation defenses.

Prison Litigation Reform Act 42 U.S.C.A. § 1997e. Applies to suits under federal statutes (including 1983). Prisoner currently in correctional facility must exhaust that facility’s internal administrative remedies before suing about facility conditions. Includes suits concerning medical care (providing and failing to provide.) (Wright v. State (2004) 122 Cal.App.4th 659.) County jails have own internal remedy procedures (e.g., Moore v. Baca (C.D. Cal. 2002) 2002 WL 31870541). Exhaustion tolls SOL for both state and federal claims (Wright).

Prison Litigation Reform Act No substantial compliance. (Woodford v. Ngo (2006) 548 U.S. 81.) Failure to exhaust is affirmative defense; plaintiff need not plead exhaustion. (Jones v. Bock (2007) __ U.S. __ [127 S.Ct. 910, 921]; Wyatt v. Terhune (9th Cir. 2003) 315 F.3d 1108.) Defendant must plead and prove that plaintiff was prisoner at time action filed; and did not exhaust the requirements. (Moore v. Baca (C.D. Cal. 2002) 2002 WL 31870541.) Method for raising in federal court: Unenumerated 12(b) motion. (Wyatt v. Terhune.) In state court: Demurrer with judicial notice of nonexhaustion (Wright); or MSJ.

Prison Litigation Reform Act Fee award for seeking damages capped at 150% of damages. Up to 25% of damages go to satisfying fee award. Cap applies only to fees devoted solely to seeking damages. (Dominguez v. Valadez (9th Cir. 2003) 338 F.3d 1070.) If judgment for both damages and injunctive relief, and no showing fees were devoted solely to seeking damages, no 150% cap. (Dominguez.)

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New Address as of March 31, 2008 Daniel P. Barer Pollak, Vida & Fisher 11150 W. Olympic Blvd., Ste. 980 Los Angeles, CA 90064

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