Police Department Denied Pursuit Policy Immunity

The Fourth District has held that a police department’s inability to show that its officers had received, read, and understood the department’s vehicular pursuit policy precluded a finding that the department was immune from liability for a bystander’s injuries sustained as the result of a high speed police chase.

During a high speed police chase, bystander Mike Morgan was struck and killed by the suspect’s vehicle. His wife and daughter, Rosemary Morgan and Michelle Luna, filed a wrongful death action against the Beaumont Police Department and the City of Beaumont.

The trial court granted the city’s motion for summary judgment, concluding it was immune from liability under Veh. Code §17004.7, which immunizes public entities from liability for injuries resulting from police pursuits of suspected criminals. In granting the motion, the court found the department had a "policy and procedure in place" for purposes of §17004.7.

The court of appeal reversed, holding that the city failed to show compliance with §17004.7.

Section 17004.7(b)(1) provides that a public entity is immune from liability for injuries resulting from a high speed chase where the public entity “adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits..." It was undisputed here that the department had a vehicular pursuit policy that complied with the minimum standards set forth in §17004.7(c). At issue, the court found, was whether the department had both "adopted and promulgated" such a policy and "provided regular and periodic training on an annual basis" on its policy, as required in subdivisions (b)(1), (2) and (d). The court found the city failed to show such compliance.

Section 17004.7(b)(2) unambiguously requires that "all peace officers of the public agency certify in writing that they have received, read, and understand" the agency's vehicle pursuit policy. Here, however, according to the city’s own witnesses, the department’s officers had been notified of the policy and a “vast majority” of them had confirmed by email their “receipt” of the policy. Even if all the officers had so certified, the court found, mere receipt was insufficient to comply with §17004.7(b)(2). The officers also had to confirm having both read and understood the policy. In the absence of any evidence from the department that its officers had received, read, and understood the department’s vehicular pursuit policy, the trial court’s grant of summary judgment in favor of the department was error.

Morgan v. Beaumont Police Department


California Implements New Anti-Harassment, Anti-Discrimination Policy Regulations Effective April 1

Effective April 1, 2016, new regulations under the Fair Employment and Housing Act (“FEHA”) will require employers to develop or modify written antiharassment and discrimination policies.

The new regulations require employers to develop and distribute a written harassment, discrimination and retaliation prevention policy. (2 Cal. Code Regs. §11023.) Employers are already required to distribute either the DFEH-185 Brochure or a policy in compliance with Government Code section 12950.

The purpose of adding these new requirements is to elaborate on an employer’s obligation under Government Code section 12940(k) to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. The California Fair Employment and Housing Council (“FEHC”) claims the new regulation combines case law and “best practices” to create “a concise, user-friendly regulation that would eliminate ambiguity and the need to research a vast amount of fragmented information on one’s own.” (FEHC Proposed Amendments to the Fair Employment and Housing Act Regulations, Initial Statement of Reasons (2014), p. 3.)


Despite Receiving Nominal Damages, Civil Rights Plaintiff Entitled Attorneys Fees

The court of appeals affirmed in part and vacated in part an order of the district court and remanded. The court held that a plaintiff was entitled to attorney fees in his civil-rights action to invalidate a city's ordinances that banned amplified speech on public sidewalks.

Steve Klein filed a complaint against the City of Laguna Beach under 42 U.S.C. §1983 to invalidate aspects of city ordinances that prohibited the use of sound-amplification devices on public sidewalks. Klein won two appeals in the litigation. The district court awarded Klein nominal damages on three of his four as-applied claims. Klein then moved for attorney fees under both state and federal law. The court found that Klein was a prevailing party under §1988, but denied attorney fees under (I)Farrar v. Hobby(I), 506 U.S. 103 (1992), which held that a prevailing party who seeks a large compensatory award but receives only nominal damages may not be entitled to fees. The court also found that Klein was not entitled to fees under California law because it had entered judgment for the city on Klein’s state claims.

The court of appeals affirmed in part, vacated in part, and remanded, holding that Klein was entitled to attorney fees under federal law.

(I)Farrar(I) created a narrow exception to the standard 12-factor procedure in (I)Hensley v. Eckerhart(I), 461 U.S. 424 (1983), namely, when a plaintiff seeks compensatory damages but receives no more than nominal damages, the court may lawfully award low fees or no fees without either reciting the (I)Hensley(I) factors on reasonableness or calculating the lodestar. Here, the district court found that the (I)Farrar(I) applied to Klein because he received only nominal damages.

However, the court pointed out that Klein's primary goal was to legalize amplified speech in the city, not to recover private compensatory damages. Thus, under Ninth Circuit precedent, without a request for compensatory damages, Klein had no chance of receiving a significant monetary payout. Klein's complaint alleged that both facially and as applied, the ordinances violated the free-speech provisions of the federal and state constitutions.

Further, under Cal. Civ. Code §52, Klein sought only $4,000 as nominal, not compensatory, damages because the statute guaranteed that specified minimum regardless of actual damages. Thus, Klein's attempt to recover those statutory damages did not make him a plaintiff to whom (I)Farrar(I) applied. In any event, Klein’s request for relief under state law had no bearing on the legal framework that applied to §1988 motions because that provision rewards plaintiffs who prevail on federal claims.

In addition, (I)Hensley(I) asserted that “the most critical factor in determining the reasonableness of a fee award is the degree of success obtained.” That was the basis of the (I)Farrar(I) exception. In this case, however, when the relief Klein sought was compared with the results he achieved, it was clear that he succeeded. As the court pointed out in one of Klein's earlier appeals, the city voluntarily repealed all challenged portions of the sound ordinance as a result of Klein's lawsuit.

However, the court rejected Klein's argument that he was entitled to attorney fees under Cal. Code Civ. Proc. §1021.5. The court acknowledged that when California plaintiffs prevail in federal court on California claims, they may obtain attorney fees under §1021.5. Nonetheless, Klein was only a prevailing party on his federal claims. Thus, the federal common law of attorney fees applied.

Klein v. City of Laguna Beach


Assumption of Risk Bars Injury Claim Based On Misrepresenting Package Weight

The Third Appellate District affirmed a judgment. The court held that a delivery person who injured himself lifting a heavy box could not maintain a personal injury suit against the shipper for understating the weight on the shipping label.

Stephen Moore was a UPS delivery driver. Moore made a delivery to William Jessup University. Moore then noticed some boxes in the UPS-pickup area of the university's mailroom. The boxes were all about the same size and shape and their shipping labels all stated that each weighed 48 pounds. However, when Moore lifted one of the boxes, he felt pain in his wrist, shoulder, and neck. Based on his 20 years of experience, Moore estimated that box weighed 70 to 80 pounds.

Moore sued the university, alleging negligence. The university moved for summary judgment, contending that it had no duty to protect Moore from injuries from lifting heavy boxes because it was an inherent risk of Moore's employment and the university did not increase that risk. The trial court granted the motion, finding that the university owed Moore no duty of care and that the doctrine of primary assumption of risk barred his action.

The court of appeal affirmed, holding that the university was not liable for Moore's injury.

The university did not increase the risk of injury to Moore by understating the weight of the box and failing to use highlighted tape to mark the box. Rather, Moore was harmed by the risks inherent in the activity of being a delivery-person. Accordingly, under the primary assumption of risk doctrine as articulated by the California Supreme Court, the university correctly argued that it had no duty to protect Moore from those inherent risks.

The court pointed out that the Supreme Court applied the so-called firefighter's rule, on which the university relied, to bar an action by a professional in-home caregiver injured by an Alzheimer’s patient because the caregiver was injured as a result of the very risk that she was hired to encounter. Here, the court concluded that the risk of injury from lifting heavy boxes that might be labeled with inaccurate weight information was inherent in Moore’s job.

Moore was trained by UPS on proper lifting techniques. There also was no evidence that UPS customers contractually or customarily provided weight information on their shipping labels so that UPS delivery drivers could ascertain how to safely handle a package. Instead, there was evidence that UPS customers mislabeled packages and that at least weekly, Moore encountered shipping labels with inaccurate weights.

Nor did Moore dispute that UPS did not require its customers to weigh their packages on a scale. Moore had 20 years of experience lifting and handling packages for UPS. How he would move the boxes he encountered at the university was in Moore's control, given that Moore had the option of calling for assistance from another UPS employee. Thus, Moore was in the best position to guard against lifting injuries.

Under the particular circumstances of this case, policy considerations based on the nature of Moore’s job duties and the relationship between the parties did not support a conclusion that the university had a duty to protect Moore against his injuries or that the university increased the risk of harm to Moore.

Moore v. William Jessup University


"Incident" means "Incident" in Form PI Interrogatories

The Second Appellate District granted a petition for writ of mandate. The court held that it was error to impose an evidence sanction based on a personal injury plaintiff’s failure to identify witnesses to her injuries, who did not witness her accident, in response to a form interrogatory seeking the names of witnesses to an "incident."

Karla Mitchell was injured in a car accident. She sued Ernestine Johnson for her injuries.

Johnson propounded Judicial Council form interrogatories. Interrogatory 12.1 asked Mitchell to identify each individual who witnessed the "incident," made any statement at the scene of the incident, heard any statement by any other individual about the incident that was made at the scene, or who claimed to have knowledge of the incident.

In response, Mitchell identified only one witness, one of her children who was a passenger in her auto at the time of the collision. Mitchell later identified several witnesses whom she intended to call at trial to testify to her physical limitations resulting from the collision. None of those witnesses had witnessed the collision.

Johnson moved in limine to exclude the testimony of any witnesses not previously disclosed in discovery as a sanction for Mitchell's failure to identify the non-percipient witnesses in response to interrogatory 12.1. The trial court granted the motion and the requested relief. Mitchell petitioned for writ of mandate.

The court of appeal granted the petition, holding that the trial court abused its discretion.

The court read interrogatory 12.1 as seeking the identities of percipient witnesses, witnesses who were at the scene immediately before or after the collision, those who were privy to statements by percipient witnesses, and those who might have personal knowledge of the collision.

Moreover, as provided in, among other authorities, Code Civ. Proc. §§2023.030, 2030.290(c), and 2030.300(e), exclusion of a party’s witness for that party’s failure to identify the witness in discovery is appropriate only if the omission was willful or a violation of a court order to compel a response.

Here, even if the interrogatory could be construed as a request for the identity of witnesses who would testify to Mitchell's post-collision limitations, there was no evidence that her failure to identify them was willful or in violation of an order to provide discovery.

Mitchell v. Superior Court