2020 CAJPA Caselaw Update

2020 CAJPA ANNUAL MEETING

CASELAW UPDATE JPA ADMINISTRATION AND COVERAGE CASES.................. 2-3 WORKERS’ COMPENSATION CASES..................................... 4-6 CIVIL RIGHTS CASES.................................................................... 7-8 CLAIM PRESENTATION CASES................................................ 9-10 DANGEROUS CONDITION OF PUBLIC PROPERTY........... 11-12 COMMON CARRIER..................................................................... 13 IMMUNITIES.................................................................................... 14 DAMAGES....................................................................................... 15 EMPLOYMENT CASES............................................................. 16-19

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2020 CAJPA CASELAW UPDATE JPA ADMINISTRATION AND COVERAGE CASES Summaries provided by Doug Alliston of Murphy, Campbell, Alliston and Quinn California Ins. Guarantee Assn. v. San Diego County Schools Risk Management JPA (2019) 41 Cal. App. 5th 640

The AXIS policy applied when underlying policies were exhausted by “covered loss.” Essentially, AXIS argued that the insured bore the risk of its underlying insurers determining coverage and adjusting claims in a manner that would trigger the AXIS excess coverage, while Northrop argued that the excess insurer, not the insured, bore that risk.

The appellate court concluded the limited caselaw on point supported Northrop’s argument, noting the decision in Costco Wholesale Corp. v. Arrowood Indem. Co. (W.D. Wash. 2019) 387 F. Supp. 3d 1165, holding that an excess insurer cannot second-guess coverage determinations made by underlying insurers absent evidence of fraud, bad faith or showing a contractual right to interfere in their adjustment processes. This does not mean that the excess insurer cannot make its own coverage determinations, only that it cannot challenge payments made by underlying insurers based on their own coverage decisions.

Summary: The Superior court, not the WCAB, had jurisdiction over a dispute between a self-insured employer and CIGA (in place of the employer’s insolvent excess workers’ compensation insurer) to determine applicant’s date of injury for purposes of excess workers’ compensation insurance policy.

Discussion: A school bus driver made a workers’ compensation claim which was resolved by a stipulation that she suffered a specific injury on May 6, 2003. Her employer was a member of San Diego County Schools Risk Management JPA, which purchased excess (stop loss) policies on which the school district was an additional insured. Kemper Insurance Company had a policy in effect on the stipulated injury date and indemnified the JPA until Kemper became insolvent. The JPA then made a claim to CIGA, which is obligated to pay “covered claims” as defined in the Insurance Code. “Covered claim” does not include any claim which a solvent insurer is obligated to pay. CIGA took the position that the employee had really sustained a cumulative trauma (CT) injury that might also be covered by another solvent insurer of the JPA.

Cal. Capital Ins. Co. v. Maiden Reinsurance N. Am. (C.D.Cal. 2020) 2020 U.S.Dist.LEXIS 127526 Summary: “Bad faith” tort liability is not applicable to reinsurance because it is different from insurance issued to individuals and businesses.

CIGA filed a declaratory relief action seeking to establish that the claim was not a “covered claim” and the JPA counter-claimed to recover amounts paid out after Kemper became insolvent. The JPA and school district successfully moved for summary judgment, based in part on the argument that the WCAB had exclusive jurisdiction to decide the nature of the bus driver’s injury. CIGA appealed, arguing that the superior court had jurisdiction over the issue for purposes of determining obligations under the excess policy.

Discussion: Maiden Reinsurance North America (MRNA) reinsured four insurance companies (CIG) pursuant to a Multiple Line Excess of Loss Reinsurance Agreement signed in 2012. In 2018, MRNA was purchased by Enstar Insurance Company. CIG alleged that after the 2018 acquisition, MRNA fabricated coverage disputes to avoid paying claims, including claims it had previously agreed to pay, and demanded return of reinsurance payments it had previously made.

CIG sued MRNA for breach of contract and for breach of the implied covenant of good faith and fair dealing. After removing the action to federal court based on diversity jurisdiction, MRNA moved to dismiss or strike the cause of action for breach of the implied covenant of good faith and fair dealing on the basis that it sought tort damages not available outside the insurance context. Accordingly, if tort damages were unavailable, it was a mere repetition of the first cause of action for breach of contract.

The California Court of Appeal agreed with federal court decisions, holding that a determination by the WCAB of workers’ compensation benefits payable by a self-insured employer would not be affected by the superior court’s determination of a separate issue, which is whether the self-insured employer’s insurer is contractually obligated to indemnify the employer for its compensation obligation.

In so holding, the court explained that indemnity policies for self-insured employers are not workers’ compensation insurance, do not “secure” the payment of workers’ compensation benefits, and the issuers of such policies cannot be substituted for the employer in a workers’ compensation proceeding.

The federal court noted that the California Supreme Court had not addressed the issue of reinsurer “bad faith” liability and there was no controlling California Court of Appeal authority, so the federal court’s job was to predict and apply the rule it believed the California Supreme Court would apply. The federal court noted that the California Supreme Court had consistently limited tort remedies for breach of the implied covenant to insurance. As pointed out in one such case, contract law exists to enforce the intention of the parties while tort law (and tort damages) are intended to effectuate public policy. Tort liability for breach of insurance policies has been allowed only because they are “unique when compared to contracts for goods or services because they are quasi-public and characterized by elements of adhesion, public interest and fiduciary responsibility.” (Internal punctuation and citation omitted.)

AXIS Reinsurance Co. v. Northrop Grumman Corp. (9th Cir. 2020) 2020 U.S. App. LEXIS 29046 Summary: An excess carrier does not have the right to claim improper erosion or wrongful exhaustion of limits by an underlying insurer absent proof of fraud or bad faith, or a specific provision in its policy allowing it to make such a challenge.

Discussion: AXIS Reinsurance Company, a secondary excess insurer to Northrop Grumman Corporation, sued the insured for reimbursement of amounts AXIS paid toward a covered claim on the basis that Northrop’s underlying insurers had improperly paid a prior claim that AXIS believed was not covered, “improperly eroding” their policies’ liability limits and prematurely triggering the coverage provided by AXIS. The trial court granted summary judgment in favor of AXIS, and Northrop appealed to the Ninth Circuit Court of Appeals, which reversed.

CIG argued that reinsurance is a kind of insurance, but the court pointed to significant distinctions between reinsurance and typical insurance policies in that reinsurance is not purchased by individuals for security or to avoid calamity but by insurance companies to increase profits by allowing them to write more policies than reserve requirements 2

JPA ADMINISTRATION AND COVERAGE CASES - CONTINUED Summaries provided by Doug Alliston of Murphy, Campbell, Alliston and Quinn Visalia Unified School Dist. v. Superior Court (2019) 43 Cal. App. 5th 563

would otherwise allow. Also, while individuals typically are offered insurance on a take it or leave it basis, negotiations between insurers and reinsurers involve two sophisticated parties who may negotiate provisions including penalties for nonperformance and know how to use the legal process if necessary. While liability policies protect the public from tortfeasors who may cause more damage than they can afford to compensate, reinsurance has no public protection aspect. Finally, while individual insureds must rely on the insurance company to defend them and negotiate on their behalf, reinsurance does not involve the same dependent relationship. For all these reasons the court concluded that no tort remedies were available under the cause of action for breach of the implied covenant of good faith and fair dealing.

Summary: Public entities are immune from punitive damages despite a newer law that appeared to provide otherwise.

Discussion: Government Code § 818, enacted in 1963, states: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”

An employee of VUSD sued VUSD and two individual defendants for violation of Education Code § 44114, enacted in 2000 as part of the Reporting by School Employees of Improper Governmental Activities Act. She alleged she was non-reelected for the following school year in retaliation for refusing to backdate documents. She sought punitive damages from VUSD as well as the individual defendants, arguing that § 44114(c) impliedly repealed Government Code § 818 because its language stated that punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious and Section 44112(c) defines “person” in this context to include “any state or local government.” The trial court agreed with the plaintiff.

San Joaquin Valley Ins. Auth. v. Gallagher Ben. Servs.

(E.D.Cal. 2020) 437 F. Supp. 3d 761 Summary: Actuaries can be liable for calculations that result in underfunding a JPA even if underfunding can be made up by higher subsequent charges to JPA members.

Discussion: Plaintiff San Joaquin Valley Insurance Authority (SJVIA), a joint powers authority, sued Gallagher Benefits Services (GBS) for professional negligence, negligent misrepresentation, and breach of contract alleging GBS was grossly negligent, leaving SJVIA underfunded by more than $20 million. GBS sought to introduce evidence that any damages it caused had been recouped by SJVIA though raising premium contributions charged to its continuing participants, many of whom had gotten the benefit of lower contributions before, so that any recovery by the SJVIA would be a windfall double recovery. SJVIA argued California’s “collateral source rule” barred such evidence.

VUSD appealed. The Court of Appeal reversed, explaining that without an express declaration of legislative intent, an implied repeal will be found only when there is no rational way to harmonize the two potentially conflicting statutes because they are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.” The appellate court concluded that the prefatory phrase in Government Code § 818, “Notwithstanding any other provision of law,” allowed the two statutes to be harmonized.

The collateral source rule keeps defendants from introducing evidence that the plaintiff received insurance or benefits from an independent collateral source to compensate the plaintiff for injuries caused tortiously by the defendant, based on the rationale that the defendants should not escape liability (i.e., obtain a windfall) due to the prudence of their victims in protecting against loss and/or the receipt of payment by others not connected to the wrongdoer. Also, in many cases the plaintiff does not get a windfall due to subrogation rights of the initial payor.

The appellate court observed that actuaries could always argue that JPAs are not harmed by an erroneous analysis because the JPA can make up for insufficient past contributions by charging higher future contributions that would come from funds its members failed to pay before. Such reasoning would mean that an actuary, who is paid to “determine how much to contribute and when,” would have no responsibility for failing to fulfill his or her duties.

The appellate court concluded that as between the wrongdoer and the injured party, it is the injured party that should receive the windfall, if any, and that the wrongdoer is not injured by this because it is only paying once for the damage it caused. The court also concluded that higher subsequent contributions from the JPA’s members were a collateral source of recovery independent of the wrongdoer, and pointed out that the burden of paying the higher subsequent contributions was borne by individual members who may not have participated during the earlier time when insufficient contributions were charged. In fact, in this case some cities that had underpaid before had left the JPA and thus were not helping to make up for the earlier shortfall.

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2020 CAJPA CASELAW UPDATE WORKERS’ COMPENSATION CASES Summaries provided by Randal C. McClendon of Cuneo, Black, Ward & Missler Garcia v. Rivera, 2020 Cal. Wrk. Comp. P.D. LEXIS 35

Hom v. City and County of San Francisco, 2020 Cal. Wrk. Comp. P.D. LEXIS 124

Summary: Pursuant to Power, the board must weigh the medical evidence to determine which evidence has the more convincing force and greater probability of truth.

Summary: Overlap between injuries is not precluded merely because different AMA Guide methodologies were utilized in formulating WPI.

Discussion: On 8/22/10, applicant injured his right foot at work when he dropped a large rock on it. Soon after, one of the toes became infected. Due to the interaction of the industrial injury with his nonindustrial diabetes, his toes and part of his foot were amputated. After the injury, applicant never returned to work. In 2015, applicant stepped on a needle at home, and the resulting wound to his right foot became infected. Eventually that infection spread until he required a below the knee amputation of the remainder of his right leg.

Discussion: Applicant sustained an industrial injury to his lumbar spine on 07/29/12. The case was resolved by Stipulated Award for 20% PD. The settlement was based on the report of PTP Dr. William Campbell, who rated the injury using the DRE Method, finding a DRE Category III (10% WPI).

Applicant then sustained a second injury to the lumbar spine on 11/11/13. In this case, AME Dr. David Pang noted that applicant sustained a recurrent injury in the same spinal segment, and used the ROM method to rate the injury. Dr. Pang noted that recurrent injuries in the same spinal segment required the ROM method rather than the DRE method of rating. He ultimately provided 14% WPI, which adjusted to 30% PD. Dr. Pang went on to find apportionment per Labor Code §4664, and could identify no other apportionable factors.

For the 2010 industrial injury, the parties used AME Dr. Mandell, an orthopedic surgeon, to address impairment caused by the initial amputations. In Dr. Mandell’s 2013 report, he declared applicant P&S, and rated the impairment using the AMA Guides for ankle ankyloses and a mid-foot amputation. After the below the knee amputation, Dr. Mandell wrote two supplemental reports and was deposed.

The matter was set for Trial on the issue of whether Labor Code §4664 apportionment was appropriate in this case. The WCJ found that apportionment was not proper because defendant had not proven that the PD caused by the prior and subsequent injuries overlapped.

He declined to find overlap specifically because the impairments were measured utilizing different AMA Guides impairment methods (DRE vs.

ROM).

The parties jointly decided that they needed additional medical opinion from an internist to clarify causation issues given applicant’s diabetes and how that affected the medical situation. The parties used Dr. Noriega, a specialist in internal medicine. Dr. Noriega evaluated applicant on 6/22/18, and issued three supplemental reports.

Dr. Noriega concluded that the needle incident and the resulting amputation in 2015 was wholly non-industrial, and set out his reasons for his conclusion. Meanwhile, AME Dr. Mandell concluded that the causation of the below the right knee amputation was 100% due to the industrial injury of 8/22/10.

Defendant filed a Petition for Reconsideration. The WCAB affirmed the WCJ’s finding. Defendant then filed a Petition for Writ of Review. The WCAB, upon reviewing Defendant’s Petition granted Reconsideration on its own motion, and ultimately found that its previous decision was in error.

Pursuant to Power, the board must weigh the medical evidence to determine which evidence has the more convincing force and greater probability of truth. Here, the evidence showed that

The AMA Guides do not preclude a finding of overlap even though different ratings methodologies are used in formulating WPI. AME Dr. Pang correctly determined that a finding of overlap was especially merited where the Guides require a different rating method for the subsequent injury by virtue of it being a recurrent injury.

Dr. Mandell was uncertain that he could determine the industrial connection, if any at all, without the assistance of an internal specialist.

His subsequent reports failed to include citations to medical evidence to support his conclusion that there was poor circulation, or the extent of the circulation problem, or why whatever circulation issue there might have been would be enough to make him more vulnerable to infection.

In addition, Dr. Mandell never addressed the opinions of Dr. Noriega on causation, and thus remained silent on the reasons this internist differed with his conclusions on causation. Dr. Mandell’s opinions on causation of the 2015 injury are conclusory, unsupported by any reference to medical evidence, and outside his specialty.

City of Hope National Medical Center v. WCAB (2020) 85 Cal. Comp. Cases 655 (writ den).

Summary: The Special Mission exception of the going and coming rule applies if the activity that applicant was undertaking at time of injury was: (1) extraordinary in relation to the employee’s routine duties, (2) within the course of the employee’s employment, and (3) undertaken at the express or implied request of the employer and for the employer’s benefit. Whether the activity is “extraordinary” relies on three fundamental factors - the (1) location, (2) hour, and (3) nature of the work performed.

Conversely, Dr. Noriega’s final report stated his conclusions and discussed how he reached them. Dr. Noriega’s opinion is offered within his medical specialty, and is well reasoned and supported by logical medical analysis consistent with the medical and factual evidence, and offered after an evaluation of the applicant and a review of the relevant medical records.

Discussion: Applicant alleged an injury to multiple parts of his body on 09/10/16 (Saturday) when he was struck by a car in a hit-and-run accident while walking home from his job at City of Hope Hospital.

Defendant denied the claim based on the “going and coming” rule.

Applicant testified that he normally worked Monday - Friday, and did not work on Saturdays, unless asked to do so by his supervisor. On the day of his injury, his supervisor sent him an email asking him to prepare data for a presentation the following day. Applicant had not

Accordingly, Dr. Noriega’s opinions on causation had more convincing force, and the greater probability of truth, and were more persuasive than those of the AME on this particular issue.

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WORKERS’ COMPENSATION CASES - CONTINUED Summaries provided by Randal C. McClendon of Cuneo, Black, Ward & Missler planned to work that Saturday. After receiving the email, applicant walked from his house to the hospital to retrieve the necessary data.

Applicant retrieved a laptop and USB, and proceeded to walk home.

While walking home, applicant spoke on the phone with his supervisor about the work project. Applicant first testified that he ended the phone call approximately four minutes before he was hit by the car. At trial he testified that that he was unsure if he was still on the phone with his supervisor at the time of the accident.

light duty work for him. When he called defendant to ask about the termination letter, he was told that defendant’s insurance policy would no longer cover him. He provided defendant a doctor’s note every time that he missed work.

Defendant’s HR manager testified that when she received the 5/9/18 doctors note, she contacted applicant about coming back to work on modified duty and he said that he did not feel ready to return to work.

After receiving the 5/9/18 report, she gave applicant permission to remain off work until his next appointment. Applicant was not offered modified work after his termination.

The WCJ found that applicant sustained injury AOE/COE to multiple body parts, and that his claim was not barred by the “going and coming” rule. According to the WCJ, applicant’s claim fell within the “special mission” and “zone of danger” exceptions to the rule.

Generally, a defendant’s liability for temporary disability payments ceases when the employee returns to work, is deemed medically able to return to work, or becomes P&S. LC §4650-4657. The WCAB relied on Huston v. WCAB (1979) 95 Cal.App.3d 856 [44 Cal.Comp.Cases 798] for the proposition that an employer’s showing that modified work is available and offered affects an applicant’s entitlement to temporary disability.

Defendant filed a Petition for Reconsideration, asserting, amongst other things, that Applicant’s claim was barred by the “going and coming’ rule because applicant was engaged in his normal commute at the time of his accident, was no longer on the employer’s premises, had not been subjected to any special risk as a result of his employment, and was not on a “special mission” for Defendant.

The Appeals Board has previously found that an employer is not liable for temporary disability if the applicant could have performed modified duty but for the worker’s termination for cause. See Butterball Turkey Co. v. WCAB (Esquivel) (1999) 65 Cal.Comp.Cases 61 (writ den.).

Defendant holds the burden of proof to show by a preponderance of the evidence that the employee was terminated for cause and it had modified duty that the applicant could have performed.

The WCAB granted reconsideration, and after reviewing the issues, affirmed the WCJ’s decision. Defendant than filed a Petition for Writ of Review, specifically asserting that the “special mission” exception did not apply because the activity performed by applicant was not “extraordinary” in relation to his normal routine duties. The Court denied defendant’s Petition for Writ of Review, holding that the special mission exception to the going and coming rule applies.

In this case, the HR manager testified that after she received the 5/9/18 doctor’s note, she contacted applicant to discuss modified duty, and that during that conversation she permitted applicant to stay off work until his next medical appointment on 5/16/18. At his subsequent appointment, applicant was provided with work restrictions that remained in place and unchanged through his 8/7/18 appointment. The HR manager testified that after applicant was terminated, defendant did not contact applicant regarding modified work. Further, defendant did not provide any evidence that after 5/16/18, it could have provided applicant with modified work that complied with his medical restrictions or that it would have offered work to applicant but for his termination.

Here, applicant testified that he typically did not work Saturday, his supervisor authorized overtime, and requested he prepare for a presentation the next day, which necessarily required him to go to work on Saturday. The Court found that the special mission exception does not require the special mission to be undertaken as a condition of employment, but only that it incidentally or indirectly contributes to the service and benefit of the employer Rivera v. Pinnacle Application, 2019 Cal. Wrk. Comp. P.D. LEXIS 579 (Board Panel Decision) Summary: Applicant is entitled to temporary disability when defendant fails to meet its burden of proving that it had modified duty available that applicant could have performed but for his termination.

The Board held that applicant is entitled to temporary total disability for the period awarded by the WCJ because defendant failed to meet its burden of proving that it had modified duty that applicant could have performed but for his termination.

Discussion: Applicant sustained an injury to his right shoulder and neck and claimed injury to his head (headaches), back, and right arm while working for defendant as a driver on 3/29/18. The WCJ determined that applicant was entitled to TD indemnity from 5/8/18 through 10/1/18. On 5/9/18, Dr. Reddy issued a report stating that applicant could perform modified work and that applicant was precluded from commercial driving. On 5/16/18, Arleen Comiso, FNP-C, a certified family nurse practitioner issued a report stating that applicant could perform modified work with restrictions similar to those Dr. Reddy provided.

Miller v. Apple One Empl. Servs., 2020 Cal. Wrk. Comp. P.D. LEXIS 95 Summary: Defendant has a duty to investigate further when the body of the PTP report contains language indicating that applicant requires a van and home health care.

Discussion: On 2/10/10, applicant sustained industrial injury to her neck, right and left upper extremities, right and left lower extremities, psyche, spine, spinal cord and Brown-Seguard Syndrome. She subsequently settled her claim by Stipulated Award for 100% PD and future medical. On 11/27/18, a home health assessment found that applicant required kitchen and bathroom modifications, the installation of 2 ramps, and a hospital bed. The assessment noted that applicant was using an ill-fitting wheelchair without a cushion, which caused edema.

On 5/17/18, defendant sent applicant a letter stating that it received information from the DMV regarding a major citation that disqualified applicant from operating company vehicles and that it was terminating his employment because he was not able to perform the essential duties of his job. At trial, applicant testified that he tried to contact defendant regarding modified work and was told that they did not have any 5

2020 CAJPA CASELAW UPDATE WORKERS’ COMPENSATION CASES - CONTINUED Summaries provided by Randal C. McClendon of Cuneo, Black, Ward & Missler On 2/13/19, the PTP issued a report that contained, in bold, underlined print: “Due to the present condition, and her medical condition, this patient requires 24 hour attendant care by CAN/HHA to prevent injury and meet current patient needs”. However, the doctor only recommended HHC for 5 hours per day, 7days per week.

The parties eventually stipulated (based on the underlying medical evidence) that, from a medical standpoint, applicant suffered a CT injury from 4/8/97 through 12/10/12, but litigated the date of injury under Labor Code section 5412 and section 5500.5. Applicant testified that she knew she had an industrial injury at the time she filed the claim form on 6/3/11.

The PTP issued 2 RFAs on an expedited basis on 3/19/19. Per the panel, “the "first" RFA requested home health care services, including pericare for 60 days, five hours per day, seven days a week. The RFA also requested a hospital bed, a dolphin fluid immersion simulation system (Dolphin mattress), and a durability cushion for applicant's wheelchair. The "second" RFA requested a wheelchair accessible van with lift, and a one-month trial of a tens unit.”

Under Labor Code section 5500(a), the date of injury is controlled

by Labor Code section 5412 or the last date of injurious exposure, whichever comes first. Here, the claim administrator through 7/1/11 (Athens) argued that payment of Ed. Code section 44043 benefits does not meet the Rodarte requirement, as applicant would not have been entitled to TD due to the 3 day waiting period. The court noted this is wrong, as prior cases have held that section 44043 benefits are in part, TD. Athens also ignored the fact that applicant received over 14 days of TD, so the 3-day waiting period was inapplicable under Labor Code section 4652, and the TD days need not be consecutive.

The RFAs were served on defendant by way of fax. The PTP sent 25 pages, but defendant only received 22. The first 3 pages contained the 1st RFA and the 1st page of the 2/13/19 report. On 3/26/19, defendant issued a UR determination, authorizing the TENS unit and deferring the wheelchair accessible van. Defendant claimed it did not receive the 1st RFA until 4/8/19, then denied everything except the cushion on 4/11/18. IMR subsequently upheld the denials, but applicant filed a DOR. A WCJ found in favor of applicant and awarded all of the disputed treatment.

The court noted that the question of whether there is one or more injuries, whether specific or CT, is a question of fact for the WCJ/WCAB. Here, there was ample evidence to support the WCJ’s finding of a single CT from 4/8/97-12/10/12, with a date of injury of 6/13/11, based on the single date of benefits paid.

The panel boiled the issues down to a reconciliation of applicant’s duty to serve RFAs in the proper form with defendant’s duty to investigate.

Here, the PTP’s requests were listed on the first page that defendant received, but the evidence supported defendant’s contention that they never actually received the RFA form, nor any indication that the request was for expedited review (the panel did not endorse the WCJ’s finding otherwise). The panel found that even though applicant did not meet her burden by providing the required RFA forms, the body of the medical report, in conjunction with the prior home health assessment, put defendant on notice of a duty to conduct a reasonable and timely affirmative investigation, and defendant was not permitted to wait for further service from the PTP. The UR determinations were therefore untimely.

Brawley Union High School District v. WCAB (Sosa), (2020) 85 CCC 597 (writ denied) Summary: One day of compensable missed work is sufficient “disability,” combined with applicant’s knowledge, to find the end-date of the CT per Labor Code section 5412.

Discussion: Applicant filed a claim form on 6/3/11, alleging a specific injury to her left shoulder and neck in “April.” By the time she submitted the claim form, applicant was already receiving medical treatment, and her treating physician took her off work for 7/7/11 and 7/13/11 due to her shoulder complaints. This time off was paid as industrial medical leave per Education Code § 44043. Applicant continued industrial treatment and on 8/30/12 a physician found a repetitive use injury of 4/20/11, consistent with the claim form. He eventually found her permanent and stationary as of 5/16/13, and in the interim applicant filed an Application alleging CT-11/7/12.

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CIVIL RIGHTS CASES Summaries provided by Noah G. Blechman of McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP Park v. City and County of Honolulu (9th Cir. 2020) 952 F.3d 1136

Defendant was successful in having the Fourteenth Amendment claim reversed as the Court found there was insufficient evidence of a purpose to harm unrelated to legitimate law enforcement objectives.

Summary: A bartender was accidentally shot and seriously injured when the gun of an intoxicated off-duty police officer (Kimura) went off in a bar. The Court found that the officers who were with Kimura did not act under color of state law and Plaintiff did not provide sufficient evidence of any Monell violation against the Chief and the public entity.

Discussion: As a result of Sonny Lam being shot and killed inside his home by a police officer, Sonny's father filed suit under 42 U.S.C. 1983 and state law alleging that the officer used excessive deadly force. The jury specifically found that Sonny had stabbed the officer in the forearm with a pair of scissors prior to the first shot, that the officer had retreated after firing the first shot, and that Sonny did not approach the officer with scissors before the officer fired the fatal second shot. The Ninth Circuit affirmed in part and held that the district court properly denied the Federal Rule of Civil Procedure 50(b) motion for judgment as a matter of law on qualified immunity as to plaintiff's Fourth Amendment claim where the law was clearly established at the time of the shooting that an officer could not constitutionally kill a person who did not pose an immediate threat. The Court also found that the law was clearly established at the time of the incident that firing a second shot at a person who had previously been aggressive, but posed no threat to the officer at the time of the second shot, would violate the victim's rights.

Discussion: The Ninth Circuit affirmed the dismissal of a § 1983 substantive due process claim against police officers and the City and County of Honolulu. The Ninth Circuit held that Defendant Officers Naki and Omoso ,who were with Kimura when the gun went off, did not act or purport to act in the performance of their official duties.

Therefore, they were not acting under color of state law when the incident occurred. The Ninth Circuit also dismissed the Monell claim against the entity and the claim against the Chief finding the bartender did not plausibly allege that the County's inaction reflected deliberate indifference to her Fourteenth Amendment right to bodily integrity and the Chief was not aware of any prior similar incidents in which off-duty officers mishandled their firearms while drinking.

The panel reversed the district court's denial of the officer’s renewed motion for judgment as a matter of law on the Fourteenth Amendment claim finding there was insufficient evidence in the record to show that the officer acted with a purpose to harm unrelated to a legitimate law enforcement objective.

Monzon v. City of Murrieta (9th Cir. 2020) 966 F.3d 946 Summary: A fleeing felony suspect was lawfully shot and killed when he drove his van in a threatening manner towards and near officers and the post-shooting use of canine was appropriate as well.

Discussion: The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in an action alleging that police officers used unreasonable deadly force when they shot and killed Monzon following a high-speed chase. The Ninth Circuit held that the officers' use of deadly force was objectively reasonable in this dynamic and urgent situation where officers were faced with the immediate threat of significant physical harm by the way Monzon, wanted for serious crimes, was driving his van towards officers, leaving them with only seconds to consider less severe alternatives. A reasonable officer would have probable cause to believe Monzon was an immediate threat to the safety of the officers. Furthermore, even if the officers' use of deadly force was unreasonable, the officers did not violate a clearly established right. The Ninth Circuit also found the use of the canine after the shooting was appropriate and also rejected claims of failure to train and state law claims.

Orn v. City of Tacoma (9th Cir. 2020) 949 F.3d 1167 Summary: The Ninth Circuit affirmed the district court’s order denying qualified immunity to a police officer in a 42 U.S.C. 1983 action brought by plaintiff, alleging that the officer used excessive force when he shot and severely wounded plaintiff after a slow-speed car pursuit.

Discussion: In this case, taking the facts in the light most favorable to plaintiff, while giving due deference to the officer's assessment of the danger presented by the situation he confronted, the court found that the officer did not have an objectively reasonable basis for believing that plaintiff posed a threat of serious physical harm to any of the officers, per plaintiff’s version of events. The Ninth Circuit found that per plaintiff’s version, the shooting officer was on the side of the plaintiff’s car at the time of the initial shots and not in harm’s way. The panel also held that plaintiff’s right to be free from the use of excessive force was clearly established at the time of the shooting, denying qualified immunity.

This case provides strong language about judges (and lawyers) who are “tempted to dissect, evaluate, and second-guess the officers’ actions piecemeal” not being able to view this event from the “comfort of their armchairs” since it is not reflective of “how this event transpired in real life.” The Court also reiterated that they have never held that an officer must be in the direct path of a moving vehicle before his use of force is deemed reasonable.

Nicholson v. City of Los Angeles (9th Cir. 2019) 935 F.3d 685 Summary: The detention and handcuffing of four teenagers for five hours violated clearly established law that plaintiffs were entitled to be free from unlawful detention and excessive force.

Discussion: Plaintiffs filed suit against police officers, the LAPD, and the City, alleging violations of the Fourth and Fourteenth Amendments and various state laws. Plaintiffs were four teenagers who met in an alleyway near their school, before school, to listen to and sing rap music and role play. One of the teenagers was holding a plastic replica gun with an orange tip as a prop when Officer Gutierrez shot him because the officer mistook the replica gun as an actual gun, though it was never pointed at anyone.

Lam v. City of Los Banos, (9th Cir. 2020) 976 F.3d 986 Summary: The Ninth Circuit found that the district court properly denied a post-verdict motion for judgment as a matter of law on the issue of qualified immunity as to plaintiff’s Fourth Amendment claim after the jury found that the Decedent did not approach the officer between the first shot and the second fatal shot and therefore was not an immediate threat when he was shot and killed, even though still armed with scissors.

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2020 CAJPA CASELAW UPDATE CIVIL RIGHTS CASES - CONTINUED Summaries provided by Noah G. Blechman of McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP The Ninth Circuit affirmed the district court's ruling as to the Fourth Amendment claim and held that plaintiffs' detention for five hours— well after any probable cause would have dissipated—and the use of handcuffs throughout the duration of the detention violated their clearly established Fourth Amendment rights to be free from unlawful arrest and excessive force. Furthermore, a reasonable jury could find that Gutierrez was more than a mere bystander, but rather played an integral role in the unlawfully prolonged detention and sustained handcuffing of plaintiffs. The panel reversed the district court's denial of qualified immunity to Gutierrez as to the Fourteenth Amendment claim, holding that although Gutierrez's conduct violated plaintiff's substantive due process rights, per the deliberate indifference standard, the right was not clearly established at the time in this context. The Fourth Amendment claims against Gutierrez then remained for the jury.

Tuuamalemalo v. Greene (9th Cir. 2019) 946 F.3d 471 Summary: Use of carotid neck hold on a resistive arrestee who was being restrained by numerous other officers violated the Fourth Amendment and/or was a violation of clearly established law, denying qualified immunity to the officer.

Discussion: The Ninth Circuit affirmed the district court's denial of summary judgment based on qualified immunity to a police officer in an action brought by plaintiff, alleging 42 U.S.C. 1983 and state law claims that the officer used excessive force. The officer placed defendant in a chokehold during an encounter following a concert, and the carotid restraint hold (Court referred to as a chokehold) rendered plaintiff unconscious. The panel held that its decision in Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely addressed the constitutionality of the use of a chokehold on a non-resisting person. Barnard held that a reasonable person should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable.

In this case, plaintiff was not resisting arrest when the officer placed him in a chokehold, and there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground. Therefore, it was clearly established that the use of a chokehold on a non-resisting, restrained person violates the Fourth Amendment's prohibition on the use of excessive force. Also, the same version of the facts precluded summary judgment on the state law claims. Importantly, this case also provides a lot of information and guidance over the confusion of jurisdictional grounds for interlocutory appeals per Judge Fletcher’s detailed concurrence.

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CLAIM PRESENTATION CASES Summaries provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP Roger v. County of Riverside (2020) 44 Cal.App.5th 510

Coats v. New Haven Unified School District (2020) 46 Cal. App.5th 415

Summary: The County of Riverside waived its ability to assert a lateclaim defense in litigation because it failed to notify the claimant of this defect as required by the Government Claims Act.

Summary: Changes to the law relating to childhood sexual abuse while the appeal was pending revived minor plaintiff’s causes of action, which were originally barred for untimely claim presentation, and the statute reviving the minor plaintiff’s claim was constitutional.

Discussion: Plaintiff Douglas Roger (“Plaintiff”) was an orthopedic surgeon and a defendant in a civil action when he refused to produce business records despite a court order. Because of his failure to comply with this court order, Plaintiff was held in civil contempt and remanded to jail. On October 16, 2013, when Plaintiff was booked, the County of Riverside (“County”) entered his charge into its electronic booking database as a felony even though contempt of court is a civil violation.

This felony charge was reported to the United States Department of Justice.

Discussion: On June 20, 2016, E.D. along with her foster mother, Tinella Coats (“Coats”), filed a complaint against the New Haven Unified School District (“School District”) the school principal, the teacher, and others. E.D. alleged causes of action against the teacher for sexual abuse (first cause of action), against the other defendants for negligence and breach of statutory duties in failing to adequately supervise teachers and protect students (second and third causes of action), and against all the defendants for intentional and negligent infliction of emotional distress (fourth and fifth causes of action). Coats joined the causes of action for intentional and negligent infliction of emotional distress.

Plaintiff was released from jail on December 6, 2013, and then discovered a letter sent to him from the medical staff president at the hospital where he worked which stated that it had learned of his felony from the Riverside Superior Court and Riverside Jail websites and that he had failed to satisfy his obligation to notify them of any felony arrest or conviction. In May 2014, he was terminated from his contract with a group health care practice.

On September 10, 2014, Plaintiff presented a claim to the County arising out of the incorrect booking charge, claiming that the County’s posting on its public website that he had been incarcerated on felony criminal charges was a “false and defamatory statement” that had caused “significant damage to [his] professional reputation as a physician and orthopedic surgeon” and had “resulted in loss of professional services contracts, loss of patient referrals, and significant loss of income.” The County then sent a letter informing him that it had rejected his claim.

The Plaintiffs alleged that they were not required to present a claim to the School District under the Government Claims Act due to the exemption for claims of sexual abuse of a minor as stated in Government Code section 905(m). On a motion for judgment on the pleadings, the School District and the principal argued that the second through fifth causes of action were barred because E.D. was required to present a claim to the School District pursuant to a School District regulation adopted under the authority of Government Code section 935 and that Government Code section 905(m) did not apply to Coats because she was not an abused minor. The trial court agreed and dismissed the complaint with respect to all claims against the School District and the principal.

Plaintiffs appealed.

Plaintiff then filed a lawsuit alleging causes of action for defamation, defamation per se, writ of mandamus, declaratory relief, and violation of his civil rights under 42 U.S.C. § 1983. In relevant part, the County then moved for summary judgment as the causes of action for defamation, defamation per se, writ of mandate, and declaratory, arguing, among other things, that Plaintiff failed to file a timely claim for damages. The trial court granted the County’s motion with regard to the two defamation claims on the ground that Plaintiff’s tort claim was untimely. Plaintiff appealed.

While the appeal was pending, there were significant developments in the law with regard to child sexual abuse and claim presentation.

Plaintiffs argued, in a supplemental brief, that these changes in the law mooted the argument regarding timely claim presentation because Code of Civil Procedure section 340.1, subdivisions (q) and (r) revived the claim. The School District argued that Assembly Bill 218 raised serious constitutional issues including the prohibition against ex post facto laws and the due process clauses of the California and United States constitutions.

The Court of Appeal noted that the waiver provision of the Government Claims Act, Government Code § 911, states that “[a]ny defense as to the sufficiency of the claim based upon a defect or omission in the claim as presented is waived by failure to give notice of insufficiency.” It further noted that Section 911.3 contains another waiver provision, specific to timeliness, which provides that when a claim is untimely and there is no application for leave to present a late claim under section 911.4, the public entity must give notice of the defect, or waive it.

The Court of Appeal rejected the School District’s constitutional arguments, noting that numerous state and federal decisions have held that there is no constitutional impediment to legislation that revives a lapsed civil limitations period in order to restore common law remedies that existed at the time of the alleged misconduct. It also saw no reason why the Legislature could not revive claims that were barred by a claim presentation requirement.

In light of the express revival provisions in Code of Civil Procedure section 340.1, the Court of Appeal reversed the trial court’s judgment and remanded for further proceedings on E.D.’s complaint.

The Court of Appeal found that the County did not notify Plaintiff that his claim was late. Instead, it rejected his claim “on the merits.” Therefore, the County waived its ability to raise lateness as a defense in the lawsuit.

The Court of Appeal further advised that the notice and defense-waiver provisions “furnish strong incentive for a public entity to investigate a claim.” The Court of Appeal held that the trial court erred in dismissing Plaintiff’s defamation causes of action.

However, as to Coats’s claim, the Court of Appeal found that it “cannot conclude the Legislature intended to provide relatives the same rights as direct victims in the context of childhood sexual abuses cases under Code of Civil Procedure section 340.1.” As such, the Court of Appeal affirmed the trial court’s judgment that Coats’s causes of action were barred by her failure to present a timely claim with the School District.

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2020 CAJPA CASELAW UPDATE CLAIM PRESENTATION CASES - CONTINUED Summaries provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP Lincoln Unified School District v. Superior Court (2020) 445 Cal.App.5th 1079 Summary: The reason a petitioner submits to the court to justify relief from the claim presentation requirements must be the same as the reason advanced in the underlying late claim application to the public entity.

Discussion: On August 1, 2017, a minor collapsed during football try-outs at Lincoln High School in Stockton. His mother, Shynelle Jones (“Jones”) presented a timely claim on behalf of the minor to the Lincoln Unified School District (“School District”) under the Government Claims Act. Four months later, Jones submitted an application to the School District to present a late claim on her own behalf based on her allegedly newfound realization of the severity of her son’s injuries, their impact on her own life, and her right to file her own claim. In her application, she declared that she had been able to attend to her own interests. The application was denied, and Jones filed a petition for relief from the claim presentation requirements.

At the hearing on the petition, her counsel, presented a new explanation for her delay. After the hearing, he filed a declaration explaining that the day after she presented a claim on her son’s behalf, she retained counsel on her own behalf and there was an error in the handling of her counsel’s dictated memo which prevented the earlier preparation of Jones’s claim. The court granted Jones’s petition despite noting concerns regarding credibility because she had met her burden of proof to demonstrate excusable neglect. An appeal followed.

The Court of Appeal reviewed the applicable Government Code sections relating to late claim applications and petitions for relief from the claim presentation requirements. It determined that the “reason” for the delay in presenting a claim that must be stated in the late claim application and that must be shown in a petition for relief from the claim presentation requirement is the “factual basis that would justify the conclusion that the delay was based on mistake, inadvertence, surprise or excusable neglect.” It recognized that while Jones was allowed to produce additional evidence at the hearing on the petition, she did not produce additional evidence in support of the reason for her delay that was set forth in her late claim application and petition.

She, instead, offered additional evidence of a different reason that was not contained, and in fact, contradicted, her petition and late claim application. As such, the Court of Appeal held that Jones was not allowed to advance a factual theory of excusable neglect that was entirely different from the one she previously presented to the public entity. Moreover, she did not demonstrate the truth of her original theory by a preponderance of the evidence. Therefore, the Court of Appeal directed the trial court to vacate its order granting Jones relief from the claim presentation requirement and to enter a new order denying relief.

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DANGEROUS CONDITION OF PUBLIC PROPERTY Summaries provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP Hedayatzadeh v. City of Del Mar (2020) 44 Cal.App.5th 555

Thimon v. City of Newark (2020) 44 Cal.App.5th 745 Summary: The lack of similar accidents at an intersection supports a finding of no dangerous condition. Expert declarations opining that a condition is dangerous is not determinative and does not necessarily create a triable issue of fact.

Summary: Lack of a barrier to prevent pedestrians from going around a guardrail at the end of a city street towards railroad tracks not on city property did not constitute a dangerous condition of public property.

Discussion: On September 24, 2016, 19-year old Javed Hedayatzadeh (“Decedent”) drove to the City of Del Mar (“City”) with two friends and parked at the end of 13th Street, a City street that ends at an ocean bluff.

Discussion: Plaintiff Destiny Thimon (“Plaintiff”) then 14 years old was crossing Chery Street in Newark, California when she was hit by a car whose driver did not see her because the sun was in his eyes. She was seriously injured as a result.

A railroad right of way owned by North County Transit District (“NCTD”) runs along the top of the ocean bluff, perpendicular to the end of 13th Street. A guardrail on the City’s property prevents cars from continuing past the end of 13th Street to reach NCTD’s right of way, but pedestrians are able to walk around the guardrail to access NCTD’s right of way and train tracks. It was undisputed that it was common knowledge that members of the public frequently walk around the guardrail and access NCTD’s right of way to walk next to the train tracks on the ocean bluff. It was also undisputed that there had been multiple train-related injuries, fatalities, and near misses throughout the years on the tracks that run along the bluff through the City.

Plaintiff, through her guardian ad litem, sued the City of Newark (“City”) asserting that a variety of alleged defects in the intersection and its surroundings rendered it a dangerous condition that partially caused the accident. The City filed a motion for summary judgment, arguing, in relevant part that Plaintiff could not establish a defect in the property constituting a dangerous condition. The parties disputed the condition of the intersection based on declarations of their respective experts. The trial court ultimately granted summary judgment.

On appeal, the Court of Appeal noted that the City had established (1) no physical defects in the intersection that would have affected a driver’s view of pedestrians; (2) there was a marked crosswalk, (3) there were signs warning of pedestrians on the approach to the intersection; and (4) the absence of prior similar accidents. In particular, the Court of Appeal recognized that “the overwhelming weight of authority . . . strongly suggests that an intersection with a crosswalk but no signals, whether marked or unmarked, is not a dangerous condition within the meaning of the Government Claims Act even when it is located on a high-speed, high-traffic road, particularly in the absence of a history of other collisions.” Moreover, the Court of Appeal reiterated that the proffer of an expert declaration opining that a condition is dangerous does not preclude summary judgment. Expert opinions on whether a given condition constitutes a dangerous condition of public property are “not determinative” and do not necessarily raise a triable issue of fact. As such, the Court of Appeal held that the accident and the injury Plaintiff suffered was caused entirely by the negligence of the driver and not by any dangerous condition of public property.

On the night of the accident, the Decedent and his friends walked around the guardrail and crossed the train tracks. They walked along the tracks to a spot where they sat and smoked marijuana. They knew they were trespassing on NCTD property. At various points along the railroad right of way, NCTD had installed signs stating “No Trespassing”, “Danger” and “Railroad Property.”

The Decedent’s father, Farid Hedayatzadeh (“Hedayatzadeh”), filed a lawsuit against the City, NCTD and BNSF Railway Company, which allegedly operated the freight train. The complaint contained one cause of action for dangerous condition of public property against the City.

The City filed a motion for summary judgment on several grounds: (1) the City’s own property was not in a dangerous condition; (2) the alleged dangerous condition of the City’s property was not a proximate cause of Decedent’s death; (3) to the extent the cause of action was based on failure to warn, the City had no duty to warn of an obvious danger, and Government Code section 830.8 precludes liability for failure to provide a warning sign; and (4) recovery is barred by the doctrine of primary assumption of risk. The trial court granted summary judgment on the first ground. Hedayatzadeh appealed.

The Court of Appeal reviewed numerous cases relating to when a hazardous condition on adjacent property may give rise to liability for a dangerous condition of public property. The Court of Appeal concluded that the City was not liable for failing to erect a barrier to prevent the public from willfully accessing a hazard on adjacent property.

Specifically, the City was not liable as a matter of law for merely failing to erect a barrier at the side of the guardrail to prevent pedestrians from choosing to enter a hazardous area on NCTD’s adjacent right of way.

The appellate court noted that persons who travel to the end of 13th Street are not required to walk toward the train tracks and encounter any hazard of NTCD’s right of way. Instead, a person has to make a decision to walk around the guardrail and toward the train tracks before encountering any hazard. At bottom, the City’s property did not entice or encourage members of the public to put themselves in danger by entering a hazardous area on adjacent property. Judgment for the City was affirmed.

Fuller v. Department of Transportation (2019) 38 Cal. App.5th 1034 Summary: A special verdict finding that a dangerous condition existed but did not create a reasonably foreseeable risk is not fatally inconsistent.

Discussion: On October 10, 2011, Jeffrey LaChance (“LaChance”) was driving northbound on State Route 1, near Vista Point 1, when he attempted to pass a tour bus. Mr. Chance failed to pass the tour bus and struck Peter Fuller (“Plaintiff”) and his wife, who were travelling southbound. Plaintiff was severely injured and his wife was killed.

Plaintiff sued Caltrans alleging two dangerous conditions: (1) the road striping north of Pico Creek Bridge allowed passing despite an alleged dip or blind spot in the road that limited sight distance and obscured visibility and (2) passing should have been prohibited at the scenic turnout because it was like an intersection and created traffic conflicts when vehicles turned into the scenic turnout.

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2020 CAJPA CASELAW UPDATE DANGEROUS CONDITION OF PUBLIC PROPERTY - CONTINUED Summaries provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP The evidence showed that there were no dips in the road and the road striping conformed with federal and state highway standards requiring a 900 foot minimum sight distance for safe passing. Caltrans’ traffic safety expert opined that the sight distance where LaChance started to pass the bus was 1,500 feet. The jury found that the property was in a dangerous condition but that the dangerous condition did not create a reasonably foreseeable risk that this kind of incident would occur.

Plaintiff appealed, arguing, in part, that the jury’s verdict was fatally inconsistent. Specifically, Plaintiff argued that “the jury was repeatedly instructed that, in order to find that the property was in a dangerous condition, it must find inter alia that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.”

The Court of Appeal rejected this argument, noting that it assumed that Government Code section 835 foreseeability encompassed any kind of injury or incident once a dangerous highway condition was established, making foreseeability “boundless.” It noted that when Government Code section 835 was enacted the Legislature intended to require a showing that the precise manner in which the injury occurred was reasonably foreseeable. The Court of Appeal refused to accept Plaintiff’s theory that a public entity must be held at fault once a dangerous condition is found, stating “this would do violence to [Government Code] section 835.” Judgment in favor of Caltrans was affirmed.

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COMMON CARRIER Summary provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP* *Note: The author was defense counsel for Defendant San Francisco Bay Area Rapid Transit District in this case and her office handled all briefing in the trial and appellate court.

Churchman v. Bay Area Rapid Transit District (2019) 39 Cal. App.5th 246 Summary: The heightened duty of care under Civil Code section 2100 did not apply to minor, commonplace hazards in a train station.

Discussion: Plaintiff Alice Churchman (“Plaintiff’) attempted to board a train operated by the San Francisco Bay Area Rapid Transit District (“BART”) at the San Francisco International Airport Station. She bought a ticket, passed through the fare gates, and went to the platform to board a Pittsburg/Bay Point train. She claimed she attempted to follow directions and instructions given over a public announcement system but alleged they were partially inaudible and confusing. She further alleged that the conflicting instructions and opening and closing of doors on opposite side of the cars caused confusion, leading to abrupt turns and movement by passengers attempting to board the train. Due to this movement and the abrupt shutting of car doors, she lost her balance while maneuvering her suitcase, resulting in personal injuries.

Plaintiff filed suit against BART, alleging BART was responsible for her injuries because it violated its common carrier duty of care, pursuant to Civil Code sections 2100-2103, to furnish safe equipment, premises, and a safe place for boarding. BART demurred to Plaintiff’s complaint twice, arguing that common carrier liability did not apply because Plaintiff’s injury occurred on the station platform, before boarding the train. The trial court sustained both demurrers, finding that where the plaintiff is on the platform waiting to board the car, only an ordinary duty of care applied. On the last demurrer, the trial court sustained without leave to amend and dismissed Plaintiff’s lawsuit. Plaintiff appealed.

The Court of Appeal determined that the heightened duty of care under Civil Code section 2100 did not apply to “minor, commonplace hazards in a train station.” In particular, it affirmed that Civil Code section 2100 did not extend to injuries caused by “ordinary risks of a busy train platform” such as crowds of people moving in multiple directions, noise, partially inaudible announcements on the public address system, and train doors abruptly opening and closing as passengers board and disembark. As such, the trial court’s judgment was affirmed.

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2020 CAJPA CASELAW UPDATE IMMUNITIES Summaries provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP Dobbs v. City of Los Angeles (2019) 41 Cal.App.5th 159

fell backwards off his bicycle and suffered various injuries as a result of contact with the rope and his fall. He filed a complaint against the City alleging that individuals unrelated to the City erected the badminton net and that this was done frequently enough that the City either knew or should have known the net would be there at the time of Plaintiff’s accident. The complaint contained causes of action for dangerous condition of public property (Government Code § 835) and public employee negligence. The City filed a motion for summary judgment arguing it was immune from liability based on the trail immunity doctrine (Government Code § 831.4) and even if it was not immune, it had no notice of the dangerous condition and the negligence cause of action was an improper cause of action. The trial granted the motion for summary on all three grounds.

Summary: The City of Los Angeles successfully invoked design immunity with regard to a large, obvious bollard meant to protect the Los Angeles Convention Center from car bombs.

Discussion: On October 16, 2019, the California Court of Appeal, Second Appellate District affirmed that the City of Los Angeles (“City”) was not liable for injuries sustained when Plaintiff Cynthia Dobbs (“Plaintiff”) walked into a large bollard meant to protect the Los Angeles Convention Center from car bombs.

The Court of Appeal opened the decision with a brief, often thought, but seldom said out loud statement of law: “The rule deciding this case is look where you are going.” The incident arose out of Plaintiff’s encounter with a round concrete pillar that was 17.5 inches wide and 17.5 inches tall. There were more than 50 bollards in front of the south hall of the convention center. The evidence showed that about two million people visit the convention center yearly. In the nine years before Plaintiff’s accident, no one filed an injury claim.

The Court of Appeal held that trail immunity barred Plaintiff’s claim because though a badminton net is not inherently dangerous, it may become a dangerous condition when stretched across a trail. This is because it impedes the regular use of the trail. Because the danger is “inherently connected and exists only because of its connection with the trail,” trail immunity applies.

The City successfully invoked design immunity in its motion for summary judgment. The Court of Appeal affirmed that the City had established all three element of design immunity. The first element, a causal relationship between the plan and the incident, was stipulated at oral argument before the trial court. The Court of Appeal found the City had established the second element, discretionary approval of the design before construction, as the City Engineer had approved and stamped the plans with his office’s official stamp. It affirmed that evidence of approval need not be provided by the actual people who approved the project. Rather, a public entity may rely on testimony regarding the custom and practice of approval from another witness who was not involved in the approval process. Finally, the Court of Appeal affirmed that the City had produced sufficient evidence to establish the third element, reasonableness of the public entity’s approval. It noted that the bollard was big, designed to stop cars, and obvious to pedestrians who looked where they were going. The Court of Appeal concluded, “There is more proof of reasonableness, but we need not recite it because reasonable minds would agree this bollard in this location was conspicuous and not a danger to pedestrians.”

The Court of Appeal closed its opinion with another wise observation: “Tort law incorporates common sense. When one walks into a concrete pillar that is big and obvious, the fault is one’s own.” And with that, judgment was affirmed for the City of Los Angeles.

Reed v. City of Los Angeles (2020) 45 Cal.App.5th 979 Summary: The trail immunity doctrine applies when the danger condition is inherently connected and exists only because of its connection with the trail.

Discussion: On February 28, 2020, the California Court of Appeal, Second Appellate District, affirmed that the City of Los Angeles (“City”) was not liable to a bicyclist who rode his bicycle into a rope attached to a badminton net stretched across paved path in MacArthur Park based on the doctrine of trail immunity.

Plaintiff Sells Reed III (“Plaintiff”) was riding his bicycle on a paved path adjacent to a sports field in MacArthur Park when he rode into a rope attached to a badminton net and stretched across the path. He 14

DAMAGES Summary provided by Kimberly Y. Chin, Allen Glaessner Hazelwood & Werth, LLP B.B. v. County of Los Angeles (2020) 10 Cal.5th 1

Plaintiffs argued that the key phrase to determine the statute’s applicability to intentional tortfeasors was the phrase “based on principles of comparative fault.” They argued while negligence is based on this principle, intentional tort liability is not. Defendants argued that the key language is the phrase “the liability of each defendant” which by the plain and clear unambiguous meaning of this phrase guarantees apportionment to every defendant in a wrongful death case regardless of the nature of the defendant’s wrongdoing. Defendants asserted this language provides instruction on how the percentage of fault should be calculated, i.e., according to the proportion of fault determined by the fact-finder.

Summary: Intentional tortfeasors cannot reduce their share of noneconomic damages under Proposition 51.

Discussion: In B.B. v. County of Los Angeles, the California Supreme Court unanimously ruled that intentional tortfeasors cannot use Civil Code Section 1431.2 to reduce their share of noneconomic damages.

Civil Code Section 1431.2, commonly known as California’s Proposition 51, makes defendants jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault.

On the evening of August 3, 2012, the Los Angeles County Sheriff’s Department responded to a report of an ongoing assault in Compton, California. Upon arrival, officers observed Burley in a fight with another woman. While attempting to subdue Burley, Defendant David Aviles pressed one knee into the center of Burley’s back and another onto the back of his head until Burley was restrained. Other officers took over for Aviles, who continued to hold Burley. When paramedics arrived they found Burley restrained and face down on the pavement, with a deputy pressing a knee into the small of his back. He had no pulse. Burley was treated for his injuries. He died 10 days later.

The Supreme Court considered whether existing principles of comparative fault applied under the law to intentional tortfeasors. After reviewing numerous court decisions before Proposition 51’s adoption, the Court concluded that these decisions “uniformly held that reduced liability under principles of comparative fault [was] not available to defendants liable for intentional torts.” As such, by June 1986, when the electorate adopted Proposition 51, the well-established law was that intentional tortfeasors may not reduce their liability based on the negligent acts of others under principles of comparative fault. Moreover, after Proposition 51’s passage, published appellate decision similarly held that intentional tortfeasors may not obtain reduction of their liability under principles of comparative fault. The Supreme Court concluded, “[t]he preceding discussion demonstrates that California principles of comparative fault never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others.” Because Proposition 51 incorporates those “principles of comparative fault,” the Supreme Court held that Aviles was not entitled to reduce his liability based on the acts of Burley or the other defendants.

Burley’s heirs sued the County of Los Angeles and several deputies, including Deputy Aviles, for battery, negligence, and wrongful death.

A jury found that Aviles had committed battery by using unreasonable force. The jury allocated 20% of the responsibility for Burley’s death to Aviles, 40% to the remaining deputies, and 40% to Burley himself.

Despite this allocation, the trial court entered a judgment against Aviles for $8 million, the full amount of the noneconomic damages, on the grounds that his liability was based on the intentional tort of battery.

The Court of Appeal reversed the judgment, holding that Section 1431.2 limits the liability for noneconomic damage of all defendants, including intentional tortfeasors, to their proportionate share of fault. The appellate court expressly disagreed with Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, 1108, which held that “an intentional tortfeasor is [not] entitled to a reduction or apportionment of noneconomic damages under Proposition 51.” The Supreme Court granted review to address this split of authority and to consider Section 1431.2’s application to intentional tortfeasors.

Section 1431.2 became part of the Civil Code in June 1986, through the adoption of Proposition 51, an initiative measure entitled the Fair Responsibility Act of 1986. In pertinent part, Section 1431.2, subdivision (a), provides: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.”

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2020 CAJPA CASELAW UPDATE EMPLOYMENT CASES Summaries provided by Carl Fessenden and Derek Haynes, Porter Scott Bostock v. Clayton County, Georgia (2020) 140 S.Ct. 1731

That ruling could have significant impact on exposure in FEHA cases.

The hope, however, is that courts will limit the Caldera opinion to its unique facts. Plaintiff presented evidence suggesting he had to retain an out-of-area attorney because he was unable to find one from San Bernardino County who was willing to take his case.

Summary: Title VII’s protections against sex discrimination extend to protect individuals from discrimination based on sexual orientation and gender identity.

Discussion: Bostock is a United States Supreme Court case that resolved a split of authority regarding the scope of Title VII’s protections against sex discrimination. The case arose out of three Federal Circuit Court cases involving Plaintiffs who claimed they were terminated for disclosing that they are homosexual or transgender. The Plaintiffs alleged their terminations violated Title VII’s protections against sex discrimination. The Circuit Courts were split on whether the protections against “sex” discrimination extend to discrimination based on an individual’s sexual orientation or gender identity.

Anthony v. Trax International Corporation (2020) 955 F.3d 1123 Summary: Employers can defeat disability discrimination claims under the ADA based on after-acquired evidence that plaintiff was not qualified for the job.

Discussion: Plaintiff had a history of post-traumatic stress disorder, related anxiety and depression. She had to take a medical leave of absence in April 2012. In June 2012, Defendant advised Plaintiff that it would terminate her employment if she was not released to return to full-duty, with no restrictions, by July 2012. Plaintiff was not released to return to full-duty by that date. As a result, Defendant terminated her employment.

In a six to three opinion, the Supreme Court held that Title VII’s protections against “sex” discrimination do extend to discrimination based on sexual orientation and gender identity. The Court explained that when an employer fires a person for traits that the employer would not have questioned in members of a different sex, then sex necessarily plays a role in the decision, which is what Title VII forbids. The Court illustrated the point by citing a situation where an employer terminates a male employee for being attracted to another male. Doing so necessarily means the employer treated the male employee differently because of his sex, assuming the employer would not have also terminated a female employee for being attracted to a male.

Plaintiff subsequently filed suit under the Americans with Disabilities Act (ADA) claiming disability discrimination, failure to accommodate and failure to engage in the interactive process.

Defendant likely would have been liable on all three causes of action, at least based on the information it knew when it terminated Plaintiff’s employment. However, during the course of discovery, Defendant learned that Plaintiff was dishonest in her employment application.

In that application she indicated that she had the bachelor’s degree required for the position. That turned out to be false.

Therefore, Title VII’s protections against sex discrimination necessarily extend to protect individuals from discrimination based on sexual orientation and gender identity.

Defendant relied on that evidence to challenge Plaintiff’s claims on a Motion for Summary Judgment. The ADA protects “qualified individuals.” “Qualified individuals” are defined as “individuals who, with or without reasonable accommodation, can perform the essential functions of the employment position.” The United Stated Equal Employment Opposition Commission (EEOC) issued a regulation announcing a two-step inquiry for analyzing whether an employee is a “qualified individual.” First, the employee must “satisfy the requisite skill, experience, education and other job-related requirements.” Second, the employee must be able to physically perform the essential functions of the job with or without accommodation.

Caldera v. Department of Corrections and Rehabilitation (2020) 48 Cal.App.5th 601 Summary: When calculating attorney’s fees awards for prevailing plaintiffs, courts can do so based on the regular hourly rates awarded to attorneys in the jurisdiction where the plaintiff’s attorney normally practices, not the rates regularly awarded to attorneys where the case is venued.

Discussion: Plaintiff was a correctional officer who filed suit claiming harassment and discrimination under the Fair Employment and Housing Act (FEHA). He filed the action in San Bernardino County. The jury returned a verdict in Plaintiff’s favor. As a prevailing party in a FEHA case, Plaintiff was entitled to recover his attorney’s fees. To calculate that award, courts generally multiply the number of hours the attorney worked on the case by the applicable hourly rate of pay. Courts can also increase the award by applying a multiplier.

Relying on that authority, the District Court granted Defendant’s Motion for Summary Judgment. The Court found that Plaintiff was not a “qualified individual” protected under the ADA because she did not have the requisite education for the position. Plaintiff appealed to the Ninth Circuit.

Plaintiff’s counsel in Caldera sought $2,468,365 in fees. He calculated that figure by using an hourly rate of $750/hour, which was the rate regularly awarded to attorneys in the jurisdiction where Plaintiff’s counsel resided. The trial court rejected that figure, finding the fee should instead be calculated based on the average hourly rate awarded to attorneys in San Bernardino County, where the case was venued, which was closer to $450/hour to $550/hour.

There were two related arguments on appeal. First, the EEOC filed an amicus brief in support of the appeal, arguing that an employee’s lack of skill, experience or education is only relevant if that is what motivated the employer’s decision to terminate the employee. Employers should not be able to avoid liability for an unlawful termination simply because it turns out they were mistaken about the employee’s skill, experience or education.

The Court of Appeal overturned the trial court’s decision and held that the fees should be calculated based on the regular hourly rate paid to attorneys in the jurisdiction where Plaintiff’s counsel resides, not where the case is venued.

The Court rejected that argument. Even though the EEOC is the federal agency tasked with implementing the ADA, the Court is not bound by arguments in an amicus brief. Instead, the Court relied on the explicit 16

EMPLOYMENT CASES - CONTINUED Summaries provided by Carl Fessenden and Derek Haynes, Porter Scott language of the EEOC’s regulation and the Court’s own precedent cases, which clearly state that a “qualified individual” protected by the ADA is one who actually has the requisite skill, experience and education for the position.

In Glynn, there was direct evidence that Plaintiff was terminated because of his disability. Defendant’s temporary employee admitted as much. She was mistaken about the extent of that disability. That mistake, however, does not relieve Defendant of liability. It was undisputed that Plaintiff’s disability, albeit a mistake about the extent of that disability, motivated the termination decision. That is all that is required to recover on a disability discrimination cause of action.

Plaintiff raised a second, but related argument on appeal that defendants should not get the benefit of after-acquired evidence to defend against unlawful employment decisions. Plaintiff argued that when analyzing whether plaintiffs are “qualified individuals” under the ADA, courts should only look to the information known to the defendantemployers at the time the termination.

The Court explicitly held that plaintiffs do not need to prove that defendants had a discriminatory animus or intended to discriminate against them in order to recover. They simply need to prove that their disabilities motivated the adverse employment action.

The Court rejected that argument. “Qualified individuals” are those who actually have the requisite skill, experience and education. The purpose of that requirement is to ensure plaintiffs can perform the job.

An employer’s ignorance to a plaintiff’s deficient qualifications does not render the plaintiff capable of performing the job. If the inquiry was limited to whether the employer knew the employee was unqualified, that would only serve to protect “those who successfully deceive their employer as to the qualification.” “Such an outcome would be at odds with Congress’s express decision to limit the ADA’s protections to qualified individuals.”

St. Meyers v. Dignity Health (2019) 44 Cal.App.5th 301 Summary: Insisting that plaintiffs participate in employment investigations, does not give rise to a claim for constructive termination.

Discussion: Plaintiff was a nurse practitioner who worked at a rural clinic operated by Dignity Health. During her three years of employment, she filed more than 50 internal complaints about her working conditions. Plaintiff was also the subject of several anonymous complaints and investigations of those complaints. The investigations concluded that all of the complaints levied against Plaintiff were unsubstantiated.

Therefore, in sum, defendants can defeat disability discrimination claims under the ADA with after-acquired evidence that plaintiffs lacked the requisite skill, experience or education for the position even if that lack of skill, experience or education did not motivate the adverse action.

Plaintiff ultimately resigned from her employment. She then filed suit claiming whistleblower retaliation. To recover for retaliation, she must prove Defendant subjected her to an “adverse employment action” in retaliation for the complaints she made about her working conditions.

The adverse employment action Plaintiff claimed she suffered was constructive termination.

Glynn v. Superior Court (2019) 42 Cal.App.5th 47 Summary: Employers can be liable for disability discrimination even if the adverse employment action was not motivated by any animosity or ill-will towards the employee or the employee’s disability.

“Constructive termination” is a doctrine that, if applicable, treats an employee’s resignation as a termination under the law. To invoke the doctrine, plaintiff-employees must prove that the working conditions at the time of their resignation were so intolerable that a reasonable employee in their position would feel compelled to quit. The conditions must be “sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job and earn a livelihood.”

Discussion: Plaintiff worked for Defendant as a pharmaceutical sales representative. His primary duties consisted of driving to medical facilities to market Defendant’s products. Plaintiff eventually developed an eye condition that prevented him from operating a vehicle. His doctor placed him on a leave of absence. While he was on leave, one of Defendant’s temporary employees reviewed Plaintiff’s file and mistakenly concluded that Plaintiff qualified for long-term disability benefits, meaning his condition prohibited him from ever returning to work. Based on that mistaken belief, the temporary employee sent Plaintiff a termination letter, ending his employment.

Plaintiff’s constructive termination claim in St. Meyers was based primarily on the numerous unsubstantiated complaints and investigations she was subjected to during her employment. Plaintiff argued the complaints and investigations were harassing. She claimed Defendant should have investigated the complainants once it became clear that the complaints were baseless.

Plaintiff filed suit claiming disability discrimination under the FEHA. Defendant filed a Motion for Summary Adjudication arguing that it could not be liable for disability discrimination because it terminated Plaintiff based on a mistaken belief that he could not work, not due to any discriminatory animus. The trial court granted that Motion and Plaintiff appealed.

The trial court disagreed and granted Defendant’s Motion for Summary Judgment. Plaintiff appealed.

The Court of Appeal affirmed the trial court’s ruling. In doing so, the Court held that being the subject of complaints and investigations, even if unsubstantiated, does not make the working conditions so intolerable that a reasonable person would feel compelled to resign. Employees made those complaints. Defendant, as the employer, had an obligation to investigate those complaints. It could not, therefore, be liable for constructive termination simply because it satisfied its obligation to investigate.

The Court of Appeal began its analysis by discussing the applicable test when analyzing discrimination claims on summary judgment. California has adopted the well-known McDonnell Douglas burden-shifting test for analyzing those claims. That test, however, does not apply if plaintiffs have “direct evidence” of discrimination. If there is direct evidence of discrimination, plaintiffs must prove: (1) the employer knew plaintiff was disabled or perceived plaintiff as disabled, and (2) the plaintiff’s actual or perceived disability was a substantial motivating reason for the defendant’s adverse employment action.

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2020 CAJPA CASELAW UPDATE EMPLOYMENT CASES - CONTINUED Summaries provided by Carl Fessenden and Derek Haynes, Porter Scott The Court of Appeal also focused on the fact that Plaintiff was not disciplined, suspended or demoted. Defendant simply investigated complaints levied against her, which is what Defendant was required to do. That, therefore, cannot rise to the level of constructive termination.

The opinion in Doe conflicts with opinions from other courts. The Doe Court held that plaintiffs must provide specific information regarding the nature of their disabilities. Other courts, however, have held just the opposite, concluding that plaintiffs must disclose the nature of their limitations, but not the underlying disabilities.

Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721

If employers intend to rely on Doe, they should do so cautiously given there are conflicting opinions on the issue.

Summary: Plaintiff’s reasonable accommodation and interactive process claims failed because he did not “specifically” disclose the nature of his disability and resulting limitations.

Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104 Summary: Plaintiffs cannot invoke the doctrine of equitable tolling to extend the deadline to present a Government Claim under the Government Claims Act.

Discussion: Plaintiff worked for the California Department of Corrections and Rehabilitation (CDCR) as a psychologist.

During a three-year period, he submitted three notes requesting accommodations. The notes from his physician indicated that he had “a learning disability,” an unspecified “chronic work-related medical condition” and “a physical disability” that resulted in him feeling distracted. The notes stated Plaintiff’s symptoms were triggered by his “work environment.” Plaintiff’s doctor wrote that Plaintiff was “easily distracted and, under stress, can become disorganized.”

Discussion: Plaintiff was police officer. In 2013, he filed an administrative complaint with the California Labor Commissioner alleging he was transferred to a new unit in retaliation for reporting timecard fraud by another officer.

CDCR asked Plaintiff to sign a release, allowing CDCR to obtain information from Plaintiff’s doctor regarding the nature and extent of his limitations. Plaintiff refused to sign the release.

In December 2015, while the Labor Commissioner action was still pending, Plaintiff served the City with a Government Claim alleging retaliatory acts dating back to 2013. The Government Claim specifically referenced the same retaliatory acts detailed in Plaintiff’s Labor Commissioner complaint. The City rejected the Government Claim.

Plaintiff then filed suit.

He later filed suit claiming, amongst other things, that CDCR failed to accommodate his disabilities, which he identified as asthma and dyslexia, and failed to engage in the interactive process. CDCR filed a Motion for Summary Judgment arguing that Plaintiff failed to supply adequate information regarding his purported disabilities and was therefore responsible for the breakdown in the interactive process. The trial court agreed and granted CDCR’s Motion. Plaintiff appealed.

Shortly before trial, the City moved to preclude Plaintiff from pursuing claims for retaliatory acts that occurred more than 6 months before he filed his Government Claim. The City relied on Government Code § 911.2, which requires that plaintiffs present Government Claims within six months of the alleged unlawful conduct. Plaintiffs are generally precluded from pursuing any alleged unlawful conduct that occurred more than 6 months before the Government Claim was presented.

On appeal, the Court explained that employers must provide reasonable accommodations for known disabilities. “An employee cannot demand clairvoyance of his employer.” “Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer . . . the employee bears the burden to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” Employers do not have to rely on an employee’s representation about his or her condition or limitations. Employers can demand that information comes from a medical professional.

Plaintiff countered by invoking the equitable-tolling doctrine.

Specifically, he argued that the six-month deadline for presenting a Government Claim was tolled as long as his Labor Commissioner complaint alleging the same retaliatory acts was still pending. The trial court disagreed and granted the City's Motion. Plaintiff appealed.

The issue on appeal was whether the equitable-tolling doctrine can extend the six-month deadline for presenting Government Claims under Government Code § 911.2. In general, the doctrine applies to toll a statute of limitations when doing so is necessary to promote “fundamental fairness.” Plaintiffs must cite particular circumstances that justify application of the doctrine. The statute of limitations is then tolled until those circumstances resolve, if doing so would promote fundamental fairness.

The Court noted that Plaintiff did not advise CDCR that he had asthma or dyslexia. He simply offered notes indicating he had an unspecified “medical condition” and “physical disability.”

Plaintiff also failed to provide information regarding his limitations. The Court noted that the closest Plaintiff came was the note indicating he is “easily distracted and, under stress, can become disorganized.” The Court concluded that is true of many people, whether or not they have disabilities. “[Plaintiff] gave CDCR no evidence that this distraction or disorganization makes him more limited than an average baseline.”

In analyzing whether the equitable-tolling doctrine applies, courts must balance the interests served by tolling the statute of limitations against those served by holding plaintiffs to the original limitations period.

In balancing those interests, the Court in Willis held that plaintiffs cannot invoke the equitable-tolling doctrine to suspend the six-month deadline for presenting Government Claims under Government Code § 911.2.

The Court distinguished that limitations period from those that apply to claims against private individuals and entities.

In sum, the Court concluded that Plaintiff failed to put CDCR on notice of his disabilities because he did not provide specific information regarding the nature and extent of those claimed disabilities. Absent that notice, Plaintiff’s reasonable accommodation and interactive process claims failed.

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EMPLOYMENT CASES - CONTINUED Summaries provided by Carl Fessenden and Derek Haynes, Porter Scott Unlike the limitations periods for private claims, the six-month deadline provided under Government Code § 911.2 protects the community and taxpayers as a whole. The Court explained that the early notice requirement “is based on a recognition of the special status of public entities, according them greater protections than nonpublic entity defendants, because public entities will incur costs that must ultimately be borne by the taxpayers.” It “permits early assessment by the public entity, allows its governing board to settle meritorious disputes without incurring the added cost of litigation, and gives it time to engage in appropriate budgetary planning.” The Court in Willis concluded those interests far outweigh any interest served by applying the equitabletolling doctrine to extend the deadline under Government Code § 911.2.

The Court explained that plaintiffs can satisfy the first two elements in FEHA cases as long as they filed workers’ compensation complaints that included allegations that “overlap” with those offered in support of their FEHA claims. The allegations do not need to be identical. The facts underlying the claims just need to be “similar enough that an investigation of one claim will allow collection and preservation of evidence concerning the other.” Plaintiffs can satisfy the third element, requiring proof that they acted reasonably and in good faith, as long as they have a justifiable reason for the delay.

The Court in Brome concluded that Plaintiff satisfied all three elements.

His workers’ compensation claim included specific allegations that he was suffering from stress and anxiety caused by harassment and discrimination. Had the CHP investigated those allegations, it would have discovered the evidence underlying Plaintiff’s claims for harassment and discrimination under the FEHA. Therefore, the CHP had timely notice of Plaintiff’s allegations and the ability to avoid prejudice.

In sum, the Court held that “the doctrine of equitable tolling cannot be invoked to suspend section 911.2's six-month deadline for filing a prerequisite government claim.”

As to the third element, the Court pointed to evidence that Plaintiff was suffering emotionally from the harassment. The Court concluded that was sufficient to create a triable issue of fact regarding whether it was reasonable for someone in Plaintiff’s condition to delay filing with the DFEH until after the condition improved. Therefore, the CHP’s Motion should be denied.

Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786 Summary: The doctrine of equitable tolling does, however, suspend the statute of limitations for claims under the Fair Employment and Housing Act (FEHA).

Discussion: Plaintiff was a patrol officer with the California Highway Patrol (CHP). He claimed he suffered harassment and discrimination because of his sexual orientation. Amongst other things, he reported that officers used the terms “gay” and “fag” with a negative connotation and refused to provide him backup assistance when needed.

The takeaway from Brome is that the doctrine of equitable tolling can toll the statute of limitations on FEHA claims if the allegations supporting the FEHA claims overlap with those pled in support of a corresponding workers’ compensation claim.

In January 2015, Plaintiff took a medical leave of absence and filed a workers’ compensation claim alleging stress and anxiety resulting from the harassment and discrimination. Plaintiff’s workers’ compensation claim was resolved in Plaintiff’s favor in October 2015. He then retired from the CHP. Plaintiff later filed an administrative charge with the Department of Fair Employment and Housing in September 2016. Doing so is a mandatory prerequisite to filing suit under the FEHA. Compliance with the Government Claims Act is not required for FEHA claims.

Plaintiff then filed a civil action alleging harassment and discrimination under the FEHA. The CHP moved for summary judgment arguing that Plaintiff’s FEHA claims were barred because he failed to file his DFEH charge within the applicable statute of limitations. At the time, DFEH charges had to be filed within one year of the alleged unlawful activity.

The trial court granted the CHP’s Motion given Plaintiff last suffered a harassing or discriminatory act in January 2015, but did not file his DFEH charge until September 2016. Plaintiff appealed, arguing the equitable-tolling doctrine suspended the deadline for filing a DFEH charge as long as his workers’ compensation claim was still pending.

The Court of Appeal agreed and overturned the trial court’s ruling.

Again, the equitable-tolling doctrine applies to suspend a statute of limitations when doing so will promote fundamental fairness. The Court of Appeal in Brome held that plaintiffs must prove three things to make that showing: (1) defendant had timely notice of the allegations; (2) defendant was not prejudiced; and (3) plaintiff acted reasonably and in good faith.

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