A substantial evidence argument works on appeal

Substantial evidence challenges don’t succeed very often on appeal, so I sat up and took notice when I saw a successful challenge to the sufficiency of the evidence in today’s decision in Martinez v. County of Ventura, case no. B244776 (2d. Dist April 8. 2014). The Court of Appeal reverses a judgment for the public agency defendant that had successfully asserted a design immunity defense at trial to avoid liability for a defectively dangerous roadside condition that contributed to the plaintiff’s injuries. The burden of proof was on the county to establish that they had made a discretionary design decision in installing the type of roadside drain at issue. However, they were unable to produce any plans for the type of drain involved or any evidence that someone with discretionary authority had actually approved the design.

The substantial evidence standard my not require much evidence to affirm a judgment, but it requires enough that a rational factfinder could reasonably reach the conclusion supporting the judgment. Here, “[t]he evidence showed that the maintenance workers simply built and installed the drains in the field as they saw the need for them.”  A county official testified that he had approved the design, but that county did not have discretionary authority under the law, nor was there any evidence that the official that did have discretionary authority had delegated any authority to the testifying official.

Too many parties (and, unfortunately, even some lawyers) do not understand the substantial evidence standard of review. (That’s a subject for another post.) Some write it off from consideration because it is usually very difficult to win. But Martinez reminds us that the argument should not be overlooked just because it is usually difficult.

A Lesson in Collateral Order Doctrine Jurisdiction

Some lawyers not well-versed in appellate jurisdiction may find themselves fighting against one of two extremes when it comes to interlocutory decisions: the impulse to appeal everything (appealable or not), or failing to evaluate interlocutory orders for possible exceptions to the “final judgment rule,” figuring “why bother” until a final judgment is entered.  Then there are those in the middle who recognize opportunity in interlocutory orders, and seize it.

Such were the lawyers representing the appellants in Lazy Y Ranch Ltd. v. Behrens, case no. 07-35315 (9th Cir. Sept. 26, 2008).  Lazy Y sued, alleging a violation of equal protection, after its bids for grazing on state land were rejected in favor of other bidders.  The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that the complaint failed to allege a violation of equal protection and, alternatively, that the defendants had qualified immunity.  Their motion to dismiss relied on extrinsic documents.  Lazy Y moved successfully to strike many of those documents, and prevailed against the motion to dismiss.  Defendants appealed from both the order denying the motion to dismiss and the order striking certain exhibits.

Taking up the question of jurisdiction under the collateral order doctrine, the court reasons:

We begin by briefly addressing Lazy Y’s suggestion that we lack appellate jurisdiction over this interlocutory appeal.  Lazy Y argues that (1) Defendants’ attacks on the order denying the motion to dismiss exceed the scope of the “collateral order” doctrine upon which they allege jurisdiction, and (2) the order granting Lazy Y’s motion to strike documents is unappealable under any doctrine. We disagree.

In general, a party is entitled only to a single appeal, to be “deferred until final judgment has been entered.” [Citation.] However, under the collateral order doctrine, a litigant may appeal from a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated as final.” [Citation.] To be appealable under the collateral order doctrine, a district court decision must (1) be “conclusive,” (2) “resolve important questions completely separate from the merits,” and (3) “render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” [Citation.]

Because qualified immunity is immunity from suit itself and not merely a defense to liability, orders denying qualified immunity may be immediately appealable under the collateral order doctrine, including orders denying a motion to dismiss. [Citation.] Such an order is reviewable to the extent that it raises an issue of law. [Citations.]

Here, contrary to Lazy Y’s suggestion, we do not construe Defendants’ appeal to depend on “their version of the facts.” Rather, Defendants argue that Lazy Y’s allegations of pretext and animus are irrelevant under Equal Protection law, because they have articulated legitimate reasons for rejecting Lazy Y’s bids. In other words, Defendants argue that their articulated purposes end the inquiry and mean that Lazy Y’s claims of actual improper motives fail to establish an Equal Protection violation. They also argue that Lazy Y brings “class of one” claims that are either incognizable or not clearly established in the context of public contracting. These are contentions of law. [Citation.]

Moreover, whether Defendants’ exhibits should have been considered is essentially a legal question, and the order granting the motion to strike was simply part of the Rule 12(b)(6) analysis, as the district court resolved that motion solely to establish the record for the motion to dismiss. [Citation.]

So, appellants got their day in the court of appeals.  Turns out to be for naught, however, as the court affirms.  But at least they had their shot.

It’s Now Official: It’s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen

There was a lot of law blog coverage when a Ninth Circuit panel held that a strip search that required 13-year-old Savana Redding to expose her breasts and pubic region during a search for Ibuprofen did not violate her Fourth Amendment rights.  As I wrote in my post,  despite my gut- level reaction that the search was wrong, I found the majority opinion was well reasoned.  Still, the dissent won me over; it was even better reasoned and, while both opinions centered around New Jersey v. TLO (1985) 469 U.S. 325, the dissent was better supported by authority.  Along with my gut, that was enough, so I was among those happy to see en banc rehearing granted.

In today’s en banc opinion, Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008), the panel decision is reversed, but just barely.  The 6-judge majority opinion is notable for its graphic — and even poignant — description of the the search, which conveyed the degradation Savana must have felt.  The five dissenting judges split into two opinions.

I’m providing the entire introductory paragraph from the majority opinion because it so effectively tells you about the case and the holdings [citations omitted]:

On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen year-old honor student Savana Redding. We conclude that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither “justified at its inception,” nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, “reasonably related in scope to the circumstances” giving rise to its initiation.

Not surprisingly, the search arose out of yet another “zero-tolerance” policy.  This one disallowed even over-the-counter drugs at school without prior permission.  Zero tolerance often leads to zero sense, so the court’s invocation of common sense in its discussion of whether Savana’s rights were established in the law at the time of the search (a factor relevant to immunity) really jumped out at me [citations omitted]:

Common sense and reason supplement the federal reporters. The T.L.O. Court expected no less of those to whom we entrust our children, leaving teachers to “regulate their conduct according to the dictates of reason and common sense.”  Simply put: “It does not require a constitutional scholar to conclude that a nude search of a thirteenyear-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.”

It’s always a good thing when common sense and the Constitution converge.  It would have been really nice if this decision had come down last week, so Savana could have made it part of her Independence Day celebration.

I’ll update this post after I take a look at the dissents, which won’t be until later in the day.  I’m wondering if I’ll find both sides of the debate as rational as I did in the panel decision.

I’ll also update with additional links as I find other law bloggers writing about the case.

UPDATE (7/14/08):  Drug Law Blog calls the en banc decision “a little blow for sanity” and provides an excerpt regarding the supposed “prescription strength” nature of the Ibuprofen the search was for.   the   The School Law Blog provides links to coverage by the L.A. Times and ACLU. 

Firestarter Burned by Government Immunity

I’ve been stewing over this post for a couple of days.

Sovereign immunity always left a sour taste in my mouth. Yes, I understand all the justifications for it. But it still seems like a raw deal a lot of the time.

In California, government immunity (against state law claims) is the rule, and the liability of a public entity is limited to specific statutory exceptions. So . . . you can’t generally sue the government unless one of those exceptions applies (and even then, not until jumping through the necessary administrative hoops). I get that.

But what if the government sues you? Surely, those immunity statutes don’t prevent you from defending on the basis that the government’s conduct contributed to its own damages, either through contributory negligence or failure to mitigate damages, right?

Think again. That’s exactly what those statutes mean, at least the specific sections of the Government Claims Act at issue in People ex rel. Grijalva v. Superior Court (United Conservation Water Dist.), case no. B201881 (2d Dist. Feb. 4, 2008).

This decision doesn’t sit well with me at a gut level — and especially not in light of another recent decision discussed below.

The defendant in United Conservation admitted responsibility for accidentally causing a brush fire, and was sued by the state under Health & Safety Code section 13009, under which the government can recover the costs of fighting a fire from any person responsible for setting it. The defendant asserted affirmative defenses of comparative fault and failure to mitigate damages, contending that although the fire eventually burned 64,000 acres, the state had the fire contained at 1200 acres and could have readily extinguished it completely at that point had it not pulled its firefighters off the line prematurely. In other words, the defendant contended that the state was responsible for most of its firefighting costs because it unnecessarily let the fire get out of hand.

This seems like an eminently reasonable argument to me, but the court of appeal holds that statutory immunity shields the state even from affirmative defenses based on government conduct that would be immune to suit.

Here’s the court’s rundown of the immunity statutes that stand in the defendant’s way:

The immunities created in the Government Code shield public entities, such as petitioner, from liability based on the firefighting methods or tactics they employ. Thus, the Government Code immunizes public entities from liability for injuries caused by the failure “to provide fire protection service[,]” (Gov. Code, § 850), and the failure to “provide or maintain sufficient personnel, equipment or other fire protection facilities.” (Gov. Code, § 850.2.) The statutes preclude an action against a public entity for “failure to arrive at a fire in a timely manner[,]” even where that failure is caused by the firefighters’ negligence or willful misconduct. [Citation.]

So, how does the court get from immunity from liability to immunity from affirmative defenses that would decrease the liability of the defendant being sued by the government? The defendant contended that there is a big difference between suing the government and asserting a defense against it, but the court doesn’t agree:

The affirmative defenses of comparative fault and failure to mitigate damages seek to limit a defendant’s liability for compensatory damages based on the plaintiff’s own fault or inefficiency. Application of either defense here would reduce petitioner’s recovery based on a judge or jury’s finding that petitioner used unreasonable or inefficient methods to fight the fire. This is precisely the line of argument foreclosed by the Government Code. The immunity statutes protect fire fighters and fire fighting entities from incurring a financial penalty based on the “fire protection service[,]” personnel, equipment or other fire protection facilities[,]” they provide, or do not provide. (Gov. Code, §§ 850, 850.2, 850.4.) The statutes mandate that no percentage of fault or liability for fire–related damage may be ascribed to a public entity.

This struck me as just plain wrong. Liability to another party is one thing; responsibility for one’s own damages is another. That is the distinction between suing the government and asserting an affirmative defense against it. I thought the court inadequately explained why it rejected this distinction, and indeed, I didn’t think it should reject it.

The statutes say that the entity will not be “liable” for certain conduct, and to me, liability connotes an obligation to someone else. So I looked to see if “liable” is among the defined terms in the Government Claims Act. It’s not, so, like a famous jurist, I turned to the dictionary to see how this word might be interpreted in the statute. What I found is that some dictionaries define “liable” in terms of obligation or amenity to suit, but others only define it in terms of culpability, regardless of the existence of any legal obligation arising from that culpability.

But the court’s ultimate justification, though it did not play it up as such, is this line it quotes from Munoz v. City of Union City (2007) 148 Cal.App.4th. 173: “In the absence of duty, there can be no tort liability, and no fault can be allocated to a party that is not a tortfeasor.” The court determines that the statutes not only protect public entities from liability for firefighting (or lack thereof), they actually preclude the rise of any duty. Without duty, there can be no tort, and no tortfeasor. And if you’re not a tortfeasor, then according to the court’s reading of Munoz, no fault can be allocated to you.

I have a problem with this reliance on Munoz. Munoz was decided in the context of liability to a plaintiff, not in the assertion of an affirmative defense based on the public entity’s negligence or failure to act.

Moreover, what to make of Ovando v. County of Los Angeles, case no. B186504 (Jan. 18, 2008), decided less than three weeks ago (and after oral argument in United Conservation), in which a different division of the Second District Court of Appeal held that comparative fault had to be apportioned among all tortfeasors, including two police officers that were immune from liability under Government Code section 821.6, in order to fix that portion of plaintiff’s damages that each remaining tortfeasor was responsible for?

In Ovando, plaintiff contended that the comparative fault of the immune officers (who were not parties) need not be calculated and that 100% of the fault should be apportioned only among the non-immune parties (who also happened to be public entities). The Ovando court notes a difference, supported by prior cases, between tortfeasors that are immune from paying for their tortious acts, and those that are not tortfeasors to begin with because the law declares their actions not to be tortious. Comparative fault must be apportioned to the former, but not to the latter. Since Government Code section 821.6 merely provides immunity from payment rather than declare that no duty exists, fault had to be apportioned to the officers.

So at that level, Ovando and United Conservation are consistent. The former allocates fault to police officers who breached a duty but are immune from paying for injuries due to that breach. The latter refuses to allocated fault because the firefighting entity had no duty at all as a result of the immunity statute.

But what makes section 821.6 an immunity from payment for breach of a duty, while sections 850, 850.2 and 850.4 declare that the public entity has no duty that can be breached? The United Conservation court doesn’t explain that, except to say that the “broad grant” of immunity in the statutes “means that public entities owe no duty to persons or property damaged by fire.” But I think you can make a case that section 821.6 grants immunity for something done, while sections 850, 850.2 and 850.4. provide liability for what the public entity fails to do. Hence, no duty.

What is a citizen to conclude from these decisions? In Ovando, the court required allocation of fault to immune tortfeasors, which had the net effect of reducing the liability of the non-immune public entity defendants. In United Conservation, the court refuses to allocate fault to the immune public entity, thus increasing the damages the government can collect. To your average guy on the street, that’s going to look like a rigged game, with the courts deciding whichever way comes out best for the public entity.

Though the legal reasoning may be adequate on its surface, as a matter of public policy, this holding seems crazy — it says that so as long as the government’s damage is initiated by a private party the government can sue, the government can exacerbate its own damages (provided the applicable immunity statutes strip it of any duty to act otherwise) and then collect all of its damages — even those that the public entity is itself responsible for causing — from the private party.

Not all immunity statutes will be read to eliminate a duty, so United Conservation won’t necessarily apply to every case in which a defendant asserts an affirmative defense that implicates the public entity’s actions that are immune from liability. But in this case, the immunity statutes not only protect the government from others, they protect the government from itself!

I’m not alone in not liking the outcome of this case. Professor Martin agrees.

Should the Government be Liable for Criminal Acts of its Employees?

The Government Liability Update blog has a good post on DeVillers v. County of San Diego, case no. D048974 (4th Dist. Oct. 19, 2007), which it describes as “deal[ing] with a real-life crime that would make a decent plot for a ‘CSI’ episode.” A county medical examiner and former meth addict having an affair with a co-worker steals drugs from work at the County Medical Examiner’s office and poisons her husband with them. Is the County liable for the husband’s death? The jury said yes. The Court of Appeal reverses.