Government Code Section 1090 prohibits public officials from having a financial interest in any contract made in their official capacity. The statute reads:
“Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or venders at any purchase made by them in their official capacity.”
The prohibitions of Government Code Section 1090 are strictly enforced. Thus, a public official may be liable for violation of the statute “no matter whether he actually participated personally in the execution of the questioned contract, if it is established that he had the opportunity to and did influence execution directly or indirectly to promote his personal interest.” (People v. Sobel (1974) 40 Cal.App.3d 1046, 1052; see also, Millbrae Association for Residential Survival v. City of Millbrae (1968) 262 Cal.App.2d 222, 237 [a contract is “made” in an official capacity where the public official engages in ‘preliminary discussions, negotiations, compromises, reasoning, [or] planning . . . .’”]) A public official who violates Section 1090, regardless of whether the violation was intentional, forfeits any rights or interest flowing from the illegal contract. (Thomson v. Call (1985) 38 Cal.3d 633, 646-652.)
Government Code Section 87100 likewise prohibits public officials from participating in or using their position to influence a governmental decision in which they have a financial interest. The statute provides:
“No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.”
Government Code section 1091.5(a)(3) provides: “An officer or employee shall not be deemed to be interested in a contract if his or her interest is any of the following:…(3) That of a recipient of public services generally provided by the public body or board of which he or she is a member, on the same terms and conditions as if he or she were not a member of the body or board.”
As held in Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1101, “There must be no special treatment for the board member, either express or implied, as a consequence of board membership. Where, however, the board member receives benefits on the same terms and conditions as similarly situated constituents who are not board members, section 1091.5(a)(3) may apply.”
As noted by the Lexin Court in finding the board member interests were not personal, but shared with their constituents:
“A similar scenario arises when, for instance, a legislative body votes on tax proposals. Such proposals will affect different members of the polity differently. As every member of the legislative body is a citizen and constituent as well, the proposals will inevitably affect members of the legislative body differently too. Ordinarily, however, every legislator will be affected the same as any and all similarly situated nonlegislators. Such differences, generally speaking, are not tailored to afford special benefits to the legislators themselves. This is an unavoidable feature of a republic—representatives drawn from the polity as a whole to represent the interests of a constituency will in some instances necessarily be affected by the measures they must approve. (Cf. Secs. 87102.5–87103 [excluding from the purview of the conflict of interest laws legislators' decisions that affect a financial interest they share with the public generally].)”
(Lexin v. Superior Court, supra, 47 Cal.4th 1050, 1101, fn. 29.)
Government code § 820.2. That statute provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
In determining whether a public employee’s act is “discretionary” under Sec. 820.2, courts distinguish between the employee's operational and policy decisions. Immunity is restricted to basic policy decisions that have been expressly committed to coordinate branches of government and as to which judicial interference would be “unseemly.” (Barner v. Leeds (2000) 24 Cal.4th 676, 684-685.) “On the other hand, there is no basis for immunizing lower level decisions that merely implement a basic policy already formulated.” (Id. at 685.) “[V]arious factors furnish a means of deciding whether the agency in a particular case should have immunity, such as the importance to the public of the function involved, the extent to which governmental liability might impair free exercise of the function, and the availability to individuals affected of remedies other than tort suits for damages.” (Johnson v. State (1968) 69 Cal.2d 782, 789.)
Generally, no suit for money or damages may be brought against a government entity (or against a government employee acting in the scope of employment) unless and until a timely claim has been presented pursuant to the Government Claims Act (Gov.Code Sec. 810 et seq.) and either acted upon or deemed rejected by the passage of time. (Gov. Code Secs. 945.4, 950.2, 912.4.) These conditions apply to claims against school districts. (Ed. Code Sec. 35202.)
Gov. Code Sec. 911.2(a) provides:
A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.
Plaintiffs are required to present their Government Code claims to the District within one year of the accrual of their causes of action as a prerequisite to filing suit. (See DiCampli-Mintz v. Cty. of Santa Clara (2012) 55 Cal.4th 983, 990 (“failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.”)
Timely compliance with the Government Code claim presentation requirement is an essential element of a damages cause of action against a government entity: “a plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement.... [o]therwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (State v. Superior Court (2004) 32 Cal.4th 1234, 1243.) The same requirements apply with respect to a suit against a public employee for injury caused by an action or omission in the scope of his or her employment. (Gov. Code sec. 950.2; Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 613.)
It therefore would be error to sustain [public entity’s] demurrer based on Government Code section 820.2.” (Id.) Odello, by contrast, was a summary judgment case rather than a demurrer, in which the factual basis for a determination of discretion was found to be established by the evidence. EBMUD’s argument that it is categorically immune from a trespass cause of action is not the law. Rather, as outlined above, Government Code § 820.2 might provide immunity.
Contra Costa County, CA
Discretionary Immunity Government Code section 820.2 states that “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Cal. Govt. Code § 820.2.)
Georgina Torres Rizk or Jon R. Takasugi
Los Angeles County, CA
Discretionary Immunity Government Code section 820.2 states that “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Cal. Govt. Code § 820.2.)
Georgina Torres Rizk or Jon R. Takasugi
Los Angeles County, CA
Discretionary Immunity Government Code section 820.2 states that “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Cal. Govt. Code § 820.2.)
Wendy Chang or Jon R. Takasugi
Los Angeles County, CA
Thus, the contract between plaintiffs and PP&P to provide legal services in connection with the Ortega Reservoir Project and related litigation did not violate Government Code Sections 1090 and 87100. Plaintiffs also allege that the partnership agreement between Wullbrandt and PP&P violated Sections 1090 and 87100 because Wullbrandt received “additional secret and undisclosed profits and compensation in addition to fees paid to him as general counsel.” (SAC, ¶¶ 108.)
Santa Barbara County, CA
Discretionary Immunity Defendant argues that it is entitled to discretionary immunity under Government Code section 820.2, which provides that “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Govt. Code, § 820.2.)
Personal Injury/ Tort
other
Los Angeles County, CA
Defendants argue that the transactions alleged in the TAC do not violate Government Code sections 1090 or 87100 because the transactions are permitted and because PP&P was not a party to many of these contested agreements. Plaintiffs oppose the motion.
Santa Barbara County, CA
The Second Amended Complaint references two new causes of action relating to Government Code sections 1090 and 87100 not addressed by the SJM's. The court has been advised that responses related to the pending discovery motions may be required for the propounding parties to respond meaningfully to the SJM's. Further, the new Demurrer and Motion to Strike complicate the handling of the SMJ's.
Santa Barbara County, CA
Under Government Code Section 820.2, “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” However,iIn Barner v. Leeds (2000) 24 Cal.4th 676, 678, the court held that “not all acts requiring a public employee to choose among alternatives entail the use of discretion within the meaning of Government Code section 820.2.”
Personal Injury/ Tort
Auto
Los Angeles County, CA
Motion continued and the parties are ordered to submit supplemental briefs as to (1) whether Government Code section 820.2 bars any claim against Lind based upon her alleged failure to secure the property, and (2) whether Defendants owed a duty to plaintiff. Supplemental briefs are to be filed with court on or before 11/8/17 with a courtesy copied delivered to PS2 by 4:00 p.m. Hearing on MSJ continued to 11/14/17. Moving party to give notice.
Riverside County, CA
With respect to its claims against Galarze, Plaintiff has failed to plead facts sufficient to overcome the immunity provision set out in Government Code section 820.2. Plaintiff is granted 20 days leave to amend.
Riverside County, CA
Court finds that the training, staffing, and supervisory decisions here are discretionary acts that fall under Government Code section 820.2 immunities. They are planning and basic policy decisions that are immune from liability as an exercise of discretion. (See Caldwell v. Montoya (1995) 10 Cal.4th 972, 981, Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 794.) Demurrer overruled for defendant County of Riverside. Defendant must answer within twenty days.
Riverside County, CA
As to the contention that these claims are barred by Government Code section 820.2 discretionary immunity, there are no allegations in the complaint which demonstrate that any employee any act alleged was the result of an exercise of discretion. Furthermore, the discretionary immunity does not apply to the District’s alleged breach of mandatory duty (Gov. C. §815.6). (Bradford v. State of California (1973) 36 Cal.App.3d 16, 19-20.)
Riverside County, CA
Government Code Section 1090 The court finds Petitioner has failed to allege a claim under Section 1090. Section 1090(a) prohibits Respondent county officials from entering a contract in which they are financially interested. However, there are exceptions to the rule, including Government Code section 1091.5, subdivision (a)(3).
Sonoma County, CA
Plaintiff's objection also pointed out that defendant did not raise the defense of qualified immunity (Govt. Code § 820.2) until the reply papers. That omission prejudiced plaintiff insofar as counsel was unable to present a counter-argument or provide the Court with legal authority supporting her position. Because the issue of qualified immunity is significant, the hearing on this matter is continued to provide plaintiff time to file a supplemental brief.
Los Angeles County, CA
Explanation: Under Government Code section 820.2, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.)
Personal Injury/ Tort
other
Fresno County, CA
Government Code Section 820.2 Employees contend that pursuant to Government Code section 820.2, they are immune from liability for the third cause of action. The statute provides immunity for public employees from liability for injuries resulting from an “act or omission…where it was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code § 820.2.)
Santa Clara County, CA
Under Government Code §820.2, a public employee is not liable for an injury arising from his or her act that was the result of the discretion vested in them. The demurrer is sustained without leave to amend as to all causes of action.
San Luis Obispo County, CA
The Court OVERRULES DEFENDANT CRUZ’S demurrers, based on Immunity in Govt Code § 820.2. Defendant has not established the immunity applies including discussion of the principles of discretionary vs. ministerial conduct that govern the immunity. San Mateo Union High School District v. County of San Mateo (2013) 213 Cal.App.4th 418, 433–34. The Court SUSTAINS DEFENDANT CRUZ’ general demurrer to the 1st Cause of Action for Conversion for failure to plead sufficient facts.
Orange County, CA
The two proposed causes of action assert liability for conflicts of interest pursuant to Government Code sections 1090 and 87100. Defendant C.E. Chip Wullbrandt was the general counsel to each of the plaintiffs during the events upon which plaintiffs’ claims are based. (Proposed Second Amended Complaint [“PSAC”], ¶ 4.)
Santa Barbara County, CA
The Court overrules the Demurrer to the First, Second, and Fourth Causes of Action, finding that Government Code section 820.2 immunity does not apply to these causes of action. The Court sustains the Demurrer as to the Third Cause of Action for Trespass. In regards to the First Cause of Action for Inverse Condemnation, courts have narrowly circumscribed the types of emergencies that will shield a public entity from inverse condemnation liability, none of which are relevant here.
Butte County, CA
Government Immunity Employees first contend that pursuant to Government Code section 820.2, they are immune from liability for the third, fourth and fifth causes of action. The statute provides immunity for public employees from liability for injuries resulting from an “act or omission…where it was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code § 820.2.)
Santa Clara County, CA
Further, Government Code § 820.2 immunity also applies to investigatory acts. (Newton v. Cnty. of Napa (1990) 217 Cal.App.3d 1551, 1561.) Thus, because Government Code § 821.6 is applicable to this matter, so does Government Code § 820.2. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292 [“It follows that if section 821.6 applies, so also does section 820.2.”].) Therefore, Government Code § 820.2 applies and provides further immunity from Plaintiff’s lawsuit.
Employment
Discrimination/Harass
Los Angeles County, CA
Wullbrandt for violation of Government Code Sections 1090 and 87100. All of these claims, except the Government Code claims, are governed by Section 340.6(a) as each claim is based upon the same alleged negligent acts or omissions as alleged in the legal malpractice cause of action. See, Pompilio v.
Santa Barbara County, CA
While such new evidence is still insufficient for purposes of Govt. Code § 820.2 immunity, the repetition of this motion in this case is not precluded and does not implicate CCP § 128.7. Certain documents have been sealed pursuant to LAUSD’s previous motion and the court’s order of 2/2/18. Plaintiffs shall submit a proposed order with a proof of service to seal additional documents which were lodged in connection with these matters. Unless waived, notice of ruling by Plaintiffs.
Los Angeles County, CA
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