Calistoga Case: Not Just Anyone Can Sue A City!

It is a fundamental concept in litigation that the party seeking relief must have some real, beneficial interest in the outcome of the case.  A plaintiff cannot sue a city or other public entity simply because he or she does not like a certain policy or practice; the plaintiff must have standing to bring the lawsuit, which may either be conferred by law or because the plaintiff has suffered some sort direct or indirect harm. A February 3 published decision by the 1st District Court of Appeal clarifies this concept further, finding that neither a plaintiff’s status as a payer of sales tax in a given area—nor as a state citizen seeking redress for past government misconduct—meet the requirements for bringing such an action.

It’s on the Name Tag: Name and Rank of Peace Officers in Investigative Report Not Confidential

On July 23, 2013, the First District of the California Court of Appeal held that police officer identities and ranks in investigative reports unrelated to discipline or personnel actions are discoverable under the Public Records Act. 

In Federated University Police Officers Association v. Superior Court, several news outlets sought to discover an investigative report authored by a consultant to the University of California regarding the use of pepper spray by campus police during student protests at UC Davis in 2011.  14 officers were ordered by their chief to participate in interviews for the report, and were advised that information provided to the consultant would not be used in any disciplinary proceeding.  No officers who were the target of citizen complaints or internal affairs investigations were interviewed.  The report did not recommend discipline of any officer, and was directed at UC Davis administration-level decision-making.  A related task force report concluded that several officers performed improperly, but did not recommend discipline.  These reports were ultimately released to the news outlets with name and rank of involved officers redacted.

You Don’t Need a Peg Leg or an Eye Patch to be a Pirate

The Ninth Circuit Court of Appeals has held that the Sea Shepherd Conservation Society committed acts of piracy when it attacked Japanese vessels engaged in legal whaling under the auspices of a research permit issued by Japan.  Sea Shepherd vessels rammed the vessels of the Institute of Cetacean Research, hurled glass containers of acid, dragged metal reinforced ropes through the water to damage rudders and propellers, launched smoke bombs and flares with hooks and pointed high powered lasers at the ships, with the intent to damage and sink the vessels.  The court found that these acts of piracy violated several international agreements regarding conduct on the high seas and issued a permanent injunction against Sea Shepherd.  See Institute for Cetacean Research v. Sea Shepherd Conservation Society, United States Court of Appeals No. 12-35266 (9thCir. 2013).

Peace Officer and Firefighter Witness Fees Increased to $275

Attorney Authors: 

Beginning this year, it should be easier for public agencies to recover costs incurred in complying with subpoenas.  Effective January 1st, AB 2612 increased the subpoena deposit amount from $150 to $275 per day for peace officers and firefighters, as well as for state, trial court, and county employees.   Although a public agency is legally entitled to recoup the full costs incurred in making employees available in response to subpoenas, sometimes the agency cannot collect the balance of the costs without expending significant staff time.  The deposit amount had not been increased since 1986. 

AB 2612 amends Government Code section 68097.2 .  You can see the final version of the bill here.

Library Leafleting Policies Struck Down In Court Of Appeal

A recent challenge to broad policies regulating leafleting at the municipal library of the City of Redding saw a number of those policies struck down on First Amendment grounds.  In response to leafleting activity at the library, the library established a number of controls over leafleting.  The library designated a “free speech area” near the front entrance where leafleting could occur; prohibited all leafleting in the library parking lot; prohibited all leafleting involving solicitation of funds; required leafleting reservations at least 72 hours in advance; and prohibited any “offensively coarse utterance, gesture, or display, or… abusive language toward another person.”

Attorney Billing Records For Pending Litigation Are Generally Not Exempt From Disclosure

The California Public Records Act (CPRA) contains an exemption from disclosure for records pertaining to pending litigation.  This exemption has been construed narrowly, so that it applies only to documents prepared for use in litigation.  Other records that relate to a pending case, even if they are created only as a result of a pending case, are subject to disclosure unless another exemption applies.

The scope of the CPRA’s pending litigation exemption was clarified in the recent case of County of Los Angeles v. Superior Court of Los Angeles CountyThe County of Los Angeles claimed that all invoices, time records, and records of payment to law firms in a case currently in litigation were exempt from disclosure under the pending litigation exemption.  The Court of Appeal rejected this claim and clarified that attorney billing records pertaining to ongoing litigation are not protected by the pending litigation exemption.

Peace Officer Personnel Records May Be Discoverable In Administrative Proceedings

The Pitchess procedure allows for the discovery of confidential personnel records of peace officers in specific circumstances.  These records can be disclosed only where they are material to the subject matter of pending litigation, and only after an in camera inspection of the records by a court prior to disclosure.  Typically, Pitchess motions – which are usually made by criminal defendants – occur in the courts.  Under existing case law, Pitchess discovery cannot be used in certain administrative hearings, particularly where the records are not relevant to the issues in the hearing.  Many assumed that Pitchess discovery could not be used in any administrative proceeding.

Just Because It Could Be Safer Doesn’t Mean It’s Dangerous

California cities are often faced with claims arising from automobile, motorcycle, bicycle, and pedestrian accidents.  Many times, these claims focus on supposed faults in lighting, signals, signs, crosswalks or road grades.  The recent California Court of Appeal decision of Mixon v. Pacific Gas & Electric Company rejected exactly these sorts of claims.  The court explained that simply because, in hindsight, a roadway or intersection could possibly be made even safer does not mean that it constitutes a dangerous condition.  The opinion provides useful guidance to cities and reaffirms that minor risks of injury or conditions of the roadway that do not actually contribute to an accident are not dangerous conditions of public property. 

Spontaneous Wedding? Stick with Vegas

In Kaahumanu v. State of Hawaii, the Ninth Circuit rejected plaintiff’s constitutional challenge and upheld a regulation requiring commercial wedding vendors to obtain a permit before conducting weddings on public beaches in Hawaii.  (Click here to read the opinion in Kaahumanu v. State of Hawaii, 2012 DJDAR 7472 (9th Cir. 2012).)  The permit requirement eliminates the possibility of holding spontaneous weddings on Hawaii beaches, but the Court found there was no undue burden placed on protected speech because there no real interest in conducting such weddings in Hawaii and because it satisfied the criteria for a reasonable time, place and manner restriction on protected speech in a public forum.  The Court distinguished the case factually from its recent decision in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) where it invalidated a regulation requiring street performers to obtain permits before performing in the public grounds of the Seattle Center, in part because it precluded all spontaneous speech by performers from the Center grounds.  This decision highlights some of the limits of the Berger decision and reiterates the general rule that the constitutionality of regulations affecting protected speech is heavily dependent on the particular factual situation before the court. 

Names of Officers Involved in Officer-Involved Shooting Must be Disclosed Absent Showing of Interests Served by Nondisclosure

On February 7, 2012, the California Court of Appeal for the Second Appellate District upheld a trial court’s decision that release of officers’ names involved in an officer-involved shooting did not amount to an unwarranted invasion of privacy. Los Angeles Times Communications, LLC ("the Times") submitted a request to the City of Long Beach under the California Public Records Act (CPRA) seeking the names of police officers involved in a 2010 officer-involved shooting in Long Beach, and the names of all officers involved in shootings in Long Beach for the preceding five years. The Long Beach Police Officers Association (LBPOA) brought an action against the City of Long Beach, the Long Beach Police Department and the Chief of Police seeking to enjoin disclosure of the names. In support of its request, LBPOA averred that a shooting review which takes place after an officer-involved shooting can lead to findings resulting in an internal affairs investigation. LBPOA also expressed safety concerns about releasing the names of shooting officers. The Times moved to intervene and filed an opposition.

Court of Appeals Limits the Applicability of Heck v. Humphrey

The California Court of Appeals held on November 9, 2011 that the heirs of an individual killed by police while engaged in a crime are not precluded from bringing an excessive force lawsuit by the resisting arrest conviction of a co-participant in the crime.  In Beets v. County of Los Angeles, L.A. County Sheriff's deputies were chasing a car driven by the plaintiffs' son.  The son and his passenger bailed from the car and got into a nearby truck, which was then surrounded by the deputies on foot.  The two suspects engaged the deputies in a fight from inside the truck, and the plaintiffs' son started the truck and drove it into a police car and then towards one of the deputies, who shot and killed the son.  The passenger was tried and convicted of assault with a deadly weapon on a police officer.  Thereafter, the plaintiffs brought suit against the County, alleging that the Deputies had used excessive force against their son.  The trial court granted the County's demurrer and dismissed the case, finding that the passenger's conviction precluded the plaintiffs' lawsuit.

The Court of Appeal reversed on November 9, 2011, finding that the U.S. Supreme Court decision in Heck v. Humphrey, which prohibits a civil rights lawsuit that would necessarily invalidate a previous criminal conviction of the plaintiff, did not apply because the plaintiffs' son was not represented in the passenger's criminal trial.  Although these set of facts are not likely to arise frequently, the Beets decision does limit the availability of the Heckpreclusion defense in similar circumstances.  It is also important to note that this a California Court of Appeal decision, and not binding on federal courts, which often determine issues arising under the Heck case.

Meyers Nave and the City of Oakland Successfully Obtain Preliminary Gang Injunction Against Norteños Gang Members

Attorney Authors: 

In a closely-watched and high-profile case involving a civil gang injunction against the violent Norteños gang, Meyers Nave attorneys Tricia Hynes and Britt Strottman, working with the Oakland City Attorney's Office, succeeded in obtaining a civil gang injunction against Norteños gang members. Civil gang injunctions are court orders prohibiting a particular criminal street gang from engaging in various activities that are harmful and injurious to the community, its residents and business owners. The Honorable Robert Freedman of the Alameda County Superior Court granted the City of Oakland's request for a preliminary civil gang injunction order in full, relying upon all of the evidence and testimony submitted by the City. What this means is that the individually named gang members in the first phase of the litigation are now prevented from engaging in a broad range of activities, some of which are already crimes in their own right, and some of which are not crimes, per se, but have the real propensity to lead to crimes. Within a designated "Safety Zone" covering the neighborhoods where the gang operates, the enjoined individuals will be prohibited from associating with one another, intimidating witnesses, recruiting youth into the gang, knowingly being in the presence of drugs or firearms, wearing gang colors or being on the streets between the hours of 10 p.m. and 5 a.m. 

California Supreme Court Limits Medical Damages

The California Supreme Court today limited defendants’ liability for “medical special” damages.  “We hold . . . that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial.”  The court rejected plaintiff arguments that defendants are liable for the full “billed” amount, regardless of any discount the insurer may negotiate.  “We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.”  The court’s ruling prevents plaintiffs from recovering in damages more than the actual harm incurred.  

Administrative Hearings Are “Actions” Subject to an Award of Attorneys Fees

Attorney Authors: 

In Edna Valley Watch v. County of San Luis Obispo, the Court of Appeal determined that the trial court could make a Section 1021.5 award of attorneys’ fees that the plaintiffs incurred in preparing for an administrative hearing. 

As a prerequisite to filing their CEQA lawsuit, the plaintiffs had appealed San Luis Obispo County’s grant of a conditional use permit to a church for its planned church complex.  The court held that these administrative proceedings were useful and necessary to the litigation essentially because the plaintiffs could not have brought their lawsuit without first exhausting their administrative remedies, and that “[i]n fact, there can be no public interest litigation without first filing an administrative proceeding.” 

L.A. Police Officers Used Reasonable Force in Unintentional Death of Infant, Court Affirms

On June 10, 2005 Raul Pena took his 19 month old daughter hostage in his auto shop after threatening to kill various family members and himself.  A Los Angeles Police Department SWAT team was called in and attempted to negotiate with Pena, whom the officers knew was armed with a gun.  Negotiations failed, and the officers developed a plan to try to save Pena's daughter, by distracting and shooting him.  During execution of the plan, Pena shot at the officers, and they shot back intending to strike Pena but not the daughter, but killed both.  The daughter's mother sued the City, claiming that the officers had used unreasonable force, which caused the daughter's death.     

Claim Mailed to Public Entity's Risk Management Department Substantially Complies with Claims Requirement

In an opinion published May 26, 2011 the California Court of Appeal, Sixth Appellate District, held that a tort claim mailed to a public entity's risk management department satisfies the claims presentation requirement under Government Code Section 915. The plaintiff in the case, DiCampli-Mintz v. County of Santa Clara, H034160, underwent surgery at a County hospital, suffered complications, and claimed that the County and two of its physician employees were at fault. Her attorney mailed a claim to the two County physicians, and the County's Risk Management Department. The Risk Management Department received the claim shortly thereafter, and forwarded it to the County's attorneys. 

Mobile Home Rent Control Ordinances Still a Viable Option in California

On May 17, 2011, the U.S. Supreme Court refused to hear a developer’s challenge to the City of Goleta’s mobile home rent control ordinance, ending a long court battle over the future of the high value real estate and the validity of rent control regulations for mobile home parks in California.  (See Guggenheim, et al. v. City of Goleta, 598 F.3d 1061 (9th Cir.(Cal.) Mar 12, 2010), cert denied --- S.Ct. ----, 2011 WL 884881, 79 USLW 3554 (U.S. May 16, 2011).)  In December, an en banc panel of the Ninth Circuit upheld the ordinance, rejecting the Guggenheim’s regulatory takings claim finding that none of the three factors for establishing a regulatory taking, set forth Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), were satisfied.  (Click here to read prior post on Ninth Circuit ruling.)  This decision affirms the validity of rent control regulations as a tool for municipalities to provide housing options for lower income residents. 

Court Recognizes Immunity of Fire Departments Operating Vehicles at the Scene of a Fire

In a decision published April 20, 2011, the California Court of Appeal, Fourth Appellate District, confirmed that fire departments are immune from liability where a firefighter causes death or injury through the negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons and to extinguish the fire. This decision, which arose from the massive wildfires that swept through San Diego County in October and November of 2007, is beneficial for public entities that have fire departments because it recognizes that imposing liability in such situations might deter firefighters from making necessary decisions quickly under extremely stressful and dangerous circumstances.

In this case, Plaintiffs brought suit against Cal-Fire when they were injured during an attempt by state firefighters to assist in preventing the spread of fire to their property, and subsequent attempt to rescue them from their property. Their allegations focused on California Vehicle Code Section 17001, which deems a public entity liable for injuries caused by its employee's negligent operation of a motor vehicle. In response, Cal-Fire asserted that it was immune from liability under California Government Code Section 850.4, which provides immunity for any injury caused in fighting fires. Although the Court of Appeal recognized that the immunity applied under the facts presented in the case, it also recognized that liability could result from a firefighter's tortious act or omission in the operation of a motor vehicle while proceeding from another location to a fire in response to an emergency call.

You can read the Court's entire opinion in this case, Varshock v. Cal-Fire (D57709), here.

Mobilehome Park Rent Control – the Battle Continues

The battle between private property owners and municipalities over the constitutionality of rent control ordinances for mobile home parks wages on. Owners of a mobilehome park in the City of Goleta, the Guggenheims, have filed a petition for certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s rejection of their Fifth Amendment takings claims in July 2010. Their petition asks the Supreme Court to reverse the Ninth Circuit’s decision and find that the City’s ordinance caused a taking of their property. (Click here to see the Guggenheim v. City of Goleta petition for certiorari.)

In 1997, the Guggenheims purchased the mobilehome park subject to rent control under a County ordinance. The ordinance was adopted by the City of Goleta when it incorporated in 2002. The Guggenheims promptly sued the City claiming the rent control ordinance caused a taking of their property without payment of just compensation. The trial court granted summary judgment for the City, but a three judge panel of the Ninth Circuit reversed in a controversial decision. The Ninth Circuit granted the City’s request for a rehearing en banc and affirmed the trial court decision in favor of the City.

The Guggenheims’ argue that the Ninth Circuit’s en banc decision conflicts with the Supreme Court’s holding in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), conflicts with decisions from other federal and state appellate courts and is “a major blow to private property rights.” In essence, the Guggenheims seek to restrict the authority of local governments to adopt land use regulations affecting private property unless the government compensates the property owner, and/or any subsequent owner, for any economic impact of the regulation either at the time of adoption or at any time in the future.

Proposed Law Gives Attorney's Fees to Successful Bid Challenger

A new bill (A.B. 457) was recently introduced in the California Legislature that would provide attorney's fees to a public works bidder who is not awarded a contract for a public project, but who successfully challenges the bidding process for the project in court.

Ninth Circuit Panel Makes it More Difficult for Public Agencies to Recover Attorneys Fees Expended in Defending Unmeritorious Civil Rights and Employment Discrimination Lawsuits

A three judge panel of the Ninth Circuit Court of Appeals issued an opinion which will make it more difficult for local governments to recover attorneys fees they expend defending against unmeritorious civil rights and employment discrimination lawsuits. The law has long been clear that while a plaintiff who prevails in such a lawsuit will almost always recover his or her attorneys fees, a prevailing defendant is only entitled to recover attorneys fees if the court finds the plaintiff’s claims were “unreasonable, frivolous, meritless or vexatious.” The new case, Fabbrini v. City of Dunsmuir, 2011 slip. op. 2317 (9th Cir 2011) addresses a defendant’s right to recover fees when a complaint contains both claims for which attorneys fees are available and non-frivolous claims for which fees are not recoverable.

In an earlier case, Tutor-Saliba Corp. v. City of Hailey 452 F.3d 1055 (9th Cir 2006), the Ninth Circuit had rejected an argument that the mere presence of some non-frivolous claims barred a defendant from recovering fees expended in defending the frivolous claims at least where there is a clear basis to determine what work was performed for what claims. However, the court left open the question of what to do “where frivolous claims are combined with non-frivolous claims and the claims are not sufficiently distinct.” Id. at 1064, fn. 4. In Fabbrini, the court appears to have held that those fees are not recoverable.

In Fabbrini, the plaintiff pursued state and federal law civil rights claims all of which were eventually dismissed. Even though the federal claims were dismissed, there was no finding that they were frivolous. The district court awarded the defendant the attorneys fees it incurred in prosecuting an anti-SLAPP motion to dismiss the state law based claims. In addition to those fees, the district court had also awarded approximately $ 8,000.00 for work that was performed that was related to the arguably non-frivolous federal claims but was also “inextricably intertwined with” the work that was performed defending the state law claims for which fees were available. The district court was following a long line of decisions holding that a plaintiff who prevails on claim for which fees are available can also recover fees for work preformed on claims where fees are not available if the claims are sufficiently intertwined such that “the time spent on the claims could not reasonably be divided” See, Armstrong v. Davis, 318 F.3d 965, 975 (9th Cir. 2003). Thus, for example, if a plaintiff were to pursue four civil rights claims but only prevail as to one, he or she could still recover fees for all of the time spent conducting discovery that would be relevant to all four claims. In Fabbrini, the court held this principle does not work in reverse.

In rejecting the award of the additional fees, the court adopted a per se rule that where there are non-frivolous federal civil rights claims present, attorneys fees cannot be awarded to a prevailing defendant unless the fees are “exclusively attributable” to the claims for which fees are available. For example, if a plaintiff includes four clearly frivolous claims with one arguably non-frivolous claim, Fabrinni gives rise to an argument that any discovery, investigative work or motion practice incurred defending against the frivolous claims is not recoverable if the work can also be related to the one non-frivolous claim. Thus the presence of a single non-frivolous claim can be used to defeat or severely limit a fees motion brought by a prevailing defendant even where the majority of the plaintiff’s case is clearly frivolous.

Ninth Circuit Expounds on Burden Shifting Framework Established by the Supreme Court in City of Los Angeles v. Alameda Books

In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses. (See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) [“Alameda Books”].)

The burden-shifting framework provides that after a municipality supplies evidence supporting its rationale for passing an ordinance, the plaintiffs may attempt to “cast doubt” on the City’s evidence and rationale, after which the City may attempt to rehabilitate its rationale. (Alameda Books, 535 U.S. at 438-39.) Further, a municipality’s justification must not be that its regulation will reduce secondary effects simply by reducing speech proportionately. (Id. at 450, Justice Kennedy’s concurrence.)

The District Court, on remand several years after the Supreme Court’s ruling, employed the new framework and found that two expert declarations submitted by plaintiffs were sufficient to “cast doubt” on the City’s rationale for the ordinance. The declarations suggested that the City’s intent in passing the ordinance was to reduce secondary effects by closing arcades and therefore, proportionately reducing speech.

The Court found this testimony sufficient to shift the burden back to the City to rehabilitate its rationale, but then struck the primary evidence offered by the City for this purpose and granted summary judgment for plaintiffs.

The Ninth Circuit reversed. The Court explained that the District Court erred when it found the two declarations submitted by plaintiffs sufficient to “cast doubt” on the City’s rationale. The Court, in line with all of the key appellate decisions which have applied the Alameda Books framework, found that in order to successfully “cast doubt” on a municipality’s rationale for its adult ordinance, a plaintiff must offer not merely some evidence, but “actual and convincing” evidence. Such evidence must do more than challenge the government’s rationale; it must convincingly discredit the foundation upon which the government’s justification rests. If the City has multiple rationales in support of its regulation, a plaintiff must convincingly discredit all of the offered bases.

The Ninth Circuit found that plaintiffs’ declarations did not satisfy this standard because both declarants were biased, having a financial stake in the outcome of the decision, and neither offered any empirical evidence in support of their conclusions. The Court held that the frailty of such expert evidence must be examined at trial to determine whether it satisfies the heavy burden of “actual and convincing” evidence required under Alameda Books; such a determination is not appropriate on summary judgment.

This opinion reaffirms the holding in Alameda Books that an adult business bears a heavy evidentiary burden when challenging municipal regulations designed to ameliorate secondary effects of such businesses. If either an adult business or a City intends to rely on expert testimony in the second and third phases of the burden-shifting framework, either to “cast doubt” on the City’s grounds for the ordinance or to rehabilitate the ordinance, it must ensure that the expert testimony is sufficiently credible to meet the evidentiary burdens for summary judgment. For an adult business, expert testimony alone, without corroborating empirical evidence, may not do the trick on summary judgment and may require a full blown trial.

For more information on this case or other First Amendment matters, contact Dawn McIntosh or Deborah Fox at 800.464.3559.

Annoying Civic-Mindedness or Credible Threat of Violence?

Can a city restrict the conduct of a self-described civic-minded individual, with a history of flamboyant speech and dramatic behavior in his communications with the city, without running afoul of free speech rights? In City of San Jose v. William Garbett, filed on November 24, 2010, the Sixth Appellate District Court of Appeal says yes, when the conduct meets the conditions for an injunction under Code of Civil Procedure section 527.8.

Section 527.8, also known as the Workplace Violence Safety Act, allows any employer to seek a temporary restraining order and injunction on behalf of an employee who “has suffered unlawful violence or a credible threat of violence from any individual” at the workplace. For purposes of the statute, a city is an “employer.” (Code Civ. Proc. § 527.8(d).) “Unlawful violence” is defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, …” (§ 527.8(b)(1).) “Credible threat of violence” is defined as “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.8(b)(2).) To obtain an injunction, an employer must establish, by clear and convincing evidence, not only that the defendant engaged in unlawful conduct within the meaning of the statute, but also that great or irreparable harm would result to the employee if the injunction were not issued due to the reasonable probability unlawful violence will occur in the future. (Code Civ. Proc. § 527.8(f); Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335.)

In Garbett, the City of San Jose sought 14 injunctions (and temporary restraining orders) on behalf of the city’s deputy city clerk, the mayor and city council. The city submitted evidence that the appellant, William Garbett, age 70, had a long history of grievances with the city going back many years, and that the appellant made a “credible threat of violence” toward a deputy city clerk, and other city employees under section 527.8(b)(2). In addition to evidence that the appellant regularly visited the city clerk’s office and attended city council meetings, expressed fanciful ideas, appeared agitated or angry or resentful toward the city, and had inappropriate verbal or physical outbursts, there was additional evidence that this antagonism escalated. Specifically, there was evidence that the appellant threatened a deputy city clerk by stating that his only recourse to change policy in San Jose was to take action similar to that of one angry man in Kirkwood, Missouri, who a few months prior had shot and killed several people at Kirkwood City Hall. The deputy clerk, who understood the reference, reportedly felt threatened and feared for her safety and the safety of the mayor and city council. After she reported the event, the city searched the appellant when he attempted to enter council chambers and implemented extra monitoring procedures or security measures.

The trial judge granted the city’s initial requests for interim restraining orders. Following an evidentiary hearing – which included the testimony of several witnesses who had previous interactions with the appellant and two expert witnesses – the trial judge also issued 14 injunctions restricting the conduct of the appellant toward the deputy city clerk, mayor and council.

Each injunction included orders requiring the appellant to stay 300 yards from the protected individuals and City Hall. The injunction also included specified exceptions which would allow appellant to attend public City Council. Those exceptions included requiring appellant to enter City Hall through a specified entrance, be subject to a search before entering the City Council chambers, sit in a specific row, use a particular stairway during meetings, and communicate with the City Clerk’s office by mail or proxy.

Appellant sought review of the injunctions contending, in part, that the orders restricting his conduct and movements violated his rights to free speech under the First Amendment to the United States Constitution and the California Constitution, and represented the city’s attempt to “curtail what amounts to annoying behavior.”

The Court of Appeal affirmed all 14 injunctions including the restrictions on the appellant’s movements. The Court disagreed with the appellant’s First Amendment arguments, relying on California Supreme Court precedent establishing the right of the state to penalize willful threats to perform illegal acts, even those consisting of pure speech. In re M.S. (1995) 10 Cal.4th 698, 710.) The Court also found substantial evidence to support the court’s factual findings on the requisite elements of section 527.8, namely that the appellant had expressed a credible threat of violence toward city employees that was not constitutionally protected speech; that this conduct caused the city employees to experience fear; and a likelihood of future harm.

When the appellant protested that he did not intend to threaten anyone, the Court dismissed this argument, concluding that the defendant’s subjective intent is not required for the conduct to be deemed a credible threat under the current definition found in section 527.8(b)(2).

Appellant further challenged the injunctions on overbreadth grounds, taking issue with the limitations on his access to the City Hall building and his movements within the council chambers. The Court nevertheless upheld these restrictions, deferring to the trial judge’s view of the evidence and factual findings on the requisite elements of section 527.8, and the lower court’s considerable discretion to fashion orders aimed at preventing harm of the nature suggested by the threats.

The Garbett case establishes good law for public entities which seek to curtail repeat offenders or conduct that escalates or develops into what has been classified as more than merely annoying or unprotected speech.

Public Works Contractors Entitled to Recover for Extra Work Absent Board Approval

On public projects, disputes frequently arise between a public entity owner and general contractor as to whether the contractor is entitled to be paid for project-related work performed beyond the original contract plans and specifications. In a decision published November 2, 2010 the California Court of Appeal, Fourth Appellate District, found that a contractor may recover for extra work despite the fact that the public entity’s governing board did not approve such work, where the contract terms are inconsistent regarding whether the board or the board’s authorized representative must approve of the extra work. In the case, Mepco Services, Inc. v. Saddleback Valley Unified School District, D055018, the School District argued that the contractor should have been prohibited from claiming that it was entitled to compensation for the extra work in light of California law, which generally holds that because of competitive bidding requirements, contractors are not permitted to recover on contracts entered outside the authority of the public entity’s board. To read the lengthy opinion, which dealt with various other evidentiary issues, click here.

City Officials Immune in Challenge to Sale and Lease of Public Property

In a decision filed October 6, 2010 the Ninth Circuit Court of Appeals held that various city officials were immune from liability regarding their decision to lease and sell certain public property. In the case, Community House, Inc. v. City of Boise, Idaho, 09-35780, Community House leased a building containing a homeless shelter and low income housing from the City for over ten years, but in 2004, the City terminated the lease. The next year, the City leased the building to another organization that provided similar services, but that had a religious focus, and later sold the building to the other organization pursuant to an option to purchase clause in the lease. Community House sued the City, its mayor and City Council members, and two high-level City employees, contending that these defendants had violated the First Amendment's prohibition on the establishment of religion. The defendants moved for summary judgment in the trial court, and lost, and sought review with the Court of Appeals.

The Court of Appeals found that the mayor and members of the City Council were entitled to absolute legislative immunity for their actions in promoting and approving the lease. Specifically, the Court recognized that the "decisions about how to further the City's laudable goal of fighting homelessness is a prime example of the need to city council members the freedom to make important and difficult discretionary decisions without fear of being personally sued for it." The Court also found that the two City employees were entitled to qualified immunity because at the time the City approved the lease and sale, a reasonable official would not have known that such actions would violate the Establishment Clause.

The Community House decision is significant for California municipalities because it confirms both that their council members and executives cannot be held personally liable for legislative decisions, and that their employees are immune from liability for constitutional violations where they acted reasonably.


On September 9, 2010, in Anderson v. City of Hermosa Beach, the Ninth Circuit reversed the district court and directed that summary judgment and an injunction be granted in favor of a person seeking to establish a tattoo parlor, holding that tattooing is a form of pure expression fully protected by the First Amendment, and that the city’s total ban on tattoo establishments was not a reasonable “time, place and manner” regulation.

The city’s zoning code, by omitting tattoo parlors among the list of allowable uses, effectively banned the siting of such businesses anywhere within the city. The city argued that it needed only a rational basis for its zoning decision, and that the health concerns associated with tattooing combined with the lack of county personnel available to inspect tattoo parlors justified its total ban.

The court, taking judicial notice of “the skill, artistry, and care that modern tattooists have demonstrated,” and drawing on detailed explanations of the art and history of tattooing, concluded that tattoos themselves, the process of tattooing, and the business of tattooing are all protected as “pure expressive activity.” Thus, the court explained, a reasonable “time, place and manner” test, rather than the less stringent tests applicable to the regulation of mere “conduct with an expressive component,” should apply.

Applying the time, place or manner test, the court concluded that the city’s total ban on tattoo parlors failed because it was substantially broader than necessary to achieve the city’s goals of protecting the public health. The city’s arguments that current government resources were insufficient to safeguard the city's legitimate health concerns could not, without a stronger evidentiary showing by the city, justify the ban, because, among other things, the deployment of additional resources to safeguard public health is within the city's control. For this reason, the court believed that enhanced regulation of tattooing (rather than a total ban on tattoo parlors) would achieve the city’s objective.

The court also concluded that even if the city's prohibition were tightly fit to the purpose of protecting health, another prong of the reasonable time, place or manner test would doom the ban: because the medium of the human body is unique, tattoo artists and wearers would lack the constitutionally mandated adequate alternative channels to express themselves if tattoos were completely unavailable.

The Ninth Circuit recognized that its ruling conflicts with those of many other jurisdictions, perhaps setting up a request for en banc review or a cert. petition in the U.S. Supreme Court.

After this decision, city-wide bans of tattoo parlors are unlikely to survive. Although the opinion leaves open the possibility of significant regulation of these establishments, for a city to show that no plausible regulation could ameliorate its public health and safety concerns, such that a ban is necessary, would appear difficult.

Three-Year Statute of Limitations Confirmed for Inverse Condemnation Causes of Action

In Bookout v. State of California, 2d Civil No. B214906, the California Court of Appeal, Second Appellate District, confirmed that a three-year statute of limitations applies to a cause of action against a public entity for damage to private property based upon a theory of inverse condemnation. In the case, the appellant filed suit against Caltrans, San Luis Obispo County, the Oceano Community Services District and Union Pacific Railroad in 2006, alleging that they had caused his property to flood, which resulted in damage sometime in 2002 or before. In finding at trial that the appellant's case was time-barred, the trial court noted that for inverse condemnation causes of action, the three-year limitations period under California Code of Civil Procedures section 338(j) generally applies, and a five-year statute of limitations applies only where a public entity has physically entered and exercised dominion and control over some portion of the plaintiff's property. Additionally, the trial court found that the appellant's property had not sustained repeated damage incident to a public improvement so as to avail the appellant of a longer limitations period. The Court of Appeal confirmed the trial court's findings in full. This case is a good result for public entities because it confirms that property owners must generally bring suit for inverse condemnation within three years of when the damage to their property occurs. Such lawsuits can be costly for public entities because plaintiffs who prevail in them are entitled to their attorneys' fees.

Affordable Housing Regulations Survive Another Challenge

The City of Cotati has defeated the Pacific Legal Foundation ("PLF") in a challenge to the City’s affordable housing regulations and protections for the endangered California Tiger Salamander. (Click link to read the opinion in Mead v. City of Cotati, Ninth Circuit Case No. 09-15005.) In 2008, PLF sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission’s decision to issue a permit for his project – comply with the City’s affordable housing regulations and comply with guidance issued by the wildlife agencies for the protection of the endangered California Tiger Salamander ("CTS"). On PLF’s website they announced that the lawsuit against the City was ground zero in their national campaign to eradicate affordable housing regulations and to change takings law in favor of property owners. On July 22, in an unpublished opinion, the Ninth Circuit affirmed the dismissal of the case by the District Court for failure to state a viable claim and rejected PLF’s entreaties to soften the takings standards for property owners. Not surprisingly, this case no longer appears as the poster child on PLF's website.

Déjà Re-Vu: L.A.-based Court of Appeal Rejects City’s Anti-SLAPP Motion; Cal. Supreme Court Declines to Review

Last week, the Court declined to review—and so left standing as good law—an opinion by the Second District Court of Appeal setting out a narrow view of when public entities can use the anti-SLAPP statute. That statute authorizes quick dismissal of meritless suits if they are based on a defendant’s speech or petitioning. It’s the second time this year that the L.A.-based Second District has published an opinion rejecting a city’s anti-SLAPP motion, and the Supreme Court has denied review. Those denials do not mean that the Court has approved the analyses in USA Waste of Cal., Inc. v. City Of Irwindale (2010) 184 Cal. App. 4th 53, or Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (GPC). But they do leave the opinions on the books. That makes the opinions binding on trial courts—though not on other courts of appeal.

In USA Waste, a city adopted guidelines for back-fill projects, applied them to an ongoing project of USA Waste’s, and issued a Notice of Violation (NOV). USA Waste believed that a pre-existing Reclamation Plan and contract barred the City from applying the new guidelines to it. It asserted various claims, and the City replied with an anti-SLAPP motion. The claims, the City argued, were based on its speech—to wit, the NOV.

No, they weren't, said the court of appeal: the root of the claims was the underlying dispute over whether the guidelines apply, not the act of issuing an NOV. Suits "to enforce, interpret or invalidate ... laws," it said, are "generally not subject to being stricken under the anti-SLAPP statute." Otherwise, "efforts to challenge governmental action would be burdened."

For that idea, USA Waste cites GPC. GPC, a terminated contractor, sued to nullify its successor’s contract, claiming that the City had ignored com- petitive bidding laws. In rejecting the City's anti-SLAPP motion, the court held that the suit wasn't based on the City's speech in dealing with the rival contractors, but on its act of awarding a contract without first taking bids.

While the Supreme Court's denials of review leave USA Waste and GPC on the books, and binding on trial courts, they still leave other courts of appeal with room to disagree. The Court affirmed just last year that cities can file anti-SLAPP motions in proper cases. (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17.) Even in USA Waste, one Justice wrote separately that he found the case much closer than his colleagues. But the L.A.-based court of appeal as a whole seems to be charting a narrow course for public entities’ anti-SLAPP motions.

Home on the Range: Ninth Circuit Affirms U.S. Fish and Wildlife Service’s Significant Discretion in Designating Critical Habitat for Endangered Species

The U.S. Fish and Wildlife Service ("Service") is often beset with litigation when it designates critical habitat for a species listed as endangered or threatened under the Endangered Species Act (“ESA”)--by environmentalists who feel the designation is insufficient, and by industry representatives who argue that it is too broad. In Arizona Cattle Growers' Association v.

California Supreme Court Declines to Review Opinion Making it Harder for Cities to Defeat Dangerous-Condition-of-Property Claims

The state Supreme Court last week declined to review or to depublish the court of appeal's opinion in Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337. Lane holds that, when a plaintiff alleges that a dangerous condition of public property caused injury, a lack of prior accident claims is not enough to enable the public entity to defeat the claim on summary judgment. We blogged about Lane and its significance when it appeared. The denial of review means that Lane will stand as California law binding on all state trial courts. However, the denial does not mean that the California Supreme Court has endorsed the Lane rule. Thus, other courts of appeal could reject the rule in future cases—though that is unusual. We will continue to track this issue.

Protected Delta Fish Relieved That State Agencies are People Too

The Department of Water Resources ("DWR"), a state agency, operates a pumping system in the Sacramento -San Joaquin Delta that results in the taking of three fish species listed as threatened or endangered under the California Endangered Species Act ("CESA"). DWR was sued by Watershed Enforcers, a nonprofit corporation, to stop DWR from pumping unless and until it obtained a permit authorizing the take of the listed fish species under CESA. Three local water agencies intervened in the lawsuit arguing that DWR is not a "person" as that term is defined in CESA.

Fleeing Felons Foiled Again; Getaway Driver Gets Away (for Once)

In the not-very-closely-watched case of Espinosa v. Kirkwood, a Riverside-based court of appeal held yesterday that two burglars, injured when their getaway driver crashed their car, could not sue the getaway driver for their injuries. The burglars and driver were then arrested—the driver after trying, in an apparent lapse of professional pride, to leave the scene of the crash on foot. The court found the suit barred by Proposition 213, which prevents convicted felons from recovering damages proximately caused by someone’s negligence during their commission of, or flight from, a felony. The opinion doesn’t discuss whether the burglars have a valid claim against the failed getaway driver/walker for professional negligence—though the fact that he crashed into a line of cars stopped at an intersection suggests that this might have been a more promising avenue to pursue.

The court of appeal certified its unsurprisingly brief opinion for publication, making it binding precedent that trial courts must follow in future cases. Presumably, the court of appeal aimed to persuade the injured-burglar plaintiffs’ bar once and for all that getaway-crash litigation doesn’t pay. The blawg team will closely monitor this fascinating case, and promptly inform you if the burglars petition the California Supreme Court to review what they surely consider a criminal injustice.

Cities Can Prohibit Solicitions of Employment Between Day Laborers and Drivers to Protect Traffic Flow and Public Safety

The Ninth Circuit has upheld an ordinance adopted by the City of Redondo Beach which prohibits solicitations of employment (as well as business and contributions) between day laborers and occupents of motor vehicles on streets or highways. Both the trial court and the Ninth Circuit in Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, No.

In a Good Opinion for Public Entities, Court Clarifies Police Officers' Duties to Injured Persons

In an opinion published last week, the Court of Appeal for the Second District, found that California Highway Patrol officers who responded to an automobile accident were not liable to an injured person who refused treatment at the scene and left of her own accord. The plaintiff in Camp v. State of California, B209176, was a passenger in a car driven by a drunk driver, who drove off a country road near Santa Maria. Two CHP officers responded to the accident and repeatedly asked Camp if she required medical assistance; each time, she refused. A friend eventually carried Camp to another car and drove her away, but she was hospitalized a few hours later with severe spinal cord injuries. She sued the State, contending that the CHP officers’ alleged negligence in assessing her condition at the scene was a substantial cause of her injuries.

The jury awarded Camp nearly $2.7 million in damages. The Court of Appeal's opinion reversing the award thoroughly reviews the law on the duties of police officers who encounter injured persons. Ultimately, most important to the Court was its conclusion that, by merely assessing whether Camp was injured, the officers did not voluntarily assume a duty to provide her a particular level of protection.

This opinion is important and relevant to local law enforcement officers as well, because it confirms that officers owe no general duty of care in managing an accident scene. Officers only assume a duty of care if they engage in affirmative conduct that induces reliance by an injured person, or change the injured person's risk of harm.

Will the Vacancy Control Provisions in Goleta's Rent Control Ordinance for Mobile Home Parks be Upheld in the Latest Court Battle?

The Ninth Circuit is poised to reconsider its controversial decision that a vacancy control provision in a rent control ordinance for mobile home parks in the City of Goleta caused a taking of private property under the Fifth Amendment. The split decision by a three judge panel in Guggenheim v.

California Supreme Court to Decide If ADA Bars Automatic Fee Awards to Successful Defendants in California Disability Cases

The California Supreme Court has granted review in a case that will determine when public entities (and anyone else) can recover attorneys’ fees for successfully defending themselves against suits under California law by persons with disabilities regarding access to public facilities. The case is Jankey v. Lee, No. S180890. The issue, which has divided state and federal courts, is whether federal law—specifically, the ADA—pre-empts a California statute that requires an award of attorneys’ fees to any prevailing defendant in a suit seeking an injunction regarding access.

The California Disabled Persons Act (CDPA) authorizes suits for injunctive relief by anyone with a disability who is denied full use of public places or facilities, such as streets, sidewalks, transportation, and medical facilities. The provision authorizing injunctive actions automatically awards fees to a prevailing plaintiff or defendant—even if the suit was not frivolous. That differs from California disability laws governing damages actions, which never allow fees for defendants. And it differs from the federal ADA, which only permits fee awards against plaintiffs if their suits were frivolous.

The Ninth Circuit Court of Appeals held last year in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742 that awarding defendants fees for nonfrivolous injunctive actions under the CDPA is “inconsistent with, and therefore preempted by, the ADA.” In February, i n Jankey v. Lee (2010) 181 Cal.App.4th 1173 , rev. granted May 12, 2010, S180890, a California Court of Appeal disagreed. It noted that California disability law lets plaintiffs choose among many claims and remedies; they only risk a fee award if they choose to seek an injunction. And California disability law as a whole is more protective than the ADA, so preemption is improper.

The California Supreme Court will now decide for all California state courts which view is right. In the short run, its grant of review wipes the Court of Appeal opinion in Jankey off the books; defendants in state court no longer can cite it. In California federal courts, the Ninth Circuit’s view in Hubbard still governs. And it will still do so no matter what the California Supreme Court rules—unless the U.S. Supreme Court gets involved. It might if, in Jankey, the California Supreme Court rejects the Ninth Circuit’s view .

Court of Appeal Decision Adversely Affects Public Entity Liability for Dangerous Conditions

In an opinion published on April 16, 2010 the California Court of Appeal, Third Appellate District held that in cases in which a plaintiff has alleged that a dangerous condition of public property caused injury, the public entity defendant cannot rely on the absence of prior accident claims to prove that the public property did not pose a substantial risk of injury to the plaintiff. In the case, Lane v. City of Sacramento, C060744, the City of Sacramento brought a summary judgment motion on the plaintiff's claim that the dangerous condition of the City's roadway caused an automobile accident. The City argued that it could not be liable because in the absence of prior accidents, there was no basis to find that the roadway posed a substantial risk of injury. In support of the argument, the City relied on evidence that no previous claims had been filed against the City for injuries at the subject location.

In reversing the trial court's order granting summary judgment on behalf of the City, the Court of Appeal found that the City's evidence showed only that the City had found no evidence of prior claims against the City in connection with accidents at the location in question, rather than showing that no other accidents had actually occurred there . The Court also stated that a lack of prior accidents, even if properly proven, would not be enough by itself to bar Plaintiff's claim at the summary judgment stage, although it would be relevant supporting evidence.

This decision is important because it requires public entities defending themselves from dangerous condition claims present sufficient evidence that no other accidents occurred at the location in question . Simply showing that no previous claims ha ve been filed will not be sufficient. The Court of Appeal did not specify what would be an adequate way of proving a lack of accidents. It seems, though, that a lack of police reports would be one helpful, further step beyond a lack of claims. The issue will have to be developed in future cases. The opinion, available here, also contains important discussions regarding the relevance of a plaintiff's exercise of due care, and the causation element of a dangerous condition claim.

Is Mobile Home Park Rent Control a Taking?

On March 12, 2010, the U.S. Ninth Circuit Court of Appeals granted the City of Goleta’s request for an en banc hearing in the case of Guggenheim v. City of Goleta 582 F.3d 996 (9th Cir. 2009). The wrangling surrounding this case has been closely watched by both sides of the debate on the regulatory takings front since the Court issued its split decision in September 2009. In this 2-1 decision by Judge Bybee, the Court found that Goleta’s mobile home rent control ordinance caused a facial regulatory taking for which compensation must be paid (under Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978)). The mobile home park owners brought suit after the City imposed the already existing county rent control ordinance when it incorporated in 2002. The opinion was immediately controversial – assailed by many, including low-income housing advocates, as a vast departure from existing jurisprudence and hailed and applauded by property owners advocates. Goleta promised to seek a full panel hearing the from the Court, and that requested was granted. Oral arguments are tentatively scheduled for June 21, 2010.

For an in depth review of the opinion, click here.

Contractors Permitted to Use Modified Total Cost Method of Damages in Public Project Claims

General contractors on a public works projects often assert close-out claims against the public entity at the end of projects. When this occurs, a major issue often is the method in which the general contractor can prove its damages on a claim. On March 18, 2010 the California Court of Appeal, Second Appellate District, confirmed that in California, general contractors are permitted to use the modified total cost method to prove damages on close-out claims. Under the total cost method, damages are determined by subtracting the contract amount from the total cost of the contractor's performance. Under the modified total cost method, if the contractor is responsible for some of its increased cost of performance, then those costs are subtracted from the contractor's damages to arrive at the modified total cost. In other words, the contractor cannot be foreclosed from proving the amount of damages caused by the public entity, just because the contractor itself is responsible for some of its extra costs. The Court's opinion in the case, Dillingham-Ray Wilson v. City of Los Angeles, B192900, is available here.

California Supreme Court to Decide If Parties Have Right to Appellate Review Before Complying With Cities' Legislative Subpoenas

The California Supreme Court announced this week that it will decide an important question about enforcing legislative subpoenas issued by cities to aid investigations: If a trial court orders a party to comply with such a subpoena, is the party automatically entitled to have an appellate court review that order before the party must comply?

The Court will decide that question in the context of a dispute over subpoenas that the City of Dana Point issued to require five medical marijuana dispensaries to produce records the City could use to determine if they are operating legally. After a trial court ordered the dispensaries to comply with the subpoenas, each filed a notice appealing the order to the Fourth District Court of Appeal, based in Orange County. In 2007, the Sixth District Court of Appeal in San Jose held that a party in such circumstances has the right to appeal the order enforcing the subpoena. (City of Santa Cruz v. Patel (2007) 155 Cal.App.4th 234; read the relevant part here.) Such an appeal automatically stays the order until the court of appeal decides the case, which usually takes at least a year. In the Dana Point cases, the court of appeal issued an order stating that the parties did not have the right to appeal, but must instead seek review by petitioning the court of appeal to issue an extraordinary writ. This is an important difference: courts of appeal can and usually do deny writ petitions summarily and within weeks, without full briefing, oral argument, or a written opinion. Moreover, filing such a petition does not automatically stay the order, though the party resisting compliance can ask the courts for such a stay.

The California Supreme Court has now agreed to resolve the dispute over how a party resisting a legislative subpoena can secure appellate review. While the issue in these cases is limited to subpoenas issued by a city under Government Code section 37104, the Court's ruling may also resolve a parallel, unsettled dispute over appellate review of administrative subpoenas issued by State agencies and departments.

The five cases are:

  • Enforcement Against Dana Point Safe Harbor Collective, No. S180365
  • Enforcement Against The Point Alternative Care, Inc., No. S180468
  • Enforcement Against Holistic Health, No. S180560
  • Enforcement Against Beach Cities Collective, No. S180749 and
  • Enforcement Against Dana Point Beach Collective, No. S180803

City Causes Landslide, Appellate Court Holds No Liability Insurance Coverage

A common liability insurance policy exemption has barred a city from seeking indemnification for land subsidence damage the city caused. In the case, City of Carlsbad v. Insurance Company of the State of Pennsylvania, the City of Carlsbad paid approximately $12 million to residents whose homes were damaged by a landslide caused by the negligent maintenance of the City's water system.

The City then sought indemnification for the damages it paid from its liability insurer, ICSP . ICSP denied coverage based on a clause in the City's policy which exclud ed coverage for "any property damage arising out of land subsidence for any reason whatsoever." The City then sued ICSP to obtain coverage, but the trial court dismissed the case, and the Court of Appeal reached the same conclusion.

In sum, where a municipality possesses a liability policy with a similar land subsidence damage exclusion, the insurer will probably not cover land subsidence damage caused by the municipality. Read more about the parties' arguments and Court's reasoning here.

California Court of Appeal Refuses to Invalidate Local Rules Prohibiting Police Officers from Contacting Individuals for the Sole Purpose of Determining Immigration Status

On June 17, 2009, the California Court of Appeal, Second District held that federal law does not preempt municipal rules that prohibit police officers from contacting an individual for the sole purpose of determining the individual's immigration status. Specifically, the Court addressed the legality of Los Angeles Police Department Special Order 40, which governs interactions with illegal immigrants. SO40 prohibits LAPD officers from initiating police action with the sole objective of discovering the immigration status of an individual, and arresting individuals for illegal entry into the United States. In sum, the Court found that LAPD SO40 does not violate the Supremacy Clause of the U.S. Constitution, and that the rule is not preempted by federal statute. Read the text of the full opinion here.

Claim Presentation Requirements Apply to Contract Causes of Action Against Goverment Defendants

In December, the California Supreme Court held in City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007), Case No. S139237, that the requirements set forth in Government Code sections 905 and following, apply to breach of contract claims against any government defendant. The court held that contract claims fall within the plain meaning of the requirement that "all claims for money or damages" be presented to a local public agency (Government Code section 905) within one year and no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim has been presented to the public entity and has been acted upon or been rejected (Government Code sections 901, 911.2 and 945.4). The Court also adopted the practice of referring to the Claims Against Public Entities & Employees statutes as the "Government Claims Act" rather than the commonly used short title of "Tort Claims Act" in order to avoid any confusion engendered by the misnomer.

A Pitchess Affidavit May Be Filed Under Seal When Necessary to Protect the Attorney-Client and Work Product Privileges

In Garcia v. Superior Court, the California Supreme Court held that a trial court may permit a defendant to file a Pitchess affidavit under seal if the trial court determines that such a filing is necessary to protect the attorney-client and work product privileges. The Court recognized that nothing in the relevant Pitchess statutes precludes a filing under seal and the trial court has inherent discretion to allow documents to be filed under seal in order to protect against the disclosure of privileged information. However, the Court acknowledged that a trial court is not "'bound by defendant's naked claim of confidentiality'" and they must carefully weigh the competing concerns of a defendant's interest in protecting privileged information against opposing counsel's right to effectively challenge the discovery motion.

To that end, when a defendant wishes to file a Pitchess affidavit under seal the Court outlined a procedure which should be followed. First, defendant's counsel should give "proper and timely" notice of the privilege claim and provide the trial court with the affidavit the defense seeks to file under seal, along with a proposed redacted version. Second, the proposed redacted version should be served on opposing counsel. Third, the trial court must conduct an in camera hearing with defense counsel where counsel explains how the information proposed for redaction would risk disclosure of the privileged material if revealed and demonstrate why that information is required to support the motion. Fourth, opposing counsel should have an opportunity to submit questions for the trial court to ask in camera. Lastly, if the trial court concludes that parts of the affidavit do not pose a risk of revealing privileged information and the filing under seal is the only feasible way to protect the required information, the court may allow the affidavit to be filed under seal.

The Court also held that when a Pitchess affidavit is filed under seal an unredacted version may not be released to opposing counsel under a protective order because the mere disclosure of client confidences and attorney work product to a third party would violate the attorney-client and work product privileges. Thus, the Court disapproved that portion of the holding in City of Los Angeles v. Superior Court (Davenport)(96 Cal.App.4th 255 (2002)) which permitted this practice. Finally, the Court recognized that in the aftermath of Warrick v. Superior Court (35 Cal.4th 1011 (2005)), a litigant in the vast majority of cases will be able to obtain Pitchess discovery without revealing privileged information and filing under seal will usually be unnecessary.

County Ordinance Requiring Use of Local Public Entities Does Not Violate the Commerce Clause

In a ruling issued today, the U.S. Supreme Court found that county ordinances requiring that solid waste in two counties be processed at a publicly-owned transfer station did not discriminate against interstate commerce. The case, United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, arose from two separate U.S. Court of Appeals Second Circuit decisions in which the Court ruled that:

1) the counties' ordinances requiring that solid waste in the two counties be processed at a publicly-owned transfer station did not discriminate against interstate commerce (United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Auth., 261 F.3d 245 2d Cir. 2001); and

2) the counties' ordinances were valid under the Pike balancing test (United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Auth., 438 F.3d 150 2d Cir. 2005).

Oneida and Herkimer County ordinances required that the garbage generated by local households and businesses within the counties be delivered to one of several waste processing facilities owned by the Oneida-Herkimer Solid Waste Management Authority, a public corporation, thereby preventing the garbage from being processed at non-local facilities. The Authority charged a per-ton tipping fee for receiving waste, a fee that was apparently significantly higher than the fees charged on the open market elsewhere in the state. However, the counties did not exclude private commercial entities from other aspects of the local market for waste disposal: the ordinances expressly allowed any licensed private entity, whether local or non-local, to collect solid wastes from area businesses and households for delivery to the Authority's processing facilities. Through an open bidding process, the Authority periodically selected a private hauler to transport processed wastes/recyclables from its facilities for delivery to other locations.

Several solid waste management companies and an association representing their interests brought a Section 1983 action against the counties and the Authority, claiming that the ordinances regulating the collection, processing, transfer, and disposal of all solid waste within the counties violated the Commerce Clause. They specifically stated that as long as private entities were permitted to collect garbage from customers, they could not be required to deliver that waste to an in-state facility.

On appeal, the Supreme Court affirmed the Second Circuit's decisions and upheld the ordinances noting that this case presented "flow control ordinances quite similar to the one invalidated in [C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994)]. The difference being that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. Applying the Pike test, the Court first pointed out that, after years of discovery, no disparate impact on out-of-state, as opposed to in-state businesses, could be found regarding the ordinances.

California Cities Publishes Legal Advocacy Report

The League of California Cities published its litigation update on April 18, 2007. The report summarizes the cases reviewed by the legal advocacy committee, which engages in advocacy on behalf of California cities in the courts and in the legislature. Click on this link to review the full report: Litigation Update

For more information, please contact Ben Reyes or Steve Meyers

Court of Appeal Upholds Judgment in Favor of Public Entity Which Was Entitled to Immunity for Personal Injury and Wrongful Death Resulting From Police Vehicle High-Speed Chase

In Alcala v. City of Corcoran, the Court of Appeal was faced with a wrongful death action involving a bystander hit by a police vehicle during a high-speed chase. Jose Jesus Alcala died from complications resulting from injuries he suffered after being hit by a vehicle driven by police officers engaged in a high-speed pursuit of a murder suspect.

The Court agreed with the trial court's denial of plaintiff's motion for judgment on the pleadings, and affirmed the judgment in favor of defendants City of Corcoran and Corcoran Police Department. The Court so ruled because it found that defendants were one public entity and that they were entitled to immunity under Vehicle Code section 17004.7, which grants immunity to public entities/agencies that have adopted a written policy governing vehicular pursuits that clearly and specifically sets forth standards to guide officers in the field.

California Court of Appeal Holds that Claims Against Incorporated Charter School are Excused from Meeting the Claims Presentation Requirements for the Government Tort Claims Act

In Knapp v. Palisades Charter High School, the Court of Appeal reversed the trial court's grant of summary judgment in favor of the charter school, its teacher, and the chartering school district because the plaintiff failed to comply with the claim presentation requirements of the Government Tort Claims Act (Government Code section 900, et seq.).

Drawing from the precedent set in Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, the Court determined that as a nonprofit benefit corporation, the charter school, was not a "public entity" under the Tort Claims Act. Accordingly, the claim against the charter school was not required to meet the standards set forth in the Tort Claims Act.

Ninth Circuit Court of Appeals Denies Immunity in Civil Rights Action Filed by Parents of Teenager Shot and Killed by CHP Officer

In Adams v. Speers, eighteen year-old Alan Adams was pursued by numerous Merced County Sheriff's Office deputies, after running numerous stop signs. Paul Speers, a CHP officer, picked up the chase on his radio, and before his assignment ended picked up a friend, and without advising law enforcement vehicles of his identity or his intentions, pulled his car out and tried, but failed, to ram Adams' vehicle. Speers then continued on in the chase and proceeded to the front of the police procession. Finally, Speers crashed his car into Adam's vehicle and pushed it into an embankment. Officers surrounded Adams' vehicle, and one officer used his baton to break the driver's side window in an attempt to extract Adams from the car. Before the officer could act, Speers, without any warning, drew his service weapon and fired six rounds, killing Adams.

The deceased teenager's parents filed suit pursuant to 42 U.S.C section 1983, the Fourth Amendment to the Constitution, and wrongful death. Per the standard set forth in the United States Supreme Court case, Saucier v. Katz, the district court first determined that if all facts were viewed in favor of the Adamses, Speers had violated the Fourth Amendment. The court stated that it was unreasonable for a police officer to seize an unarmed, nondangerous suspect. The court determined that per the second Saucier step the actions of Speers were no reasonable, therefore the district court denied him qualified immunity. The Ninth Circuit found the district court's judgment was "impeccable," and therefore upheld the judgment in its entirety.

California Supreme Court Reviewing Civil Rights Strict Liability Case

California cities and adult use operators alike are monitoring Manta Management Corporation v. City of San Bernardino (Case No. S144492) currently being reviewed by the California Supreme Court. According to the City of San Bernardino, the case will decide whether "cities will have unlimited strict liability any time a preliminary injunction is not sustained at trial based on federal constitutional grounds." The Court of Appeal upheld a verdict against the city awarding $1.4 million in lost-profit damages for closing a strip club with a preliminary injunction in violation the owner’s First Amendment rights. The City argued that seeking redress through the courts is not a violation of the First Amendment, so no civil rights damages should have been awarded. The Court of Appeal was unpersuaded, but the high court could reach a different conclusion. The case may have far-reaching consequences for California public agencies like Cities and Counties depending upon how the Supreme Court rules.

Briefing has been completed and oral argument will likely be schedule within a year. You can view current information on the case docket, and sign up for email notifications about the case, by clicking here

Ninth Circuit Court of Appeals Reverses Standard Used When Evaluating Retaliatory Search Claims

In Skoog v. Clackamas County, the Ninth Circuit Court of Appeals held that the absence of probable cause is not an element of a retaliatory search claim brought under the First Amendment of the U.S. Constitution. Thus, a retaliatory search claim can proceed regardless of whether or not probable cause supported the search.

Prior to this decision, Ninth Circuit precedent provided that a retaliatory search claim would fail if the defendants could establish probable cause for the search. That is, courts would disregard an officers' subjective intent if probable cause existed.

To view this opinion, click here.

California Court of Appeal Holds That Officer Who Did Not Facilitate Wrongful Conduct For Which He Was Unaware Was Not Liable for Section 1983 Violation

Trinidad Macias appeals from summary judgment entered against him on his complaint for violation of his civil rights pursuant to 42 U.S.C. section 1983. The complaint alleged that a number of deputies of the Los Angeles County Sheriff's Department executed a search warrant at Macias' home in an unreasonable manner. The trial court granted summary judgment on the ground that Macias failed to introduce evidence showing there was a violation of a constitutional right. The Court of Appeal reversed the ruling of summary judgment as to some of the officers and upheld the judgment as to other officers who were not "integral participants" in the violation of Macias' constitutional rights.

The Court explained that in order for an officer to be liable for the violation of Macias' constitutional rights, that officer must have been either personally involved in that violation or an "integral participant" in the conduct giving rise to the violation. (Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002)("[e]ither integral participation or personal involvement was required before a jury could find officers liable.") The Court further noted that the federal case law discussing what constitutes integral participation is not uniform. Some courts have held that an integral participant must be aware of the unlawful conduct or facilitate the conduct itself, whereas other courts have taken an even broader view and have held that every officer who participated in the illegal search, irrespective of whether or not all of the officers were aware of the search. The Court found the narrow approach more persuasive and held that there was no basis for imposing liability on officers for unplanned conduct that they did not engage in or facilitate themselves, and of which they were not even aware.

To view the entire opinion, click here.

California Court of Appeal rules that Family Code sections limiting civil marriage to opposite sex couples are not unconstitutional

On October 5, 2006, the Court of Appeal ruled in In re Marriage Cases, that Family Code sections limiting availability to civil marriage to opposite sex couples are not unconstitutional. The Court's decision stressed that the Legislature has passed legislation, specifically, Family Code section 297, et seq., providing substantially all the rights, responsibilities, benefits and protections of marriage to same-sex couples who register as domestic partners.

In addition, the Court concluded that California's historical definition of marriage did not deprive individuals of a  fundamental right or discriminate against a suspect class; therefore, the Court applied rational basis review. That is, the Court analyzed the marriage statutes to determine whether the opposite-sex requirement is rationally related to a legitimate government interest. Concluding that great deference should be afforded to the Legislature, the Court stated that the marriage statutes are constitutional. In so concluding, the Court noted that the time may come when California chooses to expand the definition of marriage to encompass same-sex unions, but that such change should come from democratic processes, not from the judiciary.

To review the full opinion, click here

Ninth Circuit Upholds District Court’s Grant of Summary Judgment in Favor of Detectives in 42 U.S.C § 1983 Action

In a recent Ninth Circuit opinion, Burrell v. McIlroy, et al., 06 C.D.O.S. 8868 (September 20, 2006), plaintiff Stephen Burrell ("Burrell")) appeals the district court's grant of summary judgment on behalf of various detectives of the Las Vegas Metropolitan Police Department in this 42 U.S.C. § 1983 action. The Ninth Circuit affirmed the district court’s grant of summary judgment. 42 U.S.C. § 1983, is an "enabling" statute. That is, it is the vehicle by which a plaintiff may assert the violation of a constitutional right.

To read the full opinion of the Court, click here.

Court Denies Requests for Brady Advice

In an article entitled "Court nixes requests for Brady advice," by Julie O'Shea, Recorder Staff Writer, dated September 6, 2006, she writes that Santa Clara County Judge James Emerson issued a standing order last week banning deputies in that office from filing Brady motions with the court. The Judge stated that, "[t]he sole responsibility under law for collection and disclosure of Brady material lies with the People." Under Brady, prosecutors are required to turn over to the defense, evidence that could be exculpatory. That can often include information about misconduct claims filed against the arresting or investigating officers.

Over the past four years, county prosecutors have filed motions asking the court to decide whether the District Attorney was required to release "possible Brady" discovery including police personnel files that could be used for impeachment purposes to the defense. Apparently, this began to irritate some judges who complained that they were being forced to do the District Attorney's job.

The San Jose City Attorney's Office previously warned that it would take "proactive measures to prevent needless embarrassment, harassment, and unwarranted invasions of privacy"  of its law enforcement officers. City Attorney J. Richard "Rick: Doyle expressed disappointment Wednesday. He pointed out that Judge Emerson stated in his order that "in extraordinary cases" discovery issues can be addressed to the supervising judge of the criminal department --in writing. "There is going to be a lot of extraordinary cases," Doyle noted. "The court is still going to have to address" this issue.

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