Third Time Is The Charm: CalPERS May Appeal City Of San Bernardino’s Bankruptcy Eligibility To Ninth Circuit

A federal judge has ruled that CalPERS may appeal to the Ninth Circuit a bankruptcy judge’s decision allowing the City of San Bernardino’s petition for Chapter 9 bankruptcy.  As we previously reported here, U.S. Bankruptcy Judge Meredith Jury ruled in August that San Bernardino is eligible for Chapter 9 bankruptcy protection.

Public Entity Appellate Victory in Roadway Flooding Case

On August 24, 2011, the California Court of Appeal found in favor of San Bernardino County in an inverse condemnation case based upon flooding caused by water run-off from a County road.  The plaintiffs' properties had been damaged during two separate storms, and the plaintiffs contended that an unimproved County road caused the damage in one storm, and K-rail placed by the County on an improved portion of the same road caused damage during the other storm.  In affirming the trial court's findings in favor of the County, the Court of Appeal confirmed th

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. 

The Second Appellate District Provides Guidance Regarding an Employer’s Reasonable-Accommodation Duty

The Second Appellate District's recent case of Cuiellette v. City of Los Angeles (2011) __ Cal.Rptr.3d ___, 2011 WL 1522390, highlights two critical issues that employers must consider when conducting a reasonable-accommodation analysis under the Fair Employment and Housing Act ("FEHA").

First, employers should not refuse to accommodate an injured worker based solely on a 100% permanent total disability rating in a related workers' compensation proceeding. Instead, employers must undertake an independent analysis of an employee's medical restrictions before concluding that an employee cannot be accommodated.

Second, employers must consider their informal policies when determining whether an injured employer can be accommodated. To the extent an employer has an established practice of maintaining permanent light duty positions for disabled employees, the employer must consider whether an injured employee is qualified for those light duty positions.

In Cuiellette v. Los Angeles, the City of Los Angeles sent an injured police officer home after learning that the officer received a 100% permanent disability rating in his workers' compensation proceeding. The officer subsequently filed a FEHA lawsuit and, after a jury trial, was awarded a $1.5 million judgment against the City.

Go here to read more about this case.

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.

Appellate Court Finds that Inclusionary Housing Requirement is Not an Exaction, Therefore Challenge is Time-Barred

Trinity Park v. City of Sunnyvale

In a decision supportive of local inclusionary housing ordinances, the Sixth District Court of Appeal ruled that a subdivider's challenge to a development condition requiring below market rate housing was not governed by the AB 1600 Mitigation Fee Act statute of limitations. The case is primarily analyzed as a statute of limitations issue, but in the course of the analysis, the court finds that Sunnyvale's affordable housing requirements were imposed as land use restrictions, and were not subject to AB 1600, the Mitigation Fee Act. Accordingly, the applicable limitations period was 90 days based on the Subdivision Map Act and Government Code section 65009(c)(1)(E). Since the developer did not file its challenge within the 90 day limitations period, the complaint was time-barred (Trinity Park v. City of Sunnyvale, ___ Cal.App.4th ___, March 24, 2011).

This is a good decision for local inclusionary housing ordinances. The court's ruling that the inclusionary requirements were not subject to the Mitigation Fee Act eliminates the Act as a potential source of challenge for similar local ordinances that are not imposed to defray the costs of public facilities for a development project pursuant to section 66020. The decision does not insulate inclusionary ordinances from other sources of challenge, but it does limit the potential for challenge based on the Mitigation Fee Act definition of an exaction. Apart from the inclusionary housing issue, the court reminds land use practitioners of the general rule that "the applicable statute of limitations depends on the nature of the cause of action...". Especially in today's complex entitlement processes where there may be multiple types and layers of land use approvals, there may also be the potential for multiple statutes of limitations. Determining the correct statute(s) of limitations requires a careful examination of the nature of the approval and the particular action being challenged.

Go here for the full analysis of Trinity Park v. City of Sunnyvale.

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.

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.

Court Finds Statutes Favoring Speech Related To Labor Disputes Unconstitutional

Given the California appellate court's recent ruling in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 (January 19, 2010) 2010 DJDAR 11199, police departments may now receive increased requests to remove peaceful picketers in labor disputes from private property. While this case may provide authority for police officers to remove such picketers from private property, cities should seek individualized legal advice on this issue when altering current policies and procedures. The California appellate court specifically found that a Ralphs-owned grocery store was a private forum not subject to heightened First Amendment scrutiny, concluding that labor union picketers were trespassing on private property when they violated Ralphs's protest restrictions. In reaching this decision, the appellate court ruled that statutes that protect or favor labor union speech over other forms of speech violated the First and Fourteenth Amendments of the Constitution.

The Court started with a public forum evaluation under Pruneyard and later case law. Even though the Ralphs-owned store is part of a larger shopping center, the entrance and apron were not "designed and presented to the public as public meeting places," nor did these areas "act as the functional equivalent of a traditional public forum." The court found that the setting of the store within a shopping center with a number of other retailers and restaurants, some of which provide outdoor seating, was similar to other appellate court decisions holding that the entrance areas and aprons to stand-alone stores in shopping centers are private fora. Significantly, the court also explained that as a private forum, Ralphs could limit or prohibit certain speech even if they selectively allowed other groups to collect signatures or donations for other causes.

The trial court's refusal to grant injunctive relief was grounded in the Moscone Act (Code of Civil Procedure § 527.3) and Labor Code § 1138.1, which limits a court's ability to grant injunctive relief in cases involving labor disputes. Sacramento police officers were unwilling to remove the peaceful picketers from Ralph's private property presumably because of the Moscone Act and Labor Code § 1138.1. Relying on Supreme Court precedent that found preferential treatment of speech regarding labor disputes to be unconstitutional content-based discrimination under the First and Fourteenth Amendments, the appellate court declared both the Moscone Act and Labor Code § 1138.1 unconstitutional.

This case highlights the fact specific inquiry required to determine whether retailers within a private shopping center qualify as a public forum. The case notably explains that if the forum is private, the private entity may selectively enforce its no solicitation policies. Additionally, and quite significantly, the case holds that parties seeking injunctive or other equitable relief from labor union demonstrations will no longer be required to meet the heightened requirements of the Moscone Act and Labor Code § 1138.1. The impact of this ruling is likely to be that police departments will receive more frequent calls to remove peaceful picketers in labor disputes from private property. Given, however, the many nuances of First Amendment jurisprudence and that this decision is an appellate court decision, (subject to being disagreed with by a different appellate court on the same issue in a different case or subject to being overruled by the California Supreme Court ) police departments would be wise to seek specific legal advice on this issue before changing current policies regarding the removal of peaceful picketers in labor disputes from private property.

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.

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.

California Supreme Court Holds Secret Ballots Unnecessary for Approving Property-Related Fees and Assessments

Proposition 218 limits local governments’ ability to raise or to impose new assessments or property-related fees and charges, requiring them to submit new or increased assessments or fees to approval by affected property owners, or by the whole electorate. The California Supreme Court unanimously ruled yesterday that, in such proceedings, secret ballots are not required. (Greene v. Marin County Flood Control & Water Conservation Dist.)

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 .

Paper for Plastic? California Supreme Court to Decide If Ban on Plastic Bags Requires Environmental Impact Review (EIR)

The California Supreme Court decided last week to review a Court of Appeal opinion that upheld a claim, brought by a group of plastic-bag manufacturers, that a city was required to prepare an EIR before enacting an ordinance to ban retailers from using plastic bags. (Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720.) The Supreme Court will review both whether an EIR was required, and whether the manufacturers’ group had legal standing to challenge the ordinance for lack of an EIR.

The Court of Appeal had split 2-1 on whether an EIR was required. ( Download Save the Plastic Bag opinion.) The majority stressed the “low threshold” for requiring a city to prepare an EIR: if there’s a fair argument based on substantial evidence that any part of a project may significantly harm the environment, then an EIR is required—even if the city could find that the project’s overall effect is beneficial. The majority found that several studies in the record support a fair argument that the ban will raise paper bag use, and that paper bags cause more environmental harm than plastic. (Producing and distributing paper bags takes more fossil fuel and creates more nasty byproducts, among other problems, according to these reports.) The dissent argued that any effect would not be “significant,” because Manhattan Beach is one small city, and that the ordinance was covered by a categorical exemption from CEQA for projects to protect the environment.

The Court of Appeal noted that, since the trial court ruling requiring an EIR, the City of Palo Alto had entered a settlement with the plastic bag group agreeing not to enact a ban until it completed an EIR; San Jose had announced that it will prepare an EIR for a single-use-bag ordinance, and Green Cities California is preparing a Master Environmental Assessment (MEA) for local governments seeking to restrict single-use plastic bags. (See the MEA Scope of Work here.)

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.

CEQA Analyses of New Projects and Projects that Significantly Expand Existing Operations Need to Use Actual Physical Conditions as Environmental Baseline, Not Maximum Permitted Conditions

In Communities for a Better Environment v. South Coast Air Quality Management District, the California Supreme Court held that the California Environmental Quality Act (Pub. Resources Code, §§ 21000, et seq. (“CEQA”) requires an agency analyzing the “worst case” emission impacts of a new refinery project to analyze emission impacts of a new refinery project against the existing facility’s actual current emissions, and not with the facility’s maximum permitted emission levels. The Court reasoned that the refinery project differed from proposals in past cases that simply modified a previously analyzed project or continued operation without significant expansion. The Court’s decision is an important clarification of CEQA baseline principles. Projects that involve more than a mere modification of a previously analyzed project, or involve significant expansion of existing operations, need to be analyzed against actual physical conditions, not maximum permitted conditions.

Defendant South Coast Air Quality Management District (“District”) had prepared a negative declaration analyzing the impacts of ConocoPhillips’s proposal for an ultra-low-sulfur diesel fuel project, and concluded that the project would not adversely affect the environment. The District acknowledged that, in a “worst-case scenario,” the project would create hundreds of pounds of additional nitrogen oxide (NOx) emissions per day (in excess of the District’s 55 pounds per day standard). However the District did not consider the emissions to be part of the project because the emissions did not exceed the maximum levels allowed under existing permits. The Court found this to be an improper application of the general rule that the “physical environmental conditions,” as they exist at the time environmental analysis begins, “will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” (CEQA Guidelines, § 15125(a).) Accordingly, the Court concluded that it was inconsistent with established CEQA principles to compare the proposed project to what could lawfully happen under the existing permits, rather than to what was actually happening.

The Supreme Court distinguished the matter from a line of cases that relied on maximum operational levels allowed under existing permits. In each case, the Court noted, the subject project was “merely a modification of a previously analyzed project and hence requiring only limited CEQA review ... or as merely the continued operation of an existing facility without significant expansion of use and hence exempt from CEQA review.” The same could not be said for the ultra-low-sulfur diesel fuel project, as it was adding a new refinery to the facility and would require increase operation of other equipment. Finally, the Court concluded that the record—specifically the data in the negative declaration—supported a fair argument that the project will have a significant adverse effect on the environment. The Court thus affirmed the Court of Appeal’s direction to prepare an EIR.

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

U.S. Supreme Court to Determine City Employee's Right to Privacy in Text Messages Sent on City Equipment

For public employers, City of Ontario v. Quon raises issues regarding a public employee's right to privacy in electronic communications sent on a city's equipment . The Supreme Court's decision to hear the case follows the Ninth Circuit's ruling that a c ity's review of text messages sent and received by an employee on his city-issued pager violated the employee's Fourth Amendment right to privacy .

Court of Appeal Requests Further Briefing in Medical Marijuana Dispensaries Case

The California Court of Appeal has requested additional briefing in Qualified Patients Association v. City of Anaheim. At issue in this case is the validity of City of Anaheim's ordinance banning medical marijuana dispensaries.

The appeal arises out of the trial court's ruling sustaining the City's demurrer and holding that the ordinance is not preempted by California's Compassionate Use Act and Medical Marijuana Program Act. The Court's invitation for further briefing centers on Health and Safety Code Section 11570, which bars as nuisance the use of any premises for unlawful distribution, storage, or manufacture of controlled substances, including marijuana. Read more here.

California Supreme Court denies request for review, depublication of appellate decision regarding application of inclusionary housing ordinance to rental developments

The California Supreme Court denied a petition for review and depublication of the Second District's decision in Palmer/Sixth Street Properties v. City of Los Angeles. The appellate court decision was significant in holding that Los Angeles was preempted, by a provision of the state's Costa-Hawkins Act, from enforcing its inclusionary housing ordinance against a development of rental apartments, The state provision in question, Civil Code, Section 1954.53(a), authorizes landlords to "establish the initial rental rate for a dwelling or unit." The appellate court had found that the local requirement to reserve a specified percentage of the rental units as low income units, conflicted with the state provision. The local ordinance was not saved by its "in-lieu" fee, which the appellate court found to be "inextricably intertwined with the invalid portion" of the ordinance.

Court of Appeal Revokes City's Anti-SLAPP Protection in Case Where Plaintiff Claimed First Amendment Protections

The California Court of Appeal, Sixth Appellate District, recently reversed a trial court judgment entered in favor of the City of Morgan Hill pursuant to California's anti - SLAPP statute (Code of Civil Procedure section 425.16.) SLAPP is an acronym for "strategic lawsuit against public participation," and the anti-SLAPP statute is designed to allow a defendant to gain early dismissal of a lawsuit that a court determines is designed to chill the exercise of First Amend ment rights.

In the case, Tichinin v. City of Morgan Hill, the Morgan Hill City Council adopted a resolution that condemned a local attorney for hiring a private investigator to conduct surveillance of the City Manager and then denying that he had done so. In response to the resolution, the plaintiff filed an action against the City, alleging a violation of his constitutional rights. From the beginning, the case garnered media attention, involving as it did rumors of an affair between city employees and private surveillance of public officials.

In reversing the trial court's judgment in favor the City under the anti-SLAPP statute, the Court of Appeal acknowledged that the plaintiff's lawsuit was based on acts by the City that qualify for protection under the anti-SLAPP statute. However, the Court also concluded that the plaintiff had made a prima facie showing that he himself was engaged in conduct protected by the First Amendment, that the City took an adverse action in response to his conduct with the intent to retaliate against him, and that the City's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct.

Read the Court's opinion here and check out the San Francisco Chronicle's summary of the interesting circumstances of the case here.

California Supreme Court Upholds Existing Standards for Public Expenditures on Local Ballot Measures

The Supreme Court's recent decision in Vargas v. City of Salinas reaffirms the Court's holding in Stanson v. Mott (1976) 17 Cal.3d 206, and maintains existing limitations on the expenditure of public funds for materials and activities related to ballot measures. Although the Court rejected the adoption of a proposed bright-line test that would have permitted public expenditures for all communications that were not express advocacy, it provided some useful new general guidance beyond that in Stanson. It also provided helpful specific examples both of acceptable publicly funded communications--by approving the specific expenditures by the City of Salinas at issue in the lawsuit--and of unacceptable communications --by expressly disapproving communications from other cases and from a recent California election. Read more.

Court of Appeal Finds Binding Interest Arbitration Statute Unconstitutional

On April 24, 2009, the First Appellate District ruled in Sonoma County v. Superior Court (Sonoma County Law Enforcement Association) that SB440, a labor negotiations interest arbitration statute applicable to public safety unions, violated both Article XI, Section 1(b) and Article XI, Section 11(a) of the California Constitution. This was the first Court of Appeal decision to rule on the constitutionality of SB440 and is an important decision regarding how California public agencies may resolve negotiation impasses with their public safety unions.

Ninth Circuit Narrows Federal Telecommunications Act's Preemption Standard for Local Regulation

Overturning recent decisions regarding local regulation of telecommunication facilities, the Ninth Circuit, in Sprint Telephony PCS, L.P. v. County of San Diego, recently reversed course in finding that enforcement of San Diego's wireless telecommunications ordinance was not preempted by the federal Telecommunications Act of 1996. Section 253(a) of the Telecommunications Act provides that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate telecommunications service." Similarly, § 332(c)(7) of the Act states that local regulations: "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." In 2003, the County of San Diego enacted a Wireless Telecommunications Facilities Ordinance, which established permit requirements and additional restrictions on the placement and construction of wireless telecommunication facilities. Sprint challenged the County's Ordinance arguing that it violated § 253(a) of the Act because the Ordinance prohibited, or had the effect of prohibiting, the provision of wireless telecommunication services. The County argued that § 253(a) was inapplicable because § 332(c)(7) of the Act was the exclusive authority on wireless regulations.

California Court of Appeal Holds That City of West Hollywood's Ordinance Banning Mobile Billboard Advertising Applies to Commercial and Noncommercial Speech

In Showing Animals Respect and Kindness et al., (SHARK) v. City of West Hollywood, the California Court of Appeal for the Second District upheld a City of West Hollywood ("City") ordinance banning all "mobile billboard advertising" of any content, at any time, and on any street. The Court's opinion addresses whether the term "advertising"--as used in the ordinance--covers both commercial and noncommercial speech.

Plaintiff SHARK is a nonprofit organization that campaigns against cruelty to animals. SHARK operates a truck called the "Tiger Truck" which is equipped with four one-hundred inch video screens mounted on the front, back, and sides. The screens show animals being injured or killed by humans and below the screens are LED signs proclaiming messages protesting animal cruelty. The "Tiger Truck" also broadcasts the sounds of animals being abused.

The City adopted an ordinance making it unlawful for any person to conduct any mobile billboard advertising upon any street or other public place in the City. Under the ordinance, mobile billboard advertising includes any vehicle which carries, conveys, pulls, or transports any sign or billboard for the primary purpose of advertising. The ordinance was adopted in order to promote the safe movement of vehicular traffic, to reduce air pollution, and to improve the aesthetic appearance of the City.

The City agreed that SHARK was engaged in noncommercial speech. However, the City argued that the term "advertising" applies to both commercial and noncommercial speech. SHARK contended that the term "advertising" applies only to commercial speech and, consequently, the ordinance was not applicable to billboards conveying noncommercial speech. The Court held that the term "advertise" is not limited to commercial speech and noncommercial speech, such as messages which endorse political candidates, social causes, and religious beliefs, may also fall within the term "advertise" under the ordinance. Having determined that the ordinance applies to both commercial and noncommercial speech, the Court concluded that the ordinance was content neutral, served a significant government interest, was narrowly tailored, and left open alternative channels for communication. The dissenting opinion, however, interpreted the ban on advertising to pertain to commercial speech only and found that the definition of "advertising" in the ordinance was overbroad and ambiguous.

First Appellate District Rejects City’s Lease of Public Street Located on Reclaimed Tidelands for Private Use Without Notice and Comment

In Zack’s Inc. v. City of Sausalito, First Appellate District Case Nos. A118244, A118723 (August 11, 2008), the Court of Appeal for the First Appellate District reversed a trial court's judgment, siding with the Plaintiff in a nuisance challenge to Sausalito’s practice of leasing a section of a public street located on reclaimed tidelands for use as a private boat storage facility. The plaintiff had alleged that the storage of boats constituted a nuisance per se, as it interfered with traffic and parking, and effectively prevented the use of the plaintiff’s warehouse as a restaurant.

Court Holds Prop 59 Does Not Abrogate the Common Law Mental Processes Principle

In Sutter's Place v. Superior Court of Santa Clara County, the Court of Appeals for the Sixth District upheld a trial court discovery order protecting specified documents from disclosure on the ground that discovery would violate the common law mental processes principle which precludes judicial inquiry into the motivation or mental processes of legislators in enacting legislation. Petitioner Sutter's Place ("Petitioner") sought discovery of documents reflecting the motives and thoughts process of the City of San Jose Mayor and/or City Council relating to the adoption of an ordinance which Petitioner was challenging. Petitioner's challenged the trial court's order denying discovery of specified documents on the grounds that Proposition 59 abrogated the common law mental processes principle.

Proposition 59 (California Constitution, article I, section 3) amended the California Constitution to include the public right to access public records. It is considered by some to be the constitutionalization of the California Public Records Act ("CPRA"). The Court found that under the CPRA, public records to which the mental processes principle applies are exempt from disclosure in accordance with California Government Code Section 6254(k) which exempts from disclosure public records whose disclosure is prohibited pursuant to federal or state law, including the common law and constitutional separation-of-powers principles, such as the mental processes principle. The Court held that there is no inherent inconsistency between the application of Proposition 59 and the mental processes principle which precludes their concurrent operation and there is no evidence of an intent by the voters to supersede, override, or alter the operation of the mental processes principle under Proposition 59.

California Court of Appeal Holds that Prime Contractor Is Not Liable to Subcontractor Under the Subletting and Subcontracting Fair Practices Act for Failing to Grant a Subcontract where Subsequent Change Order Eliminates the Subcontractor's Work

In Affholder, Inc. v. Mitchell Engineering, Inc. (App. 1 Dist. 2007) 153 Cal.App.4th 510, the First Appellate District Court held that a prime contractor is not liable under the Subletting and Subcontracting Fair Practices Act (California Public Contract Code Section 4100 et sq.) for failing to grant a subcontract to the subcontractor originally listed in a public agency project bid, which was accepted by the public agency, where the public agency subsequently granted a change order that effectively deleted the work the subcontractor bid to perform and added new work which the subcontractor did not bid and was not listed to perform. The court noted that if a change order calls for the performance of new work that can reasonably be construed as outside the scope of the originally specified work, then Section 4107(c) of the Public Contract Code permits the prime contractor to subcontract out that work even though no subcontractor was initially specified in the bid.

State Appellate Court Holds that Police Department Must Return Lawfully Possessed Medical Marijuana

In City of Garden Grove v. Superior Court, the Court of Appeals for the Fourth Appellate District, Division Three, held that the City of Garden Grove ("City") must return lawfully possessed medical marijuana that was seized by the City's Police Department during a traffic stop after Defendant Felix Kha failed to yield at a red light. Defendant Kha was cited for running a red light and unlawfully possessing less than one ounce of marijuana while driving. Defendant Kha pleaded guilty to the traffic violation, but presented evidence to the trial court showing that he was authorized to use medical marijuana to treat an undisclosed "serious medical condition."  The drug charge was subsequently dismissed by the prosecutor, however, the prosecutor opposed Kha's request to have the seized marijuana returned to him.

For purposes of state law, the Court found that Kha was in lawful possession of the marijuana that was found in his car. Therefore, California Health and Safety Code Section 11473.5(a) mandates that the marijuana not be destroyed by order of the court. The Court also found that the City's police department would not be aiding and abetting a violation of federal law if its officers return Kha's marijuana to him because to be liable as an aider and abettor, a person must associate himself with the criminal venture and participate in it as in something that he wishes to bring about and seek by his actions to make it succeed. Although the Court recognized that Kha's possession of the marijuana is a violation of federal law, the Court found that the City has no intention to facilitate such a breach. The Court also found that the City's Police Department should be protected from federal liability if they return Kha's marijuana to him in compliance with a court order because federal law makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties.

The Court further held that principles of due process induce the return of lawfully possessed medical marijuana seized by police officers, although neither the Compassionate Use Act ("CUA") nor the Medical Marijuana Program ("MMP") expressly require it. The Court reasoned that possession of one's property is a substantive right and the retention of property without pending criminal action, violates the property owner's due process rights.

The City also argued that the Control Substances Act ("CSA") preempts the CUA and the MMP to the extent that California law authorizes the return of medical marijuana to qualified users. The Court rejected the City's contention by narrowly holding that "federal supremacy principles do not prohibit the return of marijuana to qualified user whose possession of the drug is legally sanctioned under the state law."  The Court found that Congress did not intent to preempt the states on the issue of drug regulation as evidenced by the statement in the CSA that federal drug laws do not generally preempt state law. The Court also found that the state law does not interfere with the federal government's authority to criminalize marijuana. As the Court explained, the purpose of the CSA is to combat recreational drug abuse and curb drug trafficking, while the purpose of the CUA is to provide access to and to regulate marijuana for medicinal use. The Court reasoned that Congress only intended to bar physicians from using their prescription-writing powers as means of engaging in illicit drug dealing and trafficking as conventionally understood and did not intend to regulate the practice of medicine generally. In invoking the preemption doctrine, the City did not challenge the constitutionality of the state law nor the right of Californians to access marijuana for medicinal purposes. Consequently, the Court did not address these issues.

Ellin Davtyan assisted in the writing of this post.

Ninth Circuit Court of Appeals Upholds County of San Diego Ordinance Regulating the Location of Adult Entertainment Businesses

In Tollis Inc. v. County of San Diego, the Ninth Circuit Court of Appeals upheld a zoning ordinance adopted by the County of San Diego ("County") restricting the location of adult entertainment business to selected industrial zones. The ordinance was adopted to minimize the negative secondary effects associated with adult entertainment businesses.

Appellants challenged the ordinance alleging that the County did not provide sufficient evidence to show how the sexual and pornographic speech associated with the regulations will not be impacted by them. The Court of Appeals rejected this argument and held that the County’s reliance on 68 suitable relocation sites for adult entertainment businesses in industrial zones—on which eight to 10 could operate simultaneously—was adequate for the County to assume that, given the demand for sexual and pornographic speech, the quantity and accessibility of the speech would not be substantially diminished.

Appellants also argued that because the industrial zones identified by the County were not expressly zoned for commercial use they had not been afforded a reasonable opportunity to relocate. Again, the Court of Appeals rejected this argument, holding that the issue is not whether an industrial zone permits commercial uses within its boundaries; rather, the issue is whether the relocation sites identified within the industrial zone are reasonably accessible to the public and have adequate infrastructure.

Court Denies Standing Under CEQA for Sole Purpose of Furthering Petitioner’s Commercial and Competitive Interests

In Regency Outdoor Advertising v. City of West Hollywood,  the court of appeal held that Regency Outdoor Advertising (“Regency”) did not have standing to assert a CEQA challenge to amendments to the city’s Sunset Boulevard Specific Plan because Regency could only demonstrate commercial and competitive interests in the litigation. The appellate court, affirming the trial court’s conclusion, found that Regency lacked standing because it had not suffered any environmental injury. The court determined that Regency challenged the amendment regarding permissible outdoor wall signs, simply to “promote its commercial or competitive interests.” Relying on Waste Management of Alameda County v. County of Alameda (2000) 79 Cal.App.4th 1223, the court determined that CEQA does not create standing to pursue these interests. CEQA petitioners must demonstrate an environmental injury over and above the injury to the general public. Regency could demonstrate no such injury here.

U.S. Supreme Court Restricts Endangered Species Act, Section 7, Consultation Requirements to “Discretionary” Actions of Federal Agencies

The U.S. Supreme Court's decision in National Association of Homebuilders v. Defenders of Wildlife, addressed "a problem of conflicting 'shalls.'" Clean Water Act § 402(b) provides that the EPA “shall approve” transfer of National Pollution Discharge Elimination System (NPDES) permitting authority to a state upon application and a showing that the state has met nine specified criteria. Section 7(a)(2) of the Endangered Species Act requires federal agencies to consult with other designated agencies (such as the Fish and Wildlife Service) to “insure” that a proposed agency action is unlikely to jeopardize an endangered or threatened species. Thus, the case presented a question as to whether EPA, in reviewing an application for the transfer of permitting authority which met the nine specified criteria, must also consult with designated agencies regarding the transfer’s effect on endangered and threatened species.

The Supreme Court interpreted the language of CWA § 402(b) as establishing “a ceiling as well as a floor.” A literal interpretation of § 7(a)(2) “raises that floor and alters § 402(b)’s statutory command.” The Court resolved the conflict by looking to the implementing regulations for § 7(a)(2) promulgated by the Fish and Wildlife Service and National Marine Fisheries Service. The Court noted that the regulations stated that § 7 applied to “all actions in which there is discretionary Federal involvement or control” (emphasis added by Court). The Court concluded that this interpretation of the statute meant that the consultation requirements would not apply to “actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred.”

Justice Stevens filed a dissent, in which he argued that in TVA v. Hill, 437 U.S. 153 (1978), the Supreme Court had found that protection of endangered species was to be given “priority over the primary missions of federal agencies,” and that § 7 “admits of no exception.” In any case, the dissent argued that a determination to transfer authority under the CWA was the type of discretionary action to which § 7 applied. The majority’s decision, argued Justice Stevens, “fails to give the [ESA] its intended effect.”

California Supreme Court Finds Adoption of Airport Land Use Plan That Incorporates Existing General Plan Development Standards Exempt from CEQA Review

A unanimous California Supreme Court held in Muzzy Ranch Co. v. Solano County Airport Land Use Commission, that the Solano County Airport Land Use Commission’s adoption of an airport land use plan was exempt from review under CEQA. The Commission had first determined that the approval of the Travis Air Force Base Land Use Compatibility Plan (“TALUP”) was not a project subject to CEQA, but then, filed a notice of exemption based on the “common sense” exemption to CEQA, which states that the approval had “[n]o possibility of significant effect on the environment.”  Muzzy Ranch challenged this decision, alleging that the Commission should have considered the impacts that would result from “displaced housing” caused by the TALUP.

The Court first held that the adoption of an airport land use compatibility plan was analogous to the enactment or amendment of a general plan and, therefore, was a project subject to CEQA. The Court, however, accepted the Commission’s argument that the adoption of the TALUP was exempt under the common sense exemption. The Court ultimately determined that because the TALUP simply incorporated existing general plan and zoning law restrictions on residential housing density, any displacement of housing would have already occurred.

California Supreme Court Clarifies Constitutionality of Zoning Impacts on Economic Competition

In Hernandez v. City of Hanford, the California Supreme Court reversed the appellate court’s decision, and held that the City of Hanford’s zoning ordinance prohibiting furniture sales in the City’s Planned Commercial (PC) district, with a limited exception for large department stores, did not violate the State or Federal Equal Protection Clause. The Court clarified language in a line of cases beginning with Van Sicklen v. Browne (1971) 15 Cal.App.3d 122, which addressed the impacts of local zoning regulation on economic competition. The Court agreed with the appellate court that a general prohibition on furniture sales within a particular zoning district was not unconstitutional. The Court reversed the appellate decision, however, with respect to the ordinance's limited exception, allowing for furniture sales by large department stores. The Court concluded that the exception was rationally related to a legitimate public purpose that had been overlooked by the appellate court: the objective of attracting and retaining large department stores in the City's PC district. Therefore, the City's disparate treatment of department stores and other retail establishments within the PC district was not unconstitutional.

Court of Appeals Upholds City's Right to Audit Hotel Records

The First Appellate District of the Court of Appeals recently upheld the constitutionality of the City of Cloverdale's transient occupancy tax ("TOT") ordinance and its right to obtain business records to conduct an audit pursuant to the ordinance. The TOT ordinance requires hotel operators to collect an occupancy tax from all hotel guests who occupy a hotel room within the City for fewer than thirty days.

Court of Appeal Holds State Law Preempts Local Nuisance Vehicle Abatement Ordinance

In Hernandez v. City of Sacramento, the Third Appellate District addressed the complex field of civil asset forfeiture laws. Civil asset forfeiture laws were first instituted by the federal government in the 1970s (21 U.S.C. 881), and then gained popularity in California in the 1980s (Health & Safety Code ("H&S Code") section 11469, et seq.). More recently these laws spread to municipalities throughout the state (see, e.g., Horton v. City of Oakland (2000) 82 Cal.App.4th 580.) Civil forfeitures are actions in rem intended to be remedial in nature "'by removing the tools and profits' from persons engaged in the illicit drug trade." (People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 418, 430, quoting H&S Code section 11469, subd. (j).) Federal, state, and municipal law enforcement agencies share the proceeds according to varying formulas exacted by each jurisdiction.

California's civil asset forfeiture law has endured many revisions. The present version of the California forfeiture statute requires that the government prove the owner of an interest in the property knowingly consented to the illicit use of the property, either beyond a reasonable doubt or by clear and convincing evidence, depending upon the nature of the property involved. (H&S Code sections 11488.4, subd. (i), 11488.5, subd. (d)(1).) H&S Code sections 11469 through 11495 regulate drug-related asset forfeiture, including forfeiture of vehicles. The statutes contain strict substantive and procedural conditions for the civil forfeiture of a vehicle used in the commission of a specified controlled substance offense. They also specify in detail the purpose, scope, and procedures of seizure and forfeiture, and the permissible uses to which the proceeds may be put. Unlike the Sacramento forfeiture ordinance in question, the H&S Code provisions include the requirement of a criminal conviction, proof beyond a reasonable doubt of the conditions justifying forfeiture, and the protection of innocent parties who hold an interest in the vehicle. (H & S Code sections 11470, 11488.4.)

In 1997, the City of Oakland enacted an ordinance authorizing the seizure, forfeiture, and sale of vehicles used to solicit prostitution or acquire drugs "after citizens complained about the nuisance created by persons driving through neighborhoods to buy drugs or solicit acts of prostitution." (Horton, supra, 82 Cal.App.4th at p. 584.) Sacramento also enacted a nuisance ordinance to rid its residential neighborhoods of the blight associated with prostitution and drug buying. In Horton, the First District Court of Appeal rejected the preemption challenge.

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 Supreme Court Requires More Extensive Environmental Review to Adequately Analyze Long-Term Water Supply for Long-Range Development Project

In Vineyard Area Citizens v. City of Rancho Cordova, the California Supreme Court Case held an EIR failed to adequately analyze the impacts of a long-term water supply for a long-range plan to develop 6,000 acres with approximately 22,000 residential units.

The Court identified the principal disputed issue as “how firmly future water supplies for a proposed project must be identified or, to put the question in reverse, what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR for a land use plan.”  The Court emphasized that “CEQA should not be understood to require assurances of certainty regarding long-term future water supplies at an early phase of planning for large land development projects.”  However, “[i]f the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

As applied to the Project, the Court held that the EIR adequately evaluated the near-term water supply for the Project. Although much uncertainty still remained, the Court held that there was substantial evidence in the record demonstrating a reasonable likelihood that the near-term groundwater supplies would be available at least in substantial part to apply to the Project’s near-term needs. However, the Court held that the EIR did not adequately analyze the long-term water supply for the Project. The Court found that there were factual inconsistencies and lack of clarity in the EIR that made it unclear whether sufficient water would be available for the Project at full build out. The Court also held that the EIR for the Project did not properly tier off of or incorporate a prior EIR’s analysis of water sources.

The Court also held that the EIR should have been recirculated on the impact of the groundwater extraction on the Cosumnes River salmon. The Court held that the County’s response in the Final EIR that this impact was insignificant was not supported by substantial evidence.

City of Encinitas Prevails in Decision Regarding "Adult Business" Definition

In City of Encinitas v. F Street, the Court of Appeal affirmed a judgment in favor of the City of Encinitas, declaring the F Street adult retail store in Encinitas to be a public nuisance because it was operating in violation of the City’s zoning code and in close proximity to residential neighborhoods and a daycare facility. Encinitas’ adult business definition employs the defining term of "regular and substantial." The adult retail operator insisted that Encinitas had to specify a set percentage of inventory or floor space area devoted to adult materials. The Court rejected F Street’s position and found that the City’s definition of an adult business was constitutionally sound. The Court relied on the California Supreme Court’s decision in People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, 26, where the high court specifically rejected the premise that a local agency must utilize a mathematical standard to determine whether a business is an "adult business" subject to the agency’s adult ordinances.

The Court also rejected F Street’s argument that adult materials could not be considered to be a "substantial" portion of the business if they only constituted 12% of the store’s floor space and inventory. The Court recognized that floor space and inventory figures are both subject to significant manipulation and found it compelling that sales and rentals of adult videos and DVDs made up well over 25% of the store’s gross revenue in the first several months, even though they constituted a fraction of the adult inventory and were displayed on wall racks, thereby occupying a miniscule amount of floor area. The Court upheld the trial court’s conclusion that the F Street store in Encinitas was an "adult business" within the meaning of the City’s ordinances.

The Court summarily rejected F Street’s claim that the City violated its right to equal protection as being completely unsupported by the evidence. The Court then remanded the opinion to the trial court for the limited purpose of re-crafting the permanent injunction in keeping with the decision and the City’s adult ordinance.

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

Court of Appeal Holds that Regulation Limiting Campaign Contributions Drafted by the California Fair Political Practices Commission Conflicts with the Political Reform Act

In Citizens to Save California v. California Fair Political Practices Commission, the Court of Appeal upheld the trial court's ruling in favor of plaintiffs, campaign committee and candidate, which challenged a regulation promulgated by the California Fair Political Fair Political Practices Commission (FPPC) to limit campaign contributions.

Specifically, the Court agreed with the trial court which concluded that plaintiffs would likely prevail on their claims that the regulation was unconstitutional and exceeded FPPC's statutory authority. Also, because the trial court believed that plaintiffs would otherwise suffer irreparable harm because of the regulations negative effect on plaintiffs' First Amendment rights, the court granted a preliminary injunction pending trial.

To review the entire opinion, click here.

California Court of Appeal, 4th District to hear argument in City of Encinitas v. F Street (adult use case) won in trial court

On Wednesday, December 13, the California Court of Appeal, 4th District will hear argument in an adult use case the City of Encinitas won in the trial court in May 2005 -- City of Encinitas v. F Street. The case centers on the definition in the City’s adult ordinance of an adult business which is based on "regular and substantial conduct" and "regular and substantial stock in trade." The use of these standards for regulating adult businesses has been upheld by numerous courts, including the California Supreme Court (there is only one California case on point). In most cases, the courts have addressed whether the City’s application of the standard comported with its own specific guidance as to what constitutes "regular and substantial conduct." In this case, the City of Encinitas did not issue any specific guidance, nor did it define the standard based on percentages of revenue, floor space, or inventory, instead choosing to rely on the totality of the circumstances in each particular case.

F Street opened its adult retail store in the City of Encinitas in August 2003, offering a full spectrum of adult fare including hard core videos and DVDs, sexual devices, how to manuals and the like -- all in the wrong zone and too close to residences and a daycare facility. F Street argued that while the adult items were a regular part of their stock in trade, they were not a substantial portion of the stock in trade since they never exceeded 15% of the store’s inventory (the majority of the "inventory" was padded with bulk books, many of which were stacked on top of the shelves to the ceiling and never removed from the shrink wrap, and used National Geographics and Harlequin Romances, which were packed into a storage space behind the front window). Shortly after the store opened, the City filed an action in state court to enjoin F Street from operating an adult business in the wrong zone and in violation of the distance restrictions from sensitive uses. F Street filed a cross complaint, arguing that the "regular and substantial conduct" standard was unconstitutionally vague and the City’s use of that standard violated their civil rights.

At trial, the court first ruled that the City’s "regular and substantial course of conduct" standard is constitutional and the term "substantial" used in the City’s definitions is sufficiently definite and readily understood. Next, the City established that under the City’s definition, the totality of the circumstances determine whether a business meets the City’s definition of an "adult business." In this case, F Street is a well known chain of adult stores that advertises itself as THE adult superstore in San Diego County. The F Street name, logos and advertising appeared prominently throughout the store, in the front windows and around the parking lot. When the store opened, the extensive adult merchandise was displayed throughout the main floor area and hundreds of DVDs and videos lined the front and a side wall of the store. More than 80% of the store’s revenues came from the adult items, which were simply restocked when they were sold.

Less than two months after the store opened, Encinitas obtained a preliminary injunction which ordered F Street to cease operating as an adult store at its location. F Street simply reduced the percentage of adult merchandise and moved it to a large back room in the store which had no door and was immediately adjacent to the rear entrance of the store. At the conclusion of the trial, the court determined that F Street was operating as an "adult business" both when it opened and after the preliminary injunction issued and the store was reconfigured. The court issued a permanent injunction ordering F Street to cease selling any adult merchandise at the Encinitas location.

In its appeal, F Street argues that the trial court should have relied on the percentages of inventory and floor space devoted to adult merchandise in determining whether it was operating as an "adult business." F Street also argues that it was not lawful for the trial court to enjoin F Street from selling any adult merchandise at the Encinitas store.

Please review this blog to keep posted as to the appellate court’s ruling.

Court of Appeal Denies Rehearing of Its Decision that Resident Stated a Claim against City for Violation of the Brown Act's Requirement that City Council Meetings be Open and Public

On November 30, 2006, the Court of Appeal denied rehearing of its opinion entered in Wolfe v. City of Fremont. In Wolfe, the Court held that a City resident successfully stated a claim for violation of the sections of the Brown Act (California Government Code section 54950 et seq.) that prohibit the legislative body of a local agency from conducting nonpublic meetings.

Specifically, the Court held that the City Council of Fremont violated the Brown Act by privately discussing a new policy promulgated by the city's police department. The Court further held that the resident's allegations led directly to the inference that the council members had reached a consensus through nonpublic discussions that took place among them, thereby violating the Act.

To view the Court's denial of rehearing of Wolfe v. City of Fremont, click here.

To view the entire opinion of Wolfe v. Fremont, click 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

California Court of Appeals Holds that Mechanic's Liens Cannot be Enforced against Property Owned by a Municipality

In North Bay Construction v. City of Petaluma, the First Appellate District Court agreed with the trial court's decision and held that a mechanic's lien cannot be enforced against property owned by a municipality, even if the work was not performed as part of a "public works" project. In addition, the Court held that a contractor cannot recover in quantum meruit for improvements to a  municipality's property performed under a contract with a third party. The City of Petaluma was represented in this appeal by Joseph M. Quinn and Eric W. Danly, of Meyers, Nave.

In North Bay Construction, North Bay's complaint alleges that the City is the owner of real property commonly known as Redwood Empire Sportsplex that was leased to a developer for the purpose of constructing a sports complex. The developer contracted with North Bay, a licensed paving contractor, to perform grading work at the property, which North Bay completed, by for which it has not been paid. North Bay recorded a mechanic's lien against the property and served a "Notice of Potential Claim" on the City advising it that, as the owner and lessor of the property, it may be responsible for the reasonable value of the material and labor provided by North Bay. The complaint alleges, among other things, a common count to recover from the City the "reasonable value of the material and labor provided by North Bay."  The City demurred to the complaint on the grounds that a mechanic's lien cannot be enforced against public property and that common counts may not be asserted against public entities. The trial court sustained the demurrer without leave to amend. The City was dismissed from the action and North Bay filed a timely appeal.

In its reasoning, the Court explained that because of the principles of sovereign immunity, any right to impress a mechanic's lien of public property must be expressly, not implicitly, provided for by statute. While most of the cases supporting this conclusion involve public work projects, the Court noted that the prohibition is frequently stated as applying to "public property," not simply to public work projects. Moreover, in holding that a mechanic's lien could not be imposed in this situation, the Court disagreed with North Bay's assertion that a distinction must be drawn between property owned by a municipality that is used for governmental as opposed to proprietary purposes--that property held in a proprietary capacity (as North Bay contends is the case here) is subject to a lien as is any privately held property. The Court explained that while California formerly drew a distinction between property held in a proprietary as distinguished from a governmental capacity for the purpose of permitting execution on a judgment lien, this distinction has since been abolished by the Legislature, in its passage of the California Tort Claims Act. The Court also noted that the Legislature has enacted a separate comprehensive scheme prescribing the manner in which a judgment against a local public entity may be satisfied, and it does not include execution of public property.

Lastly, the Court held that North Bay's common count cause of action seeking to recover the value of services based on a theory of quantum meruit was improper given that a quasi-contract theory cannot be asserted against a municipality in a public works context. The Court cited certain general principles inherent in the arena of municipal contracts. The most important being, that contracts wholly beyond the powers of a municipality are void. They cannot be ratified; no estoppel to deny their validity can be invoked against the municipality; and ordinarily no recover in quasi-contract can be had for work performed under them. Moreover, the Court noted that the competitive bidding requirements were founded upon a salutary public policy declared by the Legislature to protect the taxpayers from fraud, corruption, and carelessness on the part of public officials and the waste and dissipation of public funds. As such, the Court concluded that North Bay must be presumed to have known the law. It could have protected itself by confirming the existence and sufficiency of a construction loan and following the statutory sop notice procedures, or by obtaining a payment bond or other security to ensure payment. Having failed to do so, North Bay cannot now shift the burden of its loss to the City in disregard of well-defined public policy to the contrary.

To read the entire published opinion, click here.

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