Public Law

Public Agencies Not Required to Disclose Attorney Billing Invoices Under CPRA; Attorney-Client Privilege Applies to Entire Invoice

The California Court of Appeal recently held that billing invoices sent by an attorney to a public agency client are protected by the attorney-client privilege and are not required to be disclosed by the  public agency, even in redacted form, under the California Public Records Act ("CPRA," Government Code §§ 6250

Public Records Do Not Include E-mails and Text Messages to or from Public Officials, if on Private Electronic Devices and Accounts

On March 27, 2014, a California Court of Appeal held that when officers and employees of a public agency use private accounts and personal electronic devices to send or receive messages, the messages do not qualify as "public records" under the California Public Records Act ("CPRA"), even when the messages concern public agency business.  (City of San Jose v. Superior Court (Smith) (Mar. 27, 2014, H039498).)

Fifth Appellate District Affirms Preliminary Injunctions Prohibiting Internet “Sweepstakes” Café Operations

Attorney Authors: 

Businesses that sell computer “time” in exchange for entries into on-line sweepstakes games likely violate California’s antigambling laws, the Fifth District Court of Appeal held last week.  In People v. Grewal (CON F065450/F065451/F065689), the Court upheld three preliminary injunctions that prohibit “sweepstakes” operations at Internet café businesses in Kern County.  The injunctions were previously granted to the Kern County District Attorney against specific businesses. Read the full opinion here.

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.

Legislation Explicitly Recognizes that Public Entities Are Not Liable for Dog Bites Occurring in Dog Parks

Governor Brown signed today Assembly Bill 265, amending the Government Claims Act to provide clear and unambiguous immunity for public agencies owning or operating dog parks.

San Diego to Stop Prosecuting Pot Dispensaries

San Diego Mayor Bob Filner has ordered the City Attorney to stop prosecuting a dozen pending cases against medical marijuana dispensaries, and for the city to temporarily halt any prosecutions until new regulations are put in place.  Filner made public his support for the use of medical marijuana during his election campaign.  His directive only impacts code enforcement, and does not affect cases brought by the San Diego County District Attorney’s Office or by federal authorities.  For more information, click here.

Watch Out Red Light Violators!

On November 21, 2008, a citation was issued charging defendant Steven Gray with violating Vehicle Code section 21453, subdivision (a) for failing to stop for a red signal at the intersection of Washington Boulevard and Helms Avenue in Culver City.  An Automatic Traffic Enforcement System (ATES) recorded the violation.  Gray was arraigned and pleaded not guilty.  The defense made a pre-trial motion to dismiss based on Culver City’s alleged failure to provide the 30-day warning notice period and public announcement requirements of Vehicle Code section 21455.5, subdivision (b) before ATES equipment was installed at Washington Boulevard and Helms Avenue.  Culver City stipulated that “Culver City has only conducted such warning notices and public announcements prior to the commencement of the entire program in Culver City in 1998, and that no such notices or announcements were done specifically for the intersection (at the intersection of Washington Boulevard and Helm[s] Avenue, Culver City) at which defendant was photographed allegedly running a red light.”  The trial court denied Gray’s motion to dismiss. At conclusion of the trial, the court found that the ATES-produced evidence was admissible, found Gray guilty of the charge, and ordered Gray to pay a fine.  Gray appealed the decision.  

Denial of Mobile Home Park’s Application for Rent Increase is Upheld Because Rent Control Ordinance Properly Balanced the Rights of the Park Owner and the Tenants

Appellant Besaro Mobile Home Park, LLC (“Besaro”) operated a mobile home park in the City of Fremont (“the City”).  In 1987, the City adopted a rent control ordinance to address the unique attributes of mobile home ownership and park management.  In 2009, Besaro filed an application for a major rent increase under the ordinance.  Although Besaro admitted that it was currently receiving a fair rate of return on its investment, it argued that the rents should be consistent with general market conditions.  The application was denied following an administrative hearing and the superior court denied Besaro’s petition for writ of administrative mandate.  In the appeal, Besaro argued that the denial of the major rent increase was contrary to the ordinance and violated its rights under the California Constitution. 

New Laws Regarding Charter City Elections, Public Agency Management Contracts and Obligations and Posting of Public Agency Meeting Notices

Attorney Authors: 

 AB 1344, which became effective on January 1, 2012, changes the law regarding employment and compensation for public agency managers.  It also requires public agencies to post meeting agendas on their websites and imposes new restrictions on changes to city charters.    Here is a summary of significant changes:  

After July 1, 2012, Local Agencies Have Limited Ability to Require Solid Waste Enterprises to Indemnify Them for Violations of Proposition 218

Attorney Authors: 
Some local agencies require garbage franchisees or permittees to indemnify them for liabilities related to Proposition 218. Agencies entering into or renewing solid waste franchise agreements on or after July 1, 2012 may take note that SB 841, signed by Governor Brown on October 9, 2011, limits the ability to enforce such requirements. 
SB 841 adds new section of the California Public Resources Code (40059.2), which makes unenforceable the provisions of any local agency contract, permit or ordinance entered into or effective after July 1, 2012 that require a solid waste enterprise to indemnify the local agency for the agency's "failure to obtain voter or property owner approval" of a fee in violation of Article XIIIC or XIIID of the California Constitution.  Similarly unenforceable will be any indemnity obligation that would require a solid waste enterpriseto refund to its customers fees that were collected on behalf of or remitted to the local agency, where the fees were imposed in violation of the above constitutional provisions, as determined by a court. Such indemnity provisions in current permits or agreements remain enforceable. 
The new prohibition targets specific indemnity requirements; other forms of indemnification related to fees for solid waste services may still be permissible.
The text of SB 841 may be found here.

Significant CEQA Streamlining Reform Bills Enacted

Attorney Authors: 

Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012.  SB 226 creates a new exemption for urban infill and renewable energy projects.  It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California's land use, transportation and greenhouse gas (GHG) reduction policies.   AB 900 shortens the Court review for CEQA challenges to certified "leadership projects" by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule.  "Leadership projects" must be certified LEED silver or higher, be carbon neutral, create "high-wage, highly skilled" jobs, and result in an investment of at least $100 million in California's economy (among other requirements).  SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by  streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.

SB 226 is likely to have the broadest effects for public agencies and private developers by facilitating urban infill projects.  It will likely reduce the time and expense for CEQA review for infill projects.  SB 226 expands the definition of urban infill projects, strengthens CEQA's tiering provisions, and provides that impacts from greenhouse gas emissions will not defeat the urban infill exemption under certain conditions.

Click here for a more detailed analysis of these recent CEQA amendments.   

Governor Vetoes Bill That Would Have Limited Protests at Funerals

Attorney Authors: 

As we discussed in a previous blog posting, SB 888 would have limited the ability of protestors to demonstrate at funerals.  Aimed at least in part at the activities of the Westboro Church, SB 888 attempted to protect the privacy of mourners.  Governor Brown vetoed the bill on September 6, because of its "plain" failure to comport with the Snyder v. Phelps US Supreme Court decision. The bill's sponsor (Sen. Ted Lieu, D-Torrance) is said to be working on a new version of the bill. You can read the Governor's veto message here.

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. 

Ordinance Restricting Storage and Parking of Recreational Vehicles on Private Property Held Constitutional

Attorney Authors: 

On May 2, 2011, in Disney v. City of Concord, the California Court of Appeal, First Appellate District held that an ordinance regulating the storage and parking of recreational vehicles, including boats and other recreational equipment, on residential property was within the City of Concord’s police power.

The ordinance at issue generally prohibits the storage of recreational vehicles on front yards and driveways and requires that recreational vehicles stored in side and rear yards be located behind a six-foot high opaque fence. In addition, the ordinance limits the length of time that a recreational vehicle can be parked in a driveway for purposes of loading or unloading to 72 hours before or after a trip.

The plaintiff filed suit against the City arguing, among other things, that the ordinance exceeded the City’s police power because it was adopted primarily out of concern for community aesthetics. The Court rejected the plaintiff’s argument, reasoning that it is well established that the concept of public welfare includes aesthetic values. The Court also noted that the ordinance is “typical” as nearly all of the cities in Contra Costa County regulate the storage of recreational vehicles on private property to some extent.

For the complete opinion, click here.

Bill Introduced to Regulate Protests at Funerals

Attorney Authors: 

In the wake of the charged March 2nd U.S. Supreme Court decision, Snyder v. Phelps, the California Senate has proposed SB 888, which outlaws protests on public property within 1,000 feet of a burial site, mortuary, or place of worship, from one hour before, to one hour after, a funeral.

In Snyder, the Supreme Court held that the First Amendment protected the right of the Westboro Church to silently picket 1,000 feet from the funeral of a soldier while church members displayed various religious and anti-gay signs.

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

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

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

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

Proposed Law Would Require Cities and Counties to Provide On-Line Building Permit Applications for Electric Vehicle Charging Stations

The California Legislature recently introduced S.B. 730, a bill that would mandate cities and counties to provide on-line building permit applications for electric vehicle charging stations.

S.B. 730 would amend Section 44272 and Section 19830 to the Health and Safety Code, which establish the State's Alternative and Renewable Fuel and Vehicle Technology Program. The Program is administered by the State's Energy Commission, which provides grants, loans, or other financial incentives for the development of innovative technologies that transform California's fuel and vehicle types to help attain the State's climate change goals. In particular, S.B. 730 would require local governments to provide online building permit applications for installation of vehicle charging equipment. In addition, S.B. 730 would require local governments to approve building permits applications for installation of vehicle charging equipment within one business day, and review the work completed under the permit within 7 days of completion of the work.

If signed in to law, S.B. 730 would not only require California's cities and counties to have online building permit applications for installation of vehicle charging equipment, but the bill would also speed up the response time for building permits and inspections for vehicle charging equipment.

The bill is scheduled for a committee hearing on May 2, 2011. You can follow the status of S.B. 730 here.

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.

Proposed Legislation to Address Governor's Proposal to Destablish Redevelopment Agencies

Late in the afternoon on Wednesday, February 23rd, the State Department of Finance released language for a proposed budget trailer bill that addresses the Governor’s proposal to disestablish redevelopment agencies. The 26-page bill has not yet been formally introduced, but may be introduced and considered by the Budget Conference Committee within the next few days. It is likely that the bill will undergo modification prior to consideration by the legislature, and if adopted, the bill may be subject to legal challenge.

The proposed legislation states that it is an urgency measure that would take immediate effect upon approval by the legislature and signature by the Governor. Although urgency legislation normally requires approval by two-thirds of both the Senate and Assembly, it is possible that the legislation may be included as part of the budget package and become effective with majority approval and the Governor’s signature.

Go here to read the full summary of the Department of Finance proposed trailer bill as released on February 23rd.

Local Agencies Now Required to Provide Electronic Copies of Project Documents to Contractor Plan Rooms

The California State legislature recently passed AB 2036, codified as Section 20103.7 of the Public Contract Code, which provides that "[a] local agency taking bids for the construction of a public work project or improvement, upon request from a contractor plan room service, must provide an electronic copy of a project's contract documents at no charge to the contractor plan room." Section 20103.7 of the Public Contract Code took effect January 1, 2011.

California has approximately 32 plan room services throughout the state which allow contractors to conveniently access public contract bid documents. These contractor plan rooms are entitled to a free electronic copy of local agency public contract documents upon request under Section 20103.7 of the Public Contract Code. The law does not specify the electronic form in which contract documents must be produced, or the timeframe for production. Nothing in section 20103.7 suggests that local agencies are required, at their expense, to create electronic contract documents in specialized formats. However, local agencies may wish to familiarize themselves with contractor plan room services and their preferred electronic formats, because larger bid pools may result from placement of bid documents with plan rooms. Timely submission of electronic documents to plan rooms may further assist agencies by encouraging a greater number of contractors to bid on agency projects.

Section 20103.7 does not require local agencies to provide all bidders electronic copies of contract documents at no charge - only contractor plan rooms, and only upon request.

Local agencies should consider taking steps such as the following to comply with the law and maintain control over the contract information sent to potential bidders:

  1. Include in electronic documents provided to plan rooms the date when the documents were prepared and a notice that all bidders are responsible for ensuring that their bid is submitted on the latest project documents, and that all addenda are included, by contacting the agency project manager.
  2. Include a watermark on the electronic documents provided to plan rooms so the agency can distinguish the electronic plan room copies from hard copies provided to bidders, and check whether bids submitted on electronic documents contain the latest addenda.
  3. In addition to providing electronic copies of project documents to contractor plan rooms, post them on your agency’s website and provide bidders with an opportunity to register to receive updates and addenda via e-mail.

These steps can help prevent award complications and bid disputes that may arise from submission of bids on incorrect or incomplete versions of project documents. We will continue to monitor developments in public contract bidding law and provide updates on further developments. For more information or assistance with other construction or contract matters contact Ben Reyes, Eric Danly or Eric Casher at 800.464.3559.

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.

County’s Farmland Mitigation Program Requiring Purchase of Conservation Easement is Valid

Attorney Authors: 

In Building Industry Association of Central California (BIA) v. County of Stanislaus, the court of appeal rejected a challenge brought by the BIA against the county’s Farmland Mitigation Program (FMP). The FMP guidelines, to mitigate the loss of farmland, require each developer to acquire a conservation easement equal in size to the area of farmland to be converted to residential use.

Proposition 26’s Immediate Impact on Local Governments Will Be Limited

Voters approved Proposition 26 at the November 2, 2010 election, and, upon certification of the results, the measure will be effective as of November 3. The main thrust of Proposition 26 was to require a two-thirds vote of both houses of the Legislature to approve “regulatory fees” that the measure indicates are unrelated to a regulatory program. But it will also directly limit local governments’ authority to levy new fees. Nonetheless, our initial judgment is that the impacts on most local governments will not be particularly significant, although the impact may increase as ambiguities regarding the text of the measure are resolved in the future.

Proposition 26’s stated purpose is to require voter approval for regulatory fees that “exceed the reasonable costs of actual regulation or are simply imposed to raise revenue for a new program and are not part of any licensing or permitting program. . . .” Thus, the proposition was aimed at a narrow class of regulatory fees. The text however is less surgical. It simply defines “tax” to include “any levy, charge, or exaction of any kind imposed by” local government except for those listed among seven exceptions. The significance of this new definition is that any levy not covered by one of the seven listed exceptions is subject to voter approval.

Importantly, though, Proposition 26 does not apply to any fees that were in effect on November 2, 2010. Thus, even if a fee enacted prior to November 3, 2010 does not fit within any of Proposition 218’s exceptions, it will nonetheless remain valid if it is not increased.

Additionally, most of the fees presently imposed by local governments fit clearly within one or more of the seven listed exceptions. For example, sewer and water service charges are exempted because they are subject to Proposition 218’s fees and charges provisions. Similarly, assessments that comply with Proposition 218 are exempt. And, Proposition 26 has no impact on development impact fees and other exactions imposed as a condition of property development.

Thus, Proposition 26’s key impact on local government is that it will prevent the enactment or increase of regulatory fees that do more than recover the costs of regulation. Proposition 26 restricts regulatory fees by limiting recoverable costs to those associated with issuing licenses and permits, performing investigations, inspections and audits, and administration and enforcement. For instance, the Legislative Analyst indicated in the ballot pamphlet that fees imposed on alcohol retailers to generate funds to reduce public nuisance problems associated with alcohol would likely be considered taxes.

Nonetheless, because of the manner in which it was drafted, Proposition 26 may result in legal disputes in the future over the local government’s authority to adopt and increase fees of all types. We along with other local government lawyers are presently analyzing the potential arguments that may arise. Time will tell, but our initial view is that, outside of the regulatory fee context, Proposition 26 is unlikely to be interpreted a manner that is substantially more restrictive than previous law.

Federal Government Announces it Will Enforce Federal Marijuana Laws if Proposition 19 the “Regulate, Control and Tax Cannabis Act of 2010” Passes

If California voters adopt Proposition 19 on November 2, 2010, California will be the first state in the nation to legalize marijuana for recreational use. Marijuana, whether for recreational use or medical use, remains an illegal substance under the Federal Controlled Substances Act (“CSA”). In an October 13th letter to former chiefs of the U.S. Drug Administration Agency, Attorney General Eric Holder stated the Federal Government will continue to enforce its marijuana laws in California, even if Proposition 19 passes.

According to Holder’s letter, “We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law.” The Attorney General also said, “If passed, this legislation will greatly complicate federal drug enforcement efforts to the detriment of our citizens.”

This letter may suggest a potential departure from the Administration’s position of not prosecuting medical marijuana users in compliance with state law, as set forth in an October 19, 2009 letter from the Department of Justice (“DOJ”). While the DOJ expressed its commitment to the enforcement of the CSA in all states, it explicitly told Federal prosecutors that the Department’s priorities should not focus on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” 

With the Federal government’s stated opposition to Proposition 19, and the intent to enforce the CSA, local governments face an even bigger challenge of trying to comply simultaneously with State law and Federal law.

Requiring Religious Institutions to Comply with Neutral Conditional Use Permit Process is Not a Substantial Burden under RLUIPA

Attorney Authors: 

In County of Los Angeles v. Sahag-Mesrob Armenian Christian School, a California Court of Appeal affirmed a grant of preliminary injunction enjoining the religious school from operating in a residential zone until it obtained a conditional use permit. The school had first removed the case to federal court, but the district court remanded to the state court; the district court lacked subject matter jurisdiction because federal law was raised only as a defense.

Santa Monica Mountains Conservancy’s Grant to a Joint Powers Authority of Which It is a Member is Not Prohibited

Attorney Authors: 

On September 23, the California Court of Appeal held that the Santa Monica Mountains Conservancy’s (“Conservancy”) $200,000 grant to the Mountains Recreation and Conservation Authority (“Authority”) was not illegal. (Robings v. Santa Monica Mountains Conservancy) Challengers to the grant, including individuals, a taxpayer group, and another preservation fund, had asserted that the Conservancy’s grant was a grant “to itself” because the Conservancy is one of three members of the Authority. Because the Conservancy’s enabling act did not specifically give it authority to grant funds to itself, challengers asserted, the grant was prohibited.


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

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

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

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

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

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

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

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.

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.)

Social Media Webinar

Meyers Nave presents a complimentary webinar that will explore employers' rights and obligations with regard to monitoring employees in the workplace, including employee use of social media. 

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

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

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

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

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

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

Counties Should Consider Adopting Wind Ordinances Before Significant Restrictions Take Effect

Counties that have not done so should consider adopting wind energy system ordinances before Dec. 31, 2010, when restrictions on wind ordinance regulations will take effect pursuant to Assembly Bill No. 45 (“AB 45”). AB 45 encourages counties to adopt ordinances that provides for the installation of small wind energy systems and declare s it to be the policy of the state to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their permitting and use, including minimization of permitting costs. (See Govt.

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

Supreme Court Rejects Bright-line Rule Barring Agency Attorneys from Performing Dual Roles in Unrelated Administrative Proceedings

The California Supreme Court ruled Monday that an agency attorney prosecuting a matter before the agency's decision making body may also serve as advice counsel to the decision making body in unrelated matters. The ruling represents a victory for all public agencies that maintain adjudicative processes to resolve disputes. Click here to read more.

High Court Makes It Easier to Assert Qualified Immunity for Public Officials

On January 21, the U.S. Supreme Court issued an important decision affecting public officials and their assertion of the "qualified immunity" defense to claims of civil rights violations (Pearson v. Callahan, 555 U.S. ____ (2009) (Slip Op. 07-751, January 21, 2009). Qualified immunity is an affirmative defense available to public officials which serves to shield them from liability typically in cases of constitutional law. It is usually asserted in defense of a peace officer's actions in civil rights suits.

Before Pearson, courts were required to analyze qualified immunity pursuant to the framework identified in Saucier v. Katz. (Saucier v. Katz, 533 U.S. 194 (2001)). According to Saucier, before a defendant would be entitled to qualified immunity, the trial court was required to answer two questions: (1) has the plaintiff alleged facts sufficient to support a constitutional violation; and (2) if yes, then is the right "clearly established?" This analysis, the "Saucier two-step," was the source of much criticism because it, among other things, forced courts to directly address constitutional questions, which is contrary to established jurisprudence to avoid deciding questions with constitutional import, if there exists any other grounds upon which a case could be decided.

Pearson addressed this criticism, and in a unanimous decision, the Supreme Court held that trial and district courts can skip this first question and instead go straight to the second question in the Saucier two-step analysis. In other words, the Saucier analysis is not mandatory.

This now allows the district and trial courts much more discretion and latitude in deciding whether an official should be entitled to qualified immunity. Rather than becoming mired in constitutional debate, courts may now simply turn to the question of whether the official's conduct was reasonable, or violative of clearly established law. This bodes well for being able to assert qualified immunity both sooner in the life cycle of litigation, and more often, including cases where under the Saucier test, the constitutional issues may have made prevailing on qualified immunity problematic.

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.

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