November 2006

Gov. Schwarzenegger Opposes Prop. 90

Governor Arnold Schwarzenegger announced his opposition to Proposition 90 on Tuesday in a letter sent to the San Francisco Chronicle.  The Governor argues against Prop. 90 because "it threatens to increase costs for taxpayers by billions of dollars each year"; would "allow any landowner, business or enterprising trial lawyer to sue the government and its taxpayers any time a state or local agency passes a lw that someone claims has resulted in "substantial economic loss" to their property;" would "allow potential payouts of taxpaer dollars over new laws and regulations intended to protect open space and the environment; laws and regulations intented to protect consumers; and laws and regulations designed to restrict undesireable businesses in residential neighborhoods."  You can read the entire letter on the newspaper's website at

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.

Adjacent Private Property Owners Cannot Claim Ownership of Street Dedicated in 1888 But Which Only Exists on Map

Under the common law of the State of California, where a private road has been offered for public dedication, the offer may be accepted by formal action of the public entity or by public use. In the recent case of Wright v. City of Morro Bay, 2006 DJDAR 14782, the California Court of Appeal affirmed a San Luis Obispo Superior Court's dismissal of a complaint for quiet title in which the plaintiffs' claimed to be the fee owners of a portion of the dedicated street abutting their property because the street was never opened or used for a public purpose and only existed on paper.

The dedication of the street occurred in 1888, and the City apparently adopted a resolution accepting the offer in 1935, but never opened the road. The City filed a demurrer to the plaintiff's quiet title action. Plaintiffs countered with a motion for summary judgment. The Superior Court sustained the demurrer without leave to amend and dismissed the summary judgment as moot.

Plaintiffs relied upon Code of Civil Procedure section 771.010, enacted in 1955, 20 years after the City formally accepted the offer to dedicate. Section 771.010 provides that there is a conclusive presumption a proposed dedication has not been accepted if the four conditions set forth in the statute are met, which include:: the proposal of dedication was made by filing a map only; no acceptance of the dedication was made or recorded and no public use within 25 years after the map was filed; and, finally, the property was sold to a third party after the map was filed, who used it as if it was free of the dedication.

The Court rejected the application of section 771.010 because the statute operated prospectively, the City formally accepted the dedication in 1935, and the complaint alleged that the land was not used for any purpose, public or private.

New Limits on Eminent Domain Pass in Numerous States

While voters in California rejected Proposition 90 (which would have changed the State's Constitution and limited the use of a public entity's power to condemn) last Tuesday, ballot measures to limit eminent domain powers were passed in eight other states. Right now, 34 states have adopted laws or passed ballot measures in response to the Supreme Court's 2005 decision in Kelo v. New London, which upheld the use of condemnation for economic development.

For a further examination of the laws passed in other states, see the New York Times article "Voters Back Limits on Eminent Domain" by Terry Pristin, dated Wednesday, November 15, 2006.

Complaint Sufficiently States a Claim for Retaliation

Attorney Authors: 

Taylor v. City of Los Angeles Department of Water and Power

An engineer sued his municipal employer and supervisor for retaliation because he allegedly opposed discrimination against a subordinate. The Trial Court dismissed the action after sustaining a demurrer without leave to amend. The Court of Appeal reversed the decision of the Trial Court, holding that the engineer sufficiently stated a cause of action for retaliation under both the state and federal tests for retaliation.

The alleged wrongful conduct that the engineer used as a basis for his complaint included, without limitation, that his employer took away his supervisory position, threatened to take away his alternate work schedule and barred him from completing his supervisory certification courses.

To read the entire opinion click here.

Eminent Domain Reform Fight Rises Again

Earlier this month, California voters rejected Proposition 90 which would have changed the State's Constitution and all but eliminated redevelopment in California. Now taxpayer advocates have submitted another basically edited Prop. 90 measure for review and a possible 2008 vote they claim will protect property owners from government seizures.  Apparently, the measure, sponsored by the Howard Jarvis Taxpayers Association, allows government seizures for public purposes, but not private development, much like the defeated Proposition 90.

The proposed act is currently at the State Attorney General's Office. If it qualifies by meeting the legal requirements, a title and summary will be issued. Then supporters will begin collecting the signatures needed to qualify it for the 2008 ballot. Stay tuned.

For further information please see the LA Daily News -