February 2007

Litigation Expenses Awarded to Defendant Dismissed After Selling Interest Being Acquired by Public Agency

February 1, 2007, by Meyers Nave

A Court of Appeal in the Second Appellate District in the State of California awarded "litigation expenses" (which include attorneys' and appraisers' fees and costs) to a defendant who was dismissed during the litigation because he sold his property interest (to another defendant) while the action was pending - thus mooting the action against him. The appellate court held Code of Civil Procedure section 1268.610(a) provides that litigation expenses shall be awarded to a defendant whenever "the proceeding is wholly or partly dismissed for any reason."

Although litigation expenses in eminent domain actions are generally not awarded unless the plaintiff's final offer was unreasonable (Code Civ. Proc. section 1250.410(b)) or the case is wholly or partially dismissed (or abandoned), the court reasoned the plain meaning of the phrase "for any reason" includes dismissal of the defendant because he sold his property interest during the litigation of the matter. For the full text see Temple City Redevelopment Agency v. Bayside Drive Limited Partnership (2007) 2007 SOS 474: http://www.metnews.com/sos.cgi?0107%2FB189736

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

February 3, 2007, by Meyers Nave

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

February 5, 2007, by Meyers Nave

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.

Property Owners Sue Federal Government for $12 Million for Inverse Condemnation

February 10, 2007, by Meyers Nave

Property owners near Coalinga, California, are going to trial in an inverse condemnation action filed against the U.S. Department of Energy. The government used eminent domain four years ago to add a high-tension electrical wire over the property. Owners David Wood and Donald Devine sued two years ago, claiming the power line destroyed their plans to build more than 1,000 homes and a golf course on the property. The property owners are seeking $12 million; the government offered $85,000. The government defends their offer amount because development in the area is unlikely due to its location far from a major city and water issues.

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

February 11, 2007, by Meyers Nave

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.

Court of Appeal Finds Public Agency’s Approval of Contract Was Not Subject to CEQA

February 12, 2007, by Meyers Nave

In Concerned McCloud Citizens v. McCloud Community Services District, the Court of Appeal rejected a citizen group's claim that the District violated CEQA by approving a contract with a water bottling company to develop and sell the District's mountain spring water without conducting environmental review.

The contract was subject to numerous contingencies, including a provision that the actual water bottling project would be reviewed under CEQA and the agreement could be modified as a result. In addition, the agreement did not give the water bottler any vested rights, or commit the District to a definite course of action, or limit the District's discretion to consider mitigation measures and alternatives under CEQA.   In light of these facts, the Court held the District was not required to conduct a CEQA review before approving the contract.

Arroyo Grande Drops Condemnation of Gravesites

February 14, 2007, by Meyers Nave

The solution to traffic problems at the Brisco Road interchange remains to be decided after the use of eminent domain to acquire land and relocate 200 to 250 gravesites for a roundabout has come to a halt. According to City officials, the roundabout option could have mitigated the need to widen the Brisco Road undercrossing at Highway 101 and was a cheaper alternative at $5 million versus $15 million or more for other options. However, Mayor Pro Tem Ed Arnold and Councilman Jim Guthrie and members of the Arroyo Grande Cemetery District opposed the condemnation. The majority of the public comments received were negative. Many people, including those at the City, believed it to be a moral issue. The City will look into other options and select a preferred alternative in late spring or early summer.

California Supreme Court Denies Councilmember's Defense

February 19, 2007, by Meyers Nave

In People v. Chacon, the California Supreme Court held that a Bell Gardens City Councilmember could not use the entrapment by estoppel defense against charges that she violated Government Code Section 1090 by seeking and obtaining appointment as the city manager while serving as a councilmember. Entrapment by estoppel rests on the premise that the government may not actively provide assurances that conduct is lawful, and then prosecute those who act in reasonable reliance on those assurances.

The Councilmember raised the defense because the Bell Gardens City Attorney drafted an ordinance eliminating a municipal code provision that required one year of ineligibility for city manager appointment after departure from council service, and advised the Councilmember that such appointment would comply with state law. However, the Supreme Court declined to apply the defense to public officials who seek to defend conflicts-of-interest violations by claiming reliance on public attorney advice: "If permitted to rely on the defense of entrapment by estoppel, such an official could insulate herself from prosecution by influencing an employee to provide the advice she seeks. The appointee would be forced to choose between two masters: the official in whose hands his continued employment rests and the public that both are sworn to serve."

The Supreme Court indicated that it had no opinion as to the Councilmember's guilt or innocence.

In a separate portion of the opinion, the Supreme Court held that an order of dismissal made because the prosecution announces it is unable to proceed as the result of a pretrial motion is appealable.

Court of Appeal Holds that Public Agency Decision to Hire Retirees to Remedy Short-Term Staffing Shortage is Not an MMBA Meet and Confer Issue

February 20, 2007, by Jesse Lad

Sacramento Police Officers Association v. City of Sacramento

The Sacramento County Superior Court issued a writ of mandate at the behest of the Sacramento Police Officers Association ("POA") directing the City and County of Sacramento Police Department to meet and confer with the POA regarding the implementation of a policy to hire retirees as temporary employees. This policy was designed to remedy a short-term staffing shortage in the Police Department. The Superior Court's ruling was based on the language in the Meyers-Milias Brown Act which requires covered public agencies to negotiate in good faith with employee organizations before challenging the status quo regarding terms and conditions of employment that fall within the "scope of representation."

The Court of Appeal overturned the Superior Court's ruling, and held that the proposal to hire retirees in response to an "abrupt shortage in the staffing of the police force" was a fundamental management policy decision designed to maintain the existing level of public safety in the community. This determination was based in part on evidence which indicated that the staffing shortage could not be remedied through the ordinary process of recruiting and hiring.