August 2007

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

August 3, 2007, by Meyers Nave

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.

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

August 13, 2007, by Meyers Nave

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

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

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

Proposition 1C TOD Housing Program Draft Guidelines - Public Comment and Forums

August 26, 2007, by Meyers Nave

The California Department of Housing and Community Development (HCD) is seeking comments on draft guidelines for the Transit Oriented Development Implementation Development Program (TOD Housing Program). Click here for a copy of the draft guidelines. Additional information is available at http://www.hcd.ca.gov/fa/tod/. The HCD web site also includes a partial list of transit stations meeting the proposed eligibility requirement specified in Section 103(a)(3)(A) of the draft guidelines. HCD expect to have posted information on drive times, as described in Section 103(a)(3)(B), before the public forums.

HCD is accepting written comments and questions on the draft guidelines, via e-mail to cahouse@hcd.ca.gov. The deadline for comments is September 10, 2007. When sending comments, use “TOD Guidelines Comments” as the subject line.

Oral comments will be accepted at the public forums listed below. These forums will include a short overview of the draft guidelines, but their primary purpose is to provide members of the public with an opportunity for oral comments. If you plan on attending, RSVP by emailing Donella Moran at dmoran@hcd.ca.gov, and specify which session you plan to attend.

Forum Locations:

Sacramento, August 27, 2007 from 1:00-3:00 PM

1800 3rd Street, Suite 183, Sacramento, CA 95811 (near 8th & O Light Rail Station)

Oakland, August 28, 2007 from 9:00-11:00 AM

Ehilu Harris Building- Auditorium, 1515 Clay Street, Oakland, CA 94612 (near 12th and 19th Street BART Stations)

Los Angeles, September 4, 2007 from 1:00-3:00 PM

Ronald Regan Building- Auditorium, 300 South Spring Street, Los Angeles, CA  90013

San Diego, September 5, 2007 from 10:00-12:00 Noon

SANDAG Boardroom, 7th Floor, 401 B Street, San Diego, CA 92101

California Supreme Court Issues a Ruling Regarding the Scope of Arbitration Agreements

August 31, 2007, by Jesse Lad

The San Francisco Chronicle recently reported about a California Supreme Court decision that placed limitations on an employer's ability to restrict class action lawsuits in an arbitration agreement. To read the article click here.

New Developments in Global Warming and CEQA - SB 97 and Attorney General Settlement of CEQA Lawsuit

August 31, 2007, by Meyers Nave

There have been two recent significant developments concerning the analysis of global warming and greenhouse gas (GHG) emissions under the California Environmental Quality Act (CEQA).

First, as part of the state budget agreement, SB 97 was adopted, which addresses GHG analysis under CEQA. The bill states that the failure to adequately analyze GHG emissions is not a CEQA violation for two types of projects: (1) transportation projects funded under the Highway Safety, Traffic Reduction, Air Quality and Port Security Bond Act of 2006, and (2) projects funded under the Disaster Preparedness and Flood Prevention Bond Act of 2006. So, the bill essentially creates a CEQA exemption for analysis of GHGs for these projects. The provision applies retroactively to any CEQA document that has not become final.