January 2008

Claim Presentation Requirements Apply to Contract Causes of Action Against Goverment Defendants

In December, the California Supreme Court held in City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007), Case No. S139237, that the requirements set forth in Government Code sections 905 and following, apply to breach of contract claims against any government defendant. The court held that contract claims fall within the plain meaning of the requirement that "all claims for money or damages" be presented to a local public agency (Government Code section 905) within one year and no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim has been presented to the public entity and has been acted upon or been rejected (Government Code sections 901, 911.2 and 945.4). The Court also adopted the practice of referring to the Claims Against Public Entities & Employees statutes as the "Government Claims Act" rather than the commonly used short title of "Tort Claims Act" in order to avoid any confusion engendered by the misnomer.

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.

Legal Analyses of the California Property Owners and Farmland Protection Act Shows Negative Impacts to Communities

In December, the California League of Conservation Voters Education Fund (CLCV Education Fund) and the Western Center on Law and Poverty (WCLP) released legal reports analyzing the impact of the California Property Owners and Farmland Protection Act (Act); an initiative which is expected to be on the June 2008 California ballot.

The report by the CLCV Education Fund contends that the Act will restrict a broad range of environmental and land use laws allowed under current California law, including laws and regulations that are designed to limit global climate change, protect coastal and agricultural lands as well as cultural and historical sites, promote "smart growth" and "livability" in communities, and restrict the locations of businesses such as industry and adult businesses. To read CLCV Education Fund's report, click here.

The report by the WCLP warns that the Act will abolish rent control measures established by local governments or voters, as well as invalidate local inclusionary housing ordinances that assist the creation of affordable housing. In addition, WCLP's report contends that the Act will abolish or threaten laws intended to protect tenants and home buyers. To read WCLP's report, click here.

Measure Restricting Use of Eminent Domain Qualifies For June Ballot

The first - and far-more reaching - of two competing ballot measures restricting seizures of private property by local governments qualified for the June ballot today and the other is on the verge of making it. The secretary of state's office cleared the "California Property Owners and Farmland Protection Act" after counties checked a sample of intitiative petition signatures. It would prohibit nearly all use of eminent domain to take property for private purposes and is sponsored by a conservative coalition. The rival measure would bar seizure of owner-occupied residences for private purposes and is sponsored by city officials who say eminent domain is needed to complete vital economic development projects. Secretary of state approval for this second measure is expected later today or Thursday.

California's Prevailing Wage Laws Do Not Apply To Charter City's Public Works Project

The California Department of Industrial Relations ("DIR") recently issued a Public Works Coverage Determination (Public Works Case No. 2007-01) which concluded that the City of Merced ("City"), a charter city, is exempt from the state law requirement to pay prevailing wages on a public works project because the project is completely within the realm of a municipal affair of the City. Although DIR determinations may not be expressly relied on as precedent under California Government Code section 11425.60, the determination is helpful because it explains how prevailing wage laws apply to public works project of a charter city.

The City's public work project at issue was the installation of automated storm drain pump station high water cutoff mechanisms ("Project"). The City's charter contains a "home rule" provision stating that the City retains control over its municipal affairs. The DIR's determination found that a public works project is exempt from California's prevailing wage laws when it falls within a chartered city's "municipal affairs."  The factors used by the DIR to determine whether a public works project is a municipal affair of a chartered city included (i) the extent of extra-municipal control over the project; (ii) the source and control of the funds used to finance the project; and, (iii) the nature and purpose of the project. Applying these factors to the City's Project, the DIR found that the Project was not subject to extra-municipal control, was exclusively financed with municipal funds, and was intended to prevent flooding of City land owned by City residents. Therefore, the Project was a municipal affair under the City's charter home rule provision and exempt from California's prevailing wage laws.

Court Rejects Streamlined Public Notice for Zoning Ordinance Action

A legislative body may not notice its public hearing on a proposed zoning ordinance or amendment before it has received the Planning Commission’s recommendation. In County v. County of Sierra (January 9, 2008, C055448) _____ Cal.App.4th _____ the court interpreted Government Code section 65856 to mean that the legislative body must provide notice after it has received the Planning Commission recommendation and that the recommendation must be included in the notice as the “general explanation of the matter to be considered” by the legislative body. (Gov’t. Code § 65094.)

Racial Harassement Claims are on the Rise

Attorney Authors: 

The EEOC has reported that racial harassment cases have nearly doubled since the 1990s, hitting an all-time high in 2007. To read an article describing the rise in racial harassment cases filed with the EEOC click here.

California Supreme Court Rules that Employees can be Terminated for using Medical Marijuana

Attorney Authors: 

In a 5-2 decision, the California Supreme Court held that an employee could be terminated for using medical marijuana. To read an article describing the Supreme Court's decision click here.

L.A. Introduces 24-Hour Medical Marijuana Vending Machines

Three sites in Los Angeles, including the Herbal Nutrition Center and the Timothy Leary Medical Dispensary in the San Fernando Valley, have introduced "PVMs" or "prescription vending machines" which can distribute medicinal marijuana to people carrying cards authorizing marijuana use. The computerized machines require fingerprint identification and a prepaid card with a magnetic stripe. Once the card and fingerprint are verified, an envelope with the pot drops down a slot. The amount of marijuana is limited to a certain amount per week. Apparently, by eliminating the vendor behind the counter, a lower price can be offered.

Marijuana use is illegal under federal law, which does not recognize the medical marijuana laws of the State of California and 11 other states. The Drug Enforcement Agency and other federal agencies have raided dispensaries in the Bay Area and throughout the state over the last two years, charging operators with felony distribution.

See, www.msnbc.msn.com for further details.