February 2010

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags. The case illustrates the breadth of agency approvals which may qualify as “projects” requiring environmental review under CEQA, and the low threshold for CEQA’s requirement that a project be studied in an EIR if there is a “fair argument” that it could cause a significant environmental impact. However, perhaps the more significant ruling is that the petitioner, an association of plastic bag manufacturers, was granted standing to oppose the City’s compliance with CEQA. Read more here.

The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area. Even though the previous approvals had expired, the court in Katzeff v. California Department of Forestry and Fire Protection, filed January 28, 2010, concluded that the adopted mitigation measures could not be deleted without determining the continuing need for the mitigation. Read more here.

On January 27, 2010 the Court of Appeal filed its decision in Los Angeles Unified School District v. County of Los Angeles et al., in which the Court analyzed the overlap between the Educational Revenue Augmentation Fund (ERAF) legislation in the Revenue and Taxation Code and the pass-through legislation applicable to redevelopment agencies found in the Health and Safety Code. In reversing the Los Angeles Superior Court and remanding for further proceedings, the Court determined that Los Angeles County had erroneously calculated the Los Angeles Unified School District’s percentage share of property taxes and thus subjected the District to an improper reduction in the amount of pass-through payments to which the District was entitled. Read more here.

In a decision published February 9, 2010 the California Court of Appeal, Fourth District, affirmed that criminal defendants, when making Pitchess motions, must submit a declaration or affidavit alleging a specific factual scenario that shows how the relevant police officer(s) committed misconduct. This has long been the applicable standard for successful Pitchess motions, which seek disclosure of confidential police officer personnel records to aid in the defendant’s case. However, the opinion, People v. Sanderson, also recognizes that where the specific facts alleged in support of the Pitchess motion call an officer’s truthfulness into question by merely denying portions of an incident report, the trial court is within its discretion to determine that the defendant failed to sufficiently allege the required factual scenario in support of the motion. In particular, the Court of Appeal affirmed the trial court’s finding that the Pitchess motion at issue did not present sufficient facts because the defendant had only disputed the portion of the police report that recited the defendant’s pre-arrest statements. The defendant’s denials thus raised a credibility question, but did not present an alternate version of facts, as required.

This decision is important because defendants bringing Pitchess motions often attempt to satisfy the specific factual scenario requirement by merely denying portions of an incident report. Now, the law is clear that a trial court has the discretion to find that a defendant has not shown good cause where the defendant does not present an alternative version of facts, but merely calls an officer’s credibility into question. Read the entire opinion here.