May 2010

Appellate Court Holds Redevelopment Agencies May Use Low/Mod Funds for any Authorized Purpose Provided there is a Nexus with Affordable Housing; Affirms Article 34 Exemption

May 3, 2010, by Meyers Nave

A California Court of Appeal recently held that redevelopment agencies may use Low and Moderate Income Housing Fund (LMIHF) monies to purchase and renovate buildings that will not themselves be used for affordable housing so long as there is a nexus between the expenditures and the goal of improving and increasing affordable housing. In the same case, the Court affirmed the applicability of an exemption from Article 34 voter approval requirements for privately-owned housing developments in which less than one-half of the units are restricted for occupancy by low-income households. Click here to read more.

Redevelopment Agency SERAF Payment Requirements Upheld

May 4, 2010, by Meyers Nave

In a setback for redevelopment agencies, Judge Lloyd Connelly ruled today to deny petitions seeking to overturn AB 26x4 which mandates a statewide contribution from redevelopment agencies equal to an aggregate $1.7 billion during fiscal year 2009-10 and an additional $350 million in fiscal year 2010-11. The 2009-10 payments are due to county auditor-controllers on May 10. In the ruling, the court denied the California Redevelopment Association’s (CRA) petition to stay the transfer of funds; however, the CRA Board of Directors has announced that it will file an appeal to the ruling, and may again seek a stay pending the appeal. Redevelopment agencies should be advised that as detailed in prior e-alerts, the legislation imposes a number of sanctions on redevelopment agencies that fail to timely pay or arrange for payment of the SERAF payment on the agency’s behalf. Meyers Nave is monitoring developments and will provide updated information via our Web site.

Pitchess Discovery Is Not Available for DMV Per Se Hearings and Should Be Limited to Criminal Cases Involving Allegations that Officer Used Excessive Force

May 5, 2010, by Meyers Nave

On Friday, April 23, 2010, a California appeals court ruled in Brown v. Valverde that motions filed pursuant to California Evidence Code section 1043 et seq. and Pitchess v. Superior Court (Pitchess motions) to request peace officer personnel records are not available in administrative per se hearings conducted by the California Department of Motor Vehicles (DMV) on driver’s license suspensions. In addition, the court noted that Pitchess motions should be limited to criminal cases involving allegations that the officer whose records are being sought used excessive force. The court reasoned that if challenging an officer's credibility provides a basis for obtaining the officer's personnel records, every party in a proceeding in which an officer would be a witness could obtain the officer's confidential personnel records by filing a Pitchess motion. Doing so, the court stated, would make the potential for discovery abuse "staggering."

Read more here.

California Supreme Court Takes a Bite Out of the Finality of Arbitration Awards

May 10, 2010, by Meyers Nave

A recent California Supreme Court decision has created an air of less certainty surrounding the finality of arbitration awards. Arbitration awards have been typically viewed as being final – not subject to court review unless there is evidence of fraud or corruption. But the California Supreme Court, in Pearson Dental Supplies v. Superior Court, carved out an exception for when a trial court would be permitted to vacate an arbitration award. The Court held that when an arbitrator’s ruling is based on a clear error of law which deprives an employee of a hearing on the merits of an unwaivable statutory employment claim, the arbitrator’s ruling may be vacated. Read more here.

California Supreme Court to Decide If ADA Bars Automatic Fee Awards to Successful Defendants in California Disability Cases

May 18, 2010, by Meyers Nave

The California Supreme Court has granted review in a case that will determine when public entities (and anyone else) can recover attorneys’ fees for successfully defending themselves against suits under California law by persons with disabilities regarding access to public facilities. The case is Jankey v. Lee, No. S180890. The issue, which has divided state and federal courts, is whether federal law—specifically, the ADA—pre-empts a California statute that requires an award of attorneys’ fees to any prevailing defendant in a suit seeking an injunction regarding access.

The California Disabled Persons Act (CDPA) authorizes suits for injunctive relief by anyone with a disability who is denied full use of public places or facilities, such as streets, sidewalks, transportation, and medical facilities. The provision authorizing injunctive actions automatically awards fees to a prevailing plaintiff or defendant—even if the suit was not frivolous. That differs from California disability laws governing damages actions, which never allow fees for defendants. And it differs from the federal ADA, which only permits fee awards against plaintiffs if their suits were frivolous.

The Ninth Circuit Court of Appeals held last year in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742 that awarding defendants fees for nonfrivolous injunctive actions under the CDPA is “inconsistent with, and therefore preempted by, the ADA.” In February, i n Jankey v. Lee (2010) 181 Cal.App.4th 1173 , rev. granted May 12, 2010, S180890, a California Court of Appeal disagreed. It noted that California disability law lets plaintiffs choose among many claims and remedies; they only risk a fee award if they choose to seek an injunction. And California disability law as a whole is more protective than the ADA, so preemption is improper.

The California Supreme Court will now decide for all California state courts which view is right. In the short run, its grant of review wipes the Court of Appeal opinion in Jankey off the books; defendants in state court no longer can cite it. In California federal courts, the Ninth Circuit’s view in Hubbard still governs. And it will still do so no matter what the California Supreme Court rules—unless the U.S. Supreme Court gets involved. It might if, in Jankey, the California Supreme Court rejects the Ninth Circuit’s view .

Will the Vacancy Control Provisions in Goleta's Rent Control Ordinance for Mobile Home Parks be Upheld in the Latest Court Battle?

May 25, 2010, by Dawn McIntosh

The Ninth Circuit is poised to reconsider its controversial decision that a vacancy control provision in a rent control ordinance for mobile home parks in the City of Goleta caused a taking of private property under the Fifth Amendment. The split decision by a three judge panel in Guggenheim v. City of Goleta, 2009 WL 3068152 (C.A.9 (Cal.)) generated considerable attention and concern from municipal governments and affordable housing advocates who believe the opinion could have a devastating effect on the ability of municipalities to fulfill the state mandate to provide affordable housing for all citizens. Briefs have been filed by both parties in the case as well as 28 amici (13 amicus briefs). Oral argument will be heard on June 22 in Pasadena, CA.

To see the vacated three judge panel opinion, click this link - Guggenheim panel opinion. To see Meyers Nave's two prior e-alerts on this case, click on these links - October 1, 2009 e-alert and  March 24, 2010 e-alert.

In a Good Opinion for Public Entities, Court Clarifies Police Officers' Duties to Injured Persons

May 26, 2010, by Meyers Nave

In an opinion published last week, the Court of Appeal for the Second District, found that California Highway Patrol officers who responded to an automobile accident were not liable to an injured person who refused treatment at the scene and left of her own accord. The plaintiff in Camp v. State of California, B209176, was a passenger in a car driven by a drunk driver, who drove off a country road near Santa Maria. Two CHP officers responded to the accident and repeatedly asked Camp if she required medical assistance; each time, she refused. A friend eventually carried Camp to another car and drove her away, but she was hospitalized a few hours later with severe spinal cord injuries. She sued the State, contending that the CHP officers’ alleged negligence in assessing her condition at the scene was a substantial cause of her injuries.

The jury awarded Camp nearly $2.7 million in damages. The Court of Appeal's opinion reversing the award thoroughly reviews the law on the duties of police officers who encounter injured persons. Ultimately, most important to the Court was its conclusion that, by merely assessing whether Camp was injured, the officers did not voluntarily assume a duty to provide her a particular level of protection.

This opinion is important and relevant to local law enforcement officers as well, because it confirms that officers owe no general duty of care in managing an accident scene. Officers only assume a duty of care if they engage in affirmative conduct that induces reliance by an injured person, or change the injured person's risk of harm.

Social Media Webinar

May 27, 2010, by Meyers Nave

Meyers Nave presents a complimentary webinar that will explore employers' rights and obligations with regard to monitoring employees in the workplace, including employee use of social media. Click image to enlarge and click here to register.

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