August 2010

California Supreme Court Recognizes Right to Bring Pitchess Motions Before Preliminary Hearings

In an opinion filed July 27, 2010, the California Supreme Court held that a criminal defendant has the right to bring a Pitchess motion before the preliminary hearing in the defendant's case. Pitchess motions are brought by criminal defendants to discover prior citizen complaints in peace officer personnel files alleging misconduct by peace officers that may be relevant to a defense. In the case, Galindo v. Superior Court, S170550, the Supreme Court disagreed with the trial court in the matter, which had held that Pitchess discovery is not normally available before a preliminary hearing because such discovery is relevant only to issues at trial, where the prosecution has to prove a defendant's guilt.

The Galindo opinion is important to law enforcement agencies and their efforts to protect the confidentiality of peace officer personnel files because it eliminates a strong procedural defense to Pitchess motions brought before a preliminary hearing has occurred.

Ninth Circuit Rejects Takings Challenge to Affordable Housing Regulations and Endangered Species Protections

The City of Cotati has defeated the Pacific Legal Foundation ("PLF") in a challenge to the City's affordable housing regulations and protections for the endangered California Tiger Salamander ("CTS").

In Mead v. City of Cotati, Ninth Circuit Case No. 09-15005, PLF sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission's decision to issue a permit for his project - (1) comply with the City's affordable housing regulations and (2) comply with guidance issued by the wildlife agencies for the protection of the endangered CTS.

The Pacific Legal Foundation argued that both conditions were exactions and therefore should be analyzed under the takings test set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). They then argued that equitable relief is an available remedy under the Nollan/Dolan test and asked the court to enjoin the City from enforcing the two conditions. The City, represented by Meyers Nave, disagreed and explained that (1) the issues were not ripe for review, (2) a generally applicable development fee is not a land use exaction, and 3) the proper test to determine whether a taking had occurred was the Penn Central test, not the Nollan/Dolan test.

During the litigation, PLF announced on its website that the lawsuit against the City of Cotati was ground zero in its national campaign to eradicate affordable housing regulations and to change takings law in favor of property owners. On July 22, in an unpublished opinion, the Ninth Circuit affirmed the dismissal of the case by the District Court for failure to state a viable claim and rejected PLF's entreaties to soften the takings standards for property owners. In reaching its conclusion, the court agreed with the City on all grounds. This decision reaffirms the viability of the ripeness doctrine and the limited application of the Nollan/Dolan takings test in the Ninth Circuit.

Three-Year Statute of Limitations Confirmed for Inverse Condemnation Causes of Action

In Bookout v. State of California, 2d Civil No. B214906, the California Court of Appeal, Second Appellate District, confirmed that a three-year statute of limitations applies to a cause of action against a public entity for damage to private property based upon a theory of inverse condemnation. In the case, the appellant filed suit against Caltrans, San Luis Obispo County, the Oceano Community Services District and Union Pacific Railroad in 2006, alleging that they had caused his property to flood, which resulted in damage sometime in 2002 or before. In finding at trial that the appellant's case was time-barred, the trial court noted that for inverse condemnation causes of action, the three-year limitations period under California Code of Civil Procedures section 338(j) generally applies, and a five-year statute of limitations applies only where a public entity has physically entered and exercised dominion and control over some portion of the plaintiff's property. Additionally, the trial court found that the appellant's property had not sustained repeated damage incident to a public improvement so as to avail the appellant of a longer limitations period. The Court of Appeal confirmed the trial court's findings in full. This case is a good result for public entities because it confirms that property owners must generally bring suit for inverse condemnation within three years of when the damage to their property occurs. Such lawsuits can be costly for public entities because plaintiffs who prevail in them are entitled to their attorneys' fees.