February 2011

Ninth Circuit Expounds on Burden Shifting Framework Established by the Supreme Court in City of Los Angeles v. Alameda Books

In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses. (See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) [“Alameda Books”].)

The burden-shifting framework provides that after a municipality supplies evidence supporting its rationale for passing an ordinance, the plaintiffs may attempt to “cast doubt” on the City’s evidence and rationale, after which the City may attempt to rehabilitate its rationale. (Alameda Books, 535 U.S. at 438-39.) Further, a municipality’s justification must not be that its regulation will reduce secondary effects simply by reducing speech proportionately. (Id. at 450, Justice Kennedy’s concurrence.)

The District Court, on remand several years after the Supreme Court’s ruling, employed the new framework and found that two expert declarations submitted by plaintiffs were sufficient to “cast doubt” on the City’s rationale for the ordinance. The declarations suggested that the City’s intent in passing the ordinance was to reduce secondary effects by closing arcades and therefore, proportionately reducing speech.

The Court found this testimony sufficient to shift the burden back to the City to rehabilitate its rationale, but then struck the primary evidence offered by the City for this purpose and granted summary judgment for plaintiffs.

The Ninth Circuit reversed. The Court explained that the District Court erred when it found the two declarations submitted by plaintiffs sufficient to “cast doubt” on the City’s rationale. The Court, in line with all of the key appellate decisions which have applied the Alameda Books framework, found that in order to successfully “cast doubt” on a municipality’s rationale for its adult ordinance, a plaintiff must offer not merely some evidence, but “actual and convincing” evidence. Such evidence must do more than challenge the government’s rationale; it must convincingly discredit the foundation upon which the government’s justification rests. If the City has multiple rationales in support of its regulation, a plaintiff must convincingly discredit all of the offered bases.

The Ninth Circuit found that plaintiffs’ declarations did not satisfy this standard because both declarants were biased, having a financial stake in the outcome of the decision, and neither offered any empirical evidence in support of their conclusions. The Court held that the frailty of such expert evidence must be examined at trial to determine whether it satisfies the heavy burden of “actual and convincing” evidence required under Alameda Books; such a determination is not appropriate on summary judgment.

This opinion reaffirms the holding in Alameda Books that an adult business bears a heavy evidentiary burden when challenging municipal regulations designed to ameliorate secondary effects of such businesses. If either an adult business or a City intends to rely on expert testimony in the second and third phases of the burden-shifting framework, either to “cast doubt” on the City’s grounds for the ordinance or to rehabilitate the ordinance, it must ensure that the expert testimony is sufficiently credible to meet the evidentiary burdens for summary judgment. For an adult business, expert testimony alone, without corroborating empirical evidence, may not do the trick on summary judgment and may require a full blown trial.

For more information on this case or other First Amendment matters, contact Dawn McIntosh or Deborah Fox at 800.464.3559.

Apply Now: EPA is Selecting Communities for Sustainability Technical Assistance

The EPA recently announced the Building Blocks Program, designed to help interested communities adopt sustainable planning methods and a collaborative effort between the U.S. Department of Housing and Urban Development, the U.S. Department of Transportation, and the U.S. Environmental Protection Agency (EPA). Chosen communities will receive technical assistance for the implementation of development approaches that “protect the environment, improve public health, create jobs, expand economic opportunity, and improve overall quality of life.” Technical assistance may include a memorandum including specific steps for the community to take towards sustainable development approaches, public engagement through a workshop, and/or consultation with city decisionmakers. The knowledge gained through the program may assist cities in implementing general plan updates or local climate action plans. Interested communities should submit a letter of interest that requests one of the listed technical tools by February 23, 2011.

Ninth Circuit Panel Makes it More Difficult for Public Agencies to Recover Attorneys Fees Expended in Defending Unmeritorious Civil Rights and Employment Discrimination Lawsuits

A three judge panel of the Ninth Circuit Court of Appeals issued an opinion which will make it more difficult for local governments to recover attorneys fees they expend defending against unmeritorious civil rights and employment discrimination lawsuits. The law has long been clear that while a plaintiff who prevails in such a lawsuit will almost always recover his or her attorneys fees, a prevailing defendant is only entitled to recover attorneys fees if the court finds the plaintiff’s claims were “unreasonable, frivolous, meritless or vexatious.” The new case, Fabbrini v. City of Dunsmuir, 2011 slip. op. 2317 (9th Cir 2011) addresses a defendant’s right to recover fees when a complaint contains both claims for which attorneys fees are available and non-frivolous claims for which fees are not recoverable.

In an earlier case, Tutor-Saliba Corp. v. City of Hailey 452 F.3d 1055 (9th Cir 2006), the Ninth Circuit had rejected an argument that the mere presence of some non-frivolous claims barred a defendant from recovering fees expended in defending the frivolous claims at least where there is a clear basis to determine what work was performed for what claims. However, the court left open the question of what to do “where frivolous claims are combined with non-frivolous claims and the claims are not sufficiently distinct.” Id. at 1064, fn. 4. In Fabbrini, the court appears to have held that those fees are not recoverable.

In Fabbrini, the plaintiff pursued state and federal law civil rights claims all of which were eventually dismissed. Even though the federal claims were dismissed, there was no finding that they were frivolous. The district court awarded the defendant the attorneys fees it incurred in prosecuting an anti-SLAPP motion to dismiss the state law based claims. In addition to those fees, the district court had also awarded approximately $ 8,000.00 for work that was performed that was related to the arguably non-frivolous federal claims but was also “inextricably intertwined with” the work that was performed defending the state law claims for which fees were available. The district court was following a long line of decisions holding that a plaintiff who prevails on claim for which fees are available can also recover fees for work preformed on claims where fees are not available if the claims are sufficiently intertwined such that “the time spent on the claims could not reasonably be divided” See, Armstrong v. Davis, 318 F.3d 965, 975 (9th Cir. 2003). Thus, for example, if a plaintiff were to pursue four civil rights claims but only prevail as to one, he or she could still recover fees for all of the time spent conducting discovery that would be relevant to all four claims. In Fabbrini, the court held this principle does not work in reverse.

In rejecting the award of the additional fees, the court adopted a per se rule that where there are non-frivolous federal civil rights claims present, attorneys fees cannot be awarded to a prevailing defendant unless the fees are “exclusively attributable” to the claims for which fees are available. For example, if a plaintiff includes four clearly frivolous claims with one arguably non-frivolous claim, Fabrinni gives rise to an argument that any discovery, investigative work or motion practice incurred defending against the frivolous claims is not recoverable if the work can also be related to the one non-frivolous claim. Thus the presence of a single non-frivolous claim can be used to defeat or severely limit a fees motion brought by a prevailing defendant even where the majority of the plaintiff’s case is clearly frivolous.

Local Agencies Now Required to Provide Electronic Copies of Project Documents to Contractor Plan Rooms

The California State legislature recently passed AB 2036, codified as Section 20103.7 of the Public Contract Code, which provides that "[a] local agency taking bids for the construction of a public work project or improvement, upon request from a contractor plan room service, must provide an electronic copy of a project's contract documents at no charge to the contractor plan room." Section 20103.7 of the Public Contract Code took effect January 1, 2011.

California has approximately 32 plan room services throughout the state which allow contractors to conveniently access public contract bid documents. These contractor plan rooms are entitled to a free electronic copy of local agency public contract documents upon request under Section 20103.7 of the Public Contract Code. The law does not specify the electronic form in which contract documents must be produced, or the timeframe for production. Nothing in section 20103.7 suggests that local agencies are required, at their expense, to create electronic contract documents in specialized formats. However, local agencies may wish to familiarize themselves with contractor plan room services and their preferred electronic formats, because larger bid pools may result from placement of bid documents with plan rooms. Timely submission of electronic documents to plan rooms may further assist agencies by encouraging a greater number of contractors to bid on agency projects.

Section 20103.7 does not require local agencies to provide all bidders electronic copies of contract documents at no charge - only contractor plan rooms, and only upon request.

Local agencies should consider taking steps such as the following to comply with the law and maintain control over the contract information sent to potential bidders:

  1. Include in electronic documents provided to plan rooms the date when the documents were prepared and a notice that all bidders are responsible for ensuring that their bid is submitted on the latest project documents, and that all addenda are included, by contacting the agency project manager.
  2. Include a watermark on the electronic documents provided to plan rooms so the agency can distinguish the electronic plan room copies from hard copies provided to bidders, and check whether bids submitted on electronic documents contain the latest addenda.
  3. In addition to providing electronic copies of project documents to contractor plan rooms, post them on your agency’s website and provide bidders with an opportunity to register to receive updates and addenda via e-mail.

These steps can help prevent award complications and bid disputes that may arise from submission of bids on incorrect or incomplete versions of project documents. We will continue to monitor developments in public contract bidding law and provide updates on further developments. For more information or assistance with other construction or contract matters contact Ben Reyes, Eric Danly or Eric Casher at 800.464.3559.

Proposed Legislation to Address Governor's Proposal to Destablish Redevelopment Agencies

Late in the afternoon on Wednesday, February 23rd, the State Department of Finance released language for a proposed budget trailer bill that addresses the Governor’s proposal to disestablish redevelopment agencies. The 26-page bill has not yet been formally introduced, but may be introduced and considered by the Budget Conference Committee within the next few days. It is likely that the bill will undergo modification prior to consideration by the legislature, and if adopted, the bill may be subject to legal challenge.

The proposed legislation states that it is an urgency measure that would take immediate effect upon approval by the legislature and signature by the Governor. Although urgency legislation normally requires approval by two-thirds of both the Senate and Assembly, it is possible that the legislation may be included as part of the budget package and become effective with majority approval and the Governor’s signature.

Go here to read the full summary of the Department of Finance proposed trailer bill as released on February 23rd.