October 2011

Meyers Nave and the City of Oakland Successfully Obtain Preliminary Gang Injunction Against Norteños Gang Members

October 6, 2011, by Meyers Nave

In a closely-watched and high-profile case involving a civil gang injunction against the violent Norteños gang, Meyers Nave attorneys Tricia Hynes and Britt Strottman, working with the Oakland City Attorney's Office, succeeded in obtaining a civil gang injunction against Norteños gang members. Civil gang injunctions are court orders prohibiting a particular criminal street gang from engaging in various activities that are harmful and injurious to the community, its residents and business owners. The Honorable Robert Freedman of the Alameda County Superior Court granted the City of Oakland's request for a preliminary civil gang injunction order in full, relying upon all of the evidence and testimony submitted by the City. What this means is that the individually named gang members in the first phase of the litigation are now prevented from engaging in a broad range of activities, some of which are already crimes in their own right, and some of which are not crimes, per se, but have the real propensity to lead to crimes. Within a designated "Safety Zone" covering the neighborhoods where the gang operates, the enjoined individuals will be prohibited from associating with one another, intimidating witnesses, recruiting youth into the gang, knowingly being in the presence of drugs or firearms, wearing gang colors or being on the streets between the hours of 10 p.m. and 5 a.m.

Governor Brown Signs AB 646 - Fact Finding Now Required Before Imposing Last, Best and Final Offer

October 10, 2011, by Arthur A. Hartinger, Jesse Lad

Governor Brown signed AB 646 - which amends the Meyers-Milias-Brown Act ("MMBA") to require fact finding before an agency may unilaterally implement its last, best and final offer.

The bill prohibits a public agency from implementing its last, best and final offer until at least 10 days after the "fact finders" (a tri-partite panel with one "neutral" selected by the parties) submit written findings of fact and recommend terms of settlement.

Public Works Contractors are Bound by Contractual Claims Requirements

October 17, 2011, by Meyers Nave

Prime contractors that fail to complete public projects on time often claim that circumstances beyond their control caused the delay. Frequently, contractors making such claims fail to follow procedures mandated by the construction contract and project specifications to request more time to complete the project. Now, with a new California Court of Appeal decision, public entities have more authority to support their arguments that contractors in such circumstances are not entitled to additional compensation. In the case, Greg Opinski Construction, Inc. v. City of Oakdale, the Court held that liquidated damages were proper against the prime contractor, which claimed that liquidated damages were improper because the public entity was responsible for its delay in completing the project, because the contractor failed to follow procedures in the contract for claiming additional time for completion. Read the entire opinion, published October 6, 2011, here.

DWR Seeks To Aquire Temporary Easements to Conduct Soil Surveys for Delta Plan

October 19, 2011, by Claudia J. Gorham

Under California Eminent Domain Law, public entities may petition a court for an order to enter private property in order to take photographs, studies, surveys, tests, samplings, or engage in similar activities reasonably related to acquisition or use of the property for the proposed project use. (Cal. Code of Civil Procedure sections 1245.010 and after.) Such petitions are usually granted with a defined and limited scope of activities and timeline.

California's Department of Water Resources ("DWR") has been trying to enter private land to conduct soil surveys related to the Bay Delta Conservation Plan and the canal/tunnel water diversion project. DWR attempted to obtain permission to enter from the land owners. One-hundred and fifty Delta property owners who oppose the project filed lawsuits and a court limited DWR's ability to access the private land for the surveys. In response, DWR is taking the unusual step of moving forward with acquiring the temporary easements (and 16 square feet of land in full ownership) necessary to conduct the surveys and has made offers of compensation to the affected landowners. Such steps are necessary if DWR's Board ultimately decides to use eminent domain to acquire the easements and land.

Santa Suited Manager and His Bad Elves Did Not Create an Unlawful Hostile Work Environment

October 21, 2011, by Jesse Lad

In a lawsuit alleging hostile work environment harassment based on gender, a jury found that a former female employee at an advertising agency was subjected to unlawful harassment in violation of the California Fair Employment and Housing Act ("FEHA"). The plaintiff's hostile work environment claim was based on an email from an agency manager that referred to the size of her breasts, a different manager asking her about her personal and sex life, observing a management employee asking female co-workers to sit on his lap while dressed in a Santa Claus outfit at a Christmas party, and learning about alleged inappropriate comments directed towards other female employees that the plaintiff did not personally observe. The majority of these acts took place over the four year period before plaintiff resigned, and there was some evidence presented at trial that the plaintiff had used profanity at work and sent emails containing sexual references.

After the jury rendered a verdict in favor of the plaintiff on her hostile work environment claim, the Trial Court overturned the verdict. A California Court of Appeal affirmed, holding that the evidence presented by the plaintiff failed to support a claim of unlawful hostile work environment based on her gender. In so ruling the Court of Appeal noted that hostile work environment harassment is only unlawful when the harassing behavior is sufficiently severe or pervasive, and that the plaintiff failed to meet her burden because harassment that is occasional, isolated, sporadic or trivial is not actionable.

This decision is a helpful reminder of the high threshold that is necessary to prove an unlawful hostile work environment under the FEHA, as well as the fact that Courts will consider the specific circumstances in determining whether alleged acts of harassment are unlawful. To read the Court's decision in Brennan v. Townsend & O'Leary, Enterprises, Inc. 2011 Cal.App. Lexis 1309, click here.

Significant CEQA Streamlining Reform Bills Enacted

October 24, 2011, by Timothy D. Cremin,

Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012. SB 226 creates a new exemption for urban infill and renewable energy projects. It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California's land use, transportation and greenhouse gas (GHG) reduction policies. AB 900 shortens the Court review for CEQA challenges to certified "leadership projects" by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule. "Leadership projects" must be certified LEED silver or higher, be carbon neutral, create "high-wage, highly skilled" jobs, and result in an investment of at least $100 million in California's economy (among other requirements). SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.

SB 226 is likely to have the broadest effects for public agencies and private developers by facilitating urban infill projects. It will likely reduce the time and expense for CEQA review for infill projects. SB 226 expands the definition of urban infill projects, strengthens CEQA's tiering provisions, and provides that impacts from greenhouse gas emissions will not defeat the urban infill exemption under certain conditions.

Click here for a more detailed analysis of these recent CEQA amendments.

Public Project Payment Retention Capped at 5%

October 24, 2011, by Meyers Nave

On October 11, 2011, Governor Brown signed SB 293 into law, which will be codified as Public Contract Code Section 7201. SB 293 contained various provisions, but most important to public entities is a new 5% cap on the payment retention that public entities can withhold on public projects. Although no previous statutory authority dictated the amount of retention, a 10% retention on public projects is common. The retention cap could provide public entities with less leverage as they try to compel contractors to complete projects in a timely and satisfactory manner. SB 293 also addresses prompt payment between prime contractors and subcontractors, and recovery on payment bonds.

CARB Adopts Final GHG Cap-and-Trade Program

October 26, 2011, by Edward Grutzmacher, Jessica Mullan

After surviving a highly publicized ballot box challenge and lawsuit, the California Air Resources Board ("CARB") unanimously adopted a final greenhouse gas ("GHG") cap-and-trade program regulation. The cap-and-trade program is considered to be the cornerstone of CARB's implementation of California's landmark Global Warming Solutions Act of 2006, Assembly Bill 32 ("AB 32"). The first of CARB's cap-and-trade program auctions for allowances for use in 2013 will be held August 15 and November 14, 2012.

Major industrial sources and electric utilities must begin compliance with the cap-and-trade program in 2013. By 2015, distributors of transportation fuel and natural gas also become obligated to comply with cap-and-trade program requirements. In addition, the cap-and-trade program will likely create a market for CARB-certified offset projects in areas of livestock management, elimination of ozone depleting substances, urban forest projects, and U.S. Forest projects.

To view the full summary of the program, follow this link.

Governor Brown Releases Twelve-Point Pension Reform Plan

October 27, 2011, by Jesse Lad

On October 27, 2011, Governor Brown released a twelve-point plan to reform public pensions that he wants placed on the November 2012 ballot. Significant components of the plan include requiring new and current employees to transition to a contribution level of at least fifty percent of the cost of their pension benefits, creating a hybrid risk sharing system for new employees where they will participate in a defined benefit pension plan and defined contribution plan similar to a 401(k) plan, and setting the retirement age for most new non-public safety employees at the Social Security retirement age, which is presently 67. While the plan says it will apply to all California state, local, school and other public employers "as legally permissible," the plan does not provide any specific details about the extent to which it will apply to such agencies if it is approved.

To read a copy of the Governor's plan click here.