General Municipal Litigation Update · OAK #4812-4277-1218 v8 General Municipal Litigation Update For Cases Reported Between August 1, 2012, through April 12, 2013 Kevin D. Siegel

League of California Cities 2013 Spring Conference Meritage Hotel, Napa

General Municipal Litigation Update

Wednesday, May 8, 2013 Opening General Session; 1:00 – 2:45 p.m.

Kevin D. Siegel, Burke, Williams & Sorensen

League of California Cities 2013 Spring Conference Meritage Hotel, Napa

Notes:______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

OAK #4812-4277-1218 v8

General MunicipalLitigation Update

For Cases Reported BetweenAugust 1, 2012, through April 12, 2013

Kevin D. SiegelBurke, Williams & Sorensen, LLP1901 Harrison Street, Suite 900

Oakland, California 94612510.273.8780

bwslaw.com

Thursday, May 9, 201310:45 a.m. – noon

League of California CitiesAnnual Conference

May 2013

TABLE OF CONTENTS

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OAK #4812-4277-1218 v8-i- League of California Cities

Annual Conference - May 2013

I. NATURE OF MUNICIPAL CORPORATIONS ...................................................... 1

Contract and Legislative Authority ........................................................................ 1

Summit Media, LLC v. City of Los Angeles(2012) 211 Cal.App.4th 921 (review denied Feb. 27, 2013)............ 1

City Authority to Direct Staff ................................................................................. 2

County of Los Angeles Department of Regional Planning v.Superior Court(2012) 208 Cal.App.4th 1264 .......................................................... 2

II. OPEN GOVERNMENT AND ETHICS.................................................................. 2

Conflicts of Interest and Ethics ............................................................................. 2

People ex rel. Harris v. Rizzo(March 20, 2013) -- Cal.App.4th --, 2013 WL 1139186 [Cityof Bell case] .................................................................................... 2

William Jefferson & Co. v. Board of Assessment and Appeals No. 3for Orange County(2012) 695 F.3d 960 (cert. denied March 4, 2013).......................... 4

City of Pleasanton v. Board of Administration of CALPERS(2012) 211 Cal.App.4th 522 ............................................................ 4

Council Meeting—Invocations .............................................................................. 4

Rubin v. City of Lancaster(9th Cir. March 26, 2013) -- F.3d -- , 2013 WL 1198095 ................. 4

Public Records Act ............................................................................................... 7

County of Los Angeles v. Superior Court(2012) 211 Cal.App.4th 57 (review denied Feb. 20, 2013).............. 7

Mincal Consumer Law Group v. Carlsbad Police Department(2013) 214 Cal.App.4th 259 ............................................................ 7

III. ELECTIONS ......................................................................................................... 8

IV. PERSONNEL ....................................................................................................... 8

V. FINANCE AND ECONOMIC DEVELOPMENT..................................................... 9

Redevelopment Agency Dissolution ..................................................................... 9

California Redevelopment Association v. Matosantos(2013) 212 Cal.App.4th 1457 .......................................................... 9

Taxation Authority............................................................................................... 11

TABLE OF CONTENTS(continued)

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City of Alhambra v. County of Los Angeles(2012) 55 Cal.4th 707 (rehearing denied Jan. 16, 2013)............... 11

Borikas v. Alameda Unified School District(2013) 214 Cal.App.4th 135 .......................................................... 12

Citizens Association of Sunset Beach v. Orange County LocalAgency Formation Commission(2012) 209 Cal.App.4th 1182 ........................................................ 14

Schmeer v. County of Los Angeles(2013) 213 Cal.App.4th 1310 ........................................................ 14

VI. MUNICIPAL SERVICES AND UTILITIES........................................................... 16

Utility Services .................................................................................................... 16

County of Los Angeles v. City of Los Angeles(2013) 214 Cal.App.4th 643 .......................................................... 16

Utility Rates ........................................................................................................ 17

City of Redding, California v. Federal Energy RegulatoryCommission(9th Cir. 2012) 693 F.3d 828 ......................................................... 17

VII. PUBLIC CONTRACTING ................................................................................... 17

Contracting for Services ..................................................................................... 17

Chung v. City of Monterey Park(2012) 210 Cal.App.4th 394 .......................................................... 17

VIII. PUBLIC PROPERTY.......................................................................................... 18

Regulating Activity on Streets and Sidewalks..................................................... 18

Valle Del Sol Incorporated v. Whiting(9th Cir. 2013) 709 F.3d 808 ......................................................... 18

California Tow Truck Association v. City and County of SanFrancisco(9th Cir. 2012) 693 F.3d 847 ......................................................... 19

Leasing Public Property...................................................................................... 20

Barnes-Wallace v. City of San Diego(9th Cir. 2012) 704 F.3d 1067 ....................................................... 20

Eminent Domain ................................................................................................. 21

County of Glenn v. Foley(2012) 212 Cal.App.4th 393 .......................................................... 21


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City of Corona v. Liston Brick Company of Corona(2012) 208 Cal.App.4th 536 .......................................................... 22

Council of San Benito County Governments v. Hollister Inn, Inc.(2012) 209 Cal.App.4th 473 .......................................................... 22

People ex rel. Dept. of Transportation v. Dry Canyon Enterprises,LLC(2012) 211 Cal.App.4th 486 .......................................................... 22

Adverse Possession ........................................................................................... 23

City of Santa Maria v. Adam(2012) 211 Cal.App.4th 266 (modified on denial of rehearingDec. 21, 2012; review denied Feb. 13, 2013) ............................... 23

IX. REGULATING BUSINESSES AND PERSONAL CONDUCT ............................ 24

Rent Control and Mobilehomes .......................................................................... 24

ABCO, LLC v. Eversley(2013) 213 Cal.App.4th 1092 ........................................................ 24

Vieira Enterprises, Inc. v. City of East Palo Alto(2012) 208 Cal.App.4th 584 .......................................................... 24

Regulating Speech ............................................................................................. 25

Prigmore v. City of Redding(2012) 211 Cal.App.4th 1322 ........................................................ 25

Charles v. City of Los Angeles(9th Cir. 2012) 697 F.3d 1146 (petition for certiorari filed Feb.25, 2013)....................................................................................... 26

Dex Media West, Inc. v. City of Seattle(9th Cir. 2012) 696 F.3d 952 ......................................................... 27

Reed v. Town of Gilbert, Ariz.(9th Cir. 2013) 707 F.3d 1057 ....................................................... 27

OSU Student Alliance v. Ray(9th Cir. 2012) 699 F.3d 1053 ....................................................... 29

X. LAND USE.......................................................................................................... 29

XI. PROTECTING THE ENVIRONMENT ................................................................ 31

Ecological Rights Foundation v. Pacific Gas and Electric Company(9th Cir. April 3, 2013) – F.3d --, 2013 WL 1319462 ..................... 31

XII. CODE ENFORCEMENT .................................................................................... 33


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Halajian v. D & B Towing(2012) 209 Cal.App.4th 1 .............................................................. 33

Lavan v. City of Los Angeles(9th Cir. 2012) 693 F.3d 1022 (petition for certiorari filed Feb.28, 2013)....................................................................................... 33

West Washington Properties, LLC v. California Department ofTransportation(2012) 210 Cal.App.4th 1136 ........................................................ 34

XIII. LIABILITY AND LITIGATION.............................................................................. 34

Government Claims Act (AKA Tort Claims Act).................................................. 34

DiClampli-Mintz v. County of Santa Clara(2012) 55 Cal.4th 983 ................................................................... 34

Perez v. Golden Empire Transit District(2012) 209 Cal.App.4th 1228 ........................................................ 35

Judicial Review by Writ of Mandate.................................................................... 35

Ogundare v. Department of Industrial Relations(2013) 214 Cal.App.4th 822 .......................................................... 35

Hansen v. Board of Registered Nursing(2012) 208 Cal.App.4th 664 .......................................................... 36

Takings............................................................................................................... 36

Arkansas Game and Fish Commission v. United States(2012) 133 S.Ct. 511..................................................................... 36

Municipal Liability ............................................................................................... 37

City of Costa Mesa v. D’Alessio Investments(2013) 214 Cal.App.4th 358 .......................................................... 37

Bell v. City of Boise(9th Cir. 2013) 709 F.3d 890 ......................................................... 38

Melendres v. Arapaio(9th Cir. 2012) 695 F.3d 990 ......................................................... 39

Bjorndal v. Superior Court(2012) 211 Cal.App.4th 1100 ........................................................ 40

Hall v. City of Los Angeles(9th Cir. 2012) 697 F.3d 1059 (petition for rehearing en bancfiled) .............................................................................................. 40


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Edgerly v. City and County of San Francisco(9th Cir. April 10, 2013) -- F.3d --, 13 C.D.O.S. 3870................... 41

Liability for Attorney’s Fees................................................................................. 42

Lefemine v. Wideman(Nov. 5, 2012) 133 S.Ct. 9 ............................................................ 42

Cates v. Chiang(2013) 213 Cal.App.4th 791 (rehearing denied Feb. 26,2013)............................................................................................. 42

Jankey v. Song Koo Lee(2012) 55 Cal.4th 1038 ................................................................. 43

OAK #4812-4277-1218 v8-1- League of California Cities


I. NATURE OF MUNICIPAL CORPORATIONS

Contract and Legislative Authority

Summit Media, LLC v. City of Los Angeles (2012) 211 Cal.App.4th 921 (reviewdenied Feb. 27, 2013)

Take-Away: Settlement agreements may not exempt party from applicable ordinances.

Facts: City entered settlement agreement with CBS Outdoor Inc. and Clear ChannelOutdoor, Inc. (Real Parties) resolving litigation regarding regulation of off-site signs(e.g., billboards). Plaintiff filed suit against City and Real Parties challenging settlementagreement, alleging agreement unlawfully contracted-away the City’s police power byexempting Real Parties from applicable ordinances (including zoning ordinances andbuilding permit regulations). Real Parties offered various defenses, including thatPlaintiff was barred from challenging the settlement agreement because it had beenapproved in yet another suit, a “reverse validation action” filed by a third party regardinga sign fee ordinance. The trial court granted Plaintiff’s motion for a writ of mandate butdeclined to revoke the permits issued pursuant to the settlement agreement. The Courtof Appeal ruled that the permits also must be revoked.

Holdings and Analysis:

1. Judgment in reverse validation action was conclusive as to the sign fee ordinanceissues in that case. It did not extend to the validity of the settlement agreement andsubject regulations.

2. Plaintiff’s suit was not barred by failure to administratively appeal the issuance ofsign permits to Real Parties. The City had considered itself bound to comply withthe settlement agreement. It would have been futile to pursue an administrativeremedy contrary to the agreement prior to the judicial ruling that the settlementagreement was unenforceable.

3. Settlement agreement was void. The agreement was an ultra vires effort to“contractually exempt[] settlement parties from ordinances and regulations that applyto everyone else.”

4. The trial court erred by not revoking the permits, which were unambiguouslyprohibited by the City’s ordinances. Equitable estoppel did not apply. The permitswere issued contrary to laws adopted for the benefit of the public, and this was notan extraordinary case where the injustice is great and the precedent set by estoppelwould be narrow.



Costa Mesa City Employees’ Association v. City of Costa Mesa (2012) 209Cal.App.4th 298 (review denied Nov. 28, 2012)

In Brief: State law permits general law cities to contract-out for special services (e.g.,services in legal, financial, engineering or administrative matters) but limits theirauthority to contract out for “nonspecial” services that city staff provide. See Labor andEmployment Litigation Update for discussion.

City Authority to Direct Staff

County of Los Angeles Department of Regional Planning v. Superior Court (2012)208 Cal.App.4th 1264

Take-Away: Courts may not appoint public agency employees to serve as expertwitnesses over agency’s objection.

Facts: Parolees filed suit against State to enjoin sex offender regulations. Counsel forparolees moved court to appoint county employees to serve as parolees’ expertwitnesses. Trial court granted motion and rejected county’s subsequent motion tovacate. Court of Appeal reversed.


1. Public agency “has right to direct the tasks undertaken by its employees,” and theCourt may not appoint public agency employees to serve as expert witnesses overagency’s objection.

2. The appointment also violated the County’s conflict of interest rule, included in theCounty Code, though this conclusion was not necessary to the disposition of thecase.

II. OPEN GOVERNMENT AND ETHICS

Conflicts of Interest and Ethics

People ex rel. Harris v. Rizzo (March 20, 2013) -- Cal.App.4th --, 2013 WL 1139186[City of Bell case]

Take-Away: Attorney General may, on behalf of a city, sue corrupt councilmembersand staff who loot city coffers, including for breach of fiduciary duties and restitution.

Facts: Councilmembers, Chief Administrative Officer Rizzo (“CAO”), Assistant CAOSpacia and Police Chief Adams, of the City of Bell, a charter city, arranged to paythemselves outrageously high salaries and benefits (e.g., for CAO: approximately$800,000 plus 143 days paid time off, and double service credit for CALPERS; for



councilmembers: $96,000; for Police Chief: approximately $450,000). City Counciladopted an “Ordinance Limiting Compensation for Members of City Council” thatactually doubled their compensation. Staff prepared, at CAO’s direction, aMemorandum which misstated the Councilmembers’ and the CAO’s salaries by factorsof ten and three, respectively. The AG filed suit alleging: (1) waste of public fundsunder CCP section 526a, against the City as well as the Councilmembers, CAO,Assistant CAO and Police Chief, (2) negligence in authorizing waste, against the CAOand the Councilmembers, (3) fraud in connection with the Ordinance, against the CAOand the Councilmembers, (4) fraud in connection with the Memorandum, against theCAO, (5) violation of Gov. Code section 1090, against the CAO and Assistant CAO, and(6) breach of fiduciary duty, against all defendants. The AG sought restitution on behalfof the City. The defendants demurred, asserting that the AG lacked standing, immunityfor legislative acts, and that the separation of powers doctrine precluded judicialinterference. The trial court sustained the defendants’ demurrers under the lattertheories. The Court of Appeal reversed.


1. The AG has standing to sue on behalf of the City.

a. As the chief law officer of the State, the AG is empowered to file suit to protectpublic rights and interests and to ensure laws are adequately and uniformlyenforced. (Cal. Const., art. V, § 13.)

b. The AG properly joined the City as a defendant because it could not have namedthe City as a plaintiff at the time suit was filed. (CCP § 382.) Trial court shouldnow grant AG leave to amend so it can name the City as plaintiff.

2. AG did not need to present claim under Tort Claims Act as a prerequisite to suitbecause (a) AG is seeking restitution, not damages, and (b) it would be ludicrous forthe AG to present a claim to the City on behalf of the City.

3. Separation of powers, legislative immunity and discretionary act immunity do not barcauses of action based on ultra vires acts. As applied to the six causes of action:

a. Government Waste: The City, the true plaintiff, has standing to sue to seekrestitution for Government waste, though not as a taxpayer under CCP § 526a.The proper cause of action “is one to declare void ultra vires ordinances andcontracts to obtain restitution ....” The City Charter established substantivestandards for salaries and procedural requirements for the adoption of contracts.If the defendants violated these provisions, they are liable.

b. Negligence: The courts cannot judge the wisdom of legislative action, onlywhether the action was taken within the legal parameters. Thus, legislativeimmunity bars this cause of action. The AG may seek restitution under the othertheories, not damages for negligence.



c. Fraud re: Ordinance: Civ. Code § 47(b)(1) provides an absolute privilege for theadoption of ordinances. Thus, legislative immunity bars this cause of action.

d. Fraud re: Memorandum: AG may plead a cause of action for fraud based on thepreparation and dissemination of the Memorandum which mislead the publicabout salaries, but AG did not sufficiently plead the justifiable reliance causingdamages. Leave to amend should be granted to allow AG to try to pleadsufficient facts.

e. Gov. Code § 1090: The AG properly alleged the CAO and Assistant CAOengaged in self dealing. The defendants cannot rely on Gov. Code § 1091.5,which provides an exemption where the contract is with another governmentalentity that employs the defendant officer or employee.

f. Breach of fiduciary duty: The CAO, Assistant CAO and Councilmembers owefiduciary duties, and claims were properly stated against them. As to the PoliceChief, he did not owe a fiduciary duty when before he was hired.

William Jefferson & Co. v. Board of Assessment and Appeals No. 3 for OrangeCounty (2012) 695 F.3d 960 (cert. denied March 4, 2013)

Take-Away: A public law office may represent both agency staff who advocate aposition before an administrative decision-making body and the decision-making body,as long as the office maintains an ethical wall.

Facts: County counsel’s office represented both the county assessor and theassessment appeals board--through separate deputy county counsel separated by anethical wall. Taxpayer claimed dual representation violated its procedural due processrights. District Court rejected claim. Court of Appeals affirmed.

Holdings and Analysis: No due process violation, as long as the county counsel’s officemaintains an ethical wall between the attorneys who represent the assessor and theappeals board.

City of Pleasanton v. Board of Administration of CALPERS (2012) 211 Cal.App.4th522

In Brief: In quasi-adjudicative matters before an agency, staff and counsel whorepresent their positions to the initial decision-maker may also present their positions tothe final decision-maker on an administrative appeal without violating due process, aslong as they do not have ex parte contacts or exercise any discretion or control over thefinal decision-makers. See Labor and Employment Litigation Update for discussion.



Council Meeting—Invocations

Rubin v. City of Lancaster (9th Cir. March 26, 2013) -- F.3d -- , 2013 WL 1198095

Take-Away: Neutral policies permitting volunteers to offer invocations at Councilmeetings do not violate First Amendment.

Facts:

City has for many years opened Council meetings with a citizen-led invocation. In 2009,ACLU sent a cease-and-desist letter. City responded by developing a written invocationpolicy. Policy provides for (1) City Clerk to create and maintain a comprehensivedatabase of local congregations of all faiths, (2) City Clerk to mail invitations tocongregations to open Council meeting with invocation along with an explanation thatthe opportunity is voluntary, for advancing spirit of respect and ecumenism, and to beused neither for purposes of conversion nor to disparage any other faith. The policyfurther states that it is not intended to be implemented or construed as the City Council'sendorsement of any religion. A congregation may only provide three non-consecutiveinvocations per year. The electorate approved the policy in a non-binding measure.Since the adoption of the policy, the vast majority of the invocations were Christian. A

few were not, including invocations by a Sikh, Muslim and a self-described"metaphysicist."

Plaintiffs, one Jew and one Christian, attended a City Council meeting at which theinvocation was delivered by a former mayor who asked God to bless the councilmembers and offered the prayer in the "holy and righteous name of Jesus." Plaintiffswere "upset and offended." They filed suit in state court alleging violations of the FirstAmendment and the state corollary, Article 1, Section 4 of the California Constitution.The City removed to federal court. After a bench trial, the District Court denied theclaims. The Court of Appeals affirmed.


1. The prayer did not violate the First Amendment by its explicit reference to Jesus,pursuant to Plaintiff's theory that the Establishment Clause forbids sectarianreferences in legislative prayer. Rather, the City did not violate the First Amendmentbecause the prayer opportunities have not been exploited to proselytize, todisparage any religion, or to affiliate the government with any faith.

a. Marsh v. Chambers (1983) 463 U.S. 783, is the controlling precedent. In Marsh,the Court pushed aside the three-pronged analysis of Lemon v. Kurtzman (1971)403 U.S. 602 in favor of a history-based approach. The Marsh Court concludedthat the Nebraska Legislature's long tradition of opening sessions with a prayerled by the State's chaplain did not violate the Establishment Clause in light ofsimilar historical practices, including the Continental Congress, and thechaplain's practice of not proselytizing or disparaging other faiths. In asubsequent Supreme Court case regarding an annual display of a creche andmenorah (County of Allegheny v. ACLU (1989) 492 U.S. 573), the Court reverted



to the Lemon test and noted that the "unique history" of legislative prayer doesnot, standing alone, suffice under the Establishment Clause and noted that theMarsh decision was also founded on the fact that the chaplain "had removed allreferences to Christ."

b. County of Allegheny did not supersede Marsh and impose a requirement that aninvocation cannot offer sectarian references, e.g., to Jesus. The long history,and unabated practice of legislative prayer, shows that the Marsh analysissurvives. Under this controlling precedent, the courts must review the practicesover time to determine if the prayer opportunities have been exploited toproselytize, to disparage any religion, or to affiliate the government with any faith.

c. The subject prayer did not go too far by mentioning Jesus.

2. The policy does not violate the First Amendment.

a. The courts must view the policy “in its entirety,” over time.

b. The Court rejected the Second and Fourth Circuit’s articulation of this inquiry,which, respectively, evaluate “the practical effects of the invocations” andwhether the practices when viewed by “an ordinary, reasonable observer,conveyed” favoritism of one religion over another.

c. The “touchstone” of the Marsh analysis is whether “the government has placedits imprimatur, deliberately or by implication, on any one faith or religion.” Thisrequires close review of the government’s action, rather than the effect (thoughhad Marsh followed the Lemon test, the effect on a reasonable person would bean important part of the inquiry).

d. The City has “taken every reasonable precaution” to avoid endorsement ofreligion, including (i) adopting safeguards into the written policy, (ii) implementingcomprehensive and neutral practices, and (iii) stressing “to the public and toinvited prayer-givers[] the policy’s non-sectarian aims.”

3. The City has not unlawfully applied the policy by permitting too many Christianinvocations.

a. The issue is not the content of the prayers, but that the City has not chosen thecontent.

b. There is not governmental endorsement of a religion merely because the majorityof the invocations, delivered by volunteers, have been Christian.

4. The City cannot be compelled to ban prayers in Jesus’ name, as requested byPlaintiffs. That would improperly place the government and the courts in the positionof coauthoring prayers and reviewing them for content.



5. The California Constitution’s corollary provision “mimics the Establishment Clause”and provides no additional basis for Plaintiffs’ claims.

Public Records Act

County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57 (review deniedFeb. 20, 2013)

Take-Away: Public agency’s outside counsel’s billing records, redacted of privilegedand attorney work product information, are public records.

Facts: Attorney representing plaintiffs in suit against County submitted Public RecordsAct (PRA) request for billing records of County’s outside counsel. County denied therequest, citing “pending litigation exception” of Government Code section 6254(b),attorney-client privilege and attorney work product doctrine. Attorney petitioned theSuperior Court. Trial court ordered disclosure. County petitioned the Court of Appeal,asserting pending litigation exception only. Court of Appeal affirmed.


1. Public agency bears burden of proving exception to disclosure under the PRA.

2. Pending litigation exception applies only to records “specifically prepared for use inlitigation.” Where a record is prepared for a “dual purpose,” the “dominant purpose”behind the preparation determines whether it is a public record.

3. The dominant purpose for preparing the billing records was not for use in thelitigation. Thus, the redacted billing records were public records.

Mincal Consumer Law Group v. Carlsbad Police Department (2013) 214Cal.App.4th 259

Take-Away: Challenge to trial court order rejecting Public Records Act (PRA) claimmust be by petition for writ filed within 20 days of notice of entry of order.

Facts: Plaintiff sought police department records regarding reports of identity theft.Police department did not, and purportedly could not, produce records more than 30days old (as records were regularly destroyed after 30 days). Plaintiff alleged violationsof PRA. Trial court ruled for the city. Plaintiff filed notice of appeal 59 days afterissuance of order.

Holdings and Analysis: Appeal was untimely.

1. General rule: a notice of appeal must be filed within 60 days of notice of entry ofjudgment.



2. But the PRA provides that a trial court order upholding an agency’s refusal todisclose a record is “immediately reviewable by petition to the appellate court for theissuance of an extraordinary writ.” (Gov. Code § 6259(a).)

a. This is the exclusive means to challenge such a decision. It “unambiguouslyforecloses an appeal and instead expressly authorizes a writ as the sole andexclusive means to challenge the trial court’s ruling.”

b. The petition to the appellate court must be filed within 20 days of the notice ofentry of order, or within another 20 days if permitted by the trial court for goodcause. (Gov. Code § 6259(a).)

i. The time limit is jurisdictional.

ii. Plaintiff established no compelling reason to disregard the time limit.

III. ELECTIONS

No Reported Cases

IV. PERSONNEL

Richardson v. City and County of San Francisco (2013) 214 Cal.App.4th 671

In Brief: Statute of limitations tolled for misconduct claims against police officer whilecriminal investigation pending. See Labor and Employment Ligation Update fordiscussion.

Fields v. State of California (2012) 209 Cal.App.4th 1390

In Brief: Government employee driving to or from a medical appointment for a work-related injury not acting within the scope of employment. See Labor and EmploymentLitigation Update for discussion.

Ellins v. City of Sierra Madre (9th Cir. March 22, 2013) – F.3d – , 2013 WL 1180299

In Brief: Summary judgment improperly granted regarding police officer’s FirstAmendment retaliation claim against Police Chief and City, which was based on claimthat Chief had delayed execution of POST certificate entitling Plaintiff to pay raise inretaliation for Plaintiff’s role in union’s no confidence vote in Chief, a matter of publicconcern. See Labor and Employment Ligation Update for discussion.



Sonoma County Association of Retired Employees v. Sonoma County (9th Cir.2013) 708 F.3d 1109

In Brief: Plaintiff’s complaint failed to state a cause of action for an implied contract, butit should have been permitted leave to amend. Decision follows Retired EmployeesAssn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171 (holding acounty may be bound by an implied contract with its employees regarding retirementbenefits). See Labor and Employment Litigation Update for discussion

Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962

In Brief: Strenuous physical activities are essential duties of sworn police officers, eventhose assigned to administrative positions. Thus, police departments do notdiscriminate on the basis of disability of failure to provide reasonable accommodations,under FEHA, when they cannot offer limited duty positions to an officer with medicalrestrictions. See Labor and Employment Litigation Update for discussion.

Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191

In Brief: Labor Code section 1102.5(c), a whistleblower statute, protects an employeefrom adverse employment actions for reporting violations of state law, not municipal law.

See Labor and Employment Litigation Update for discussion.

Requa v. the Regents of the University of California (2012) 213 Cal.App.4th 213

In Brief: Governments may be bound by implied contract to provide retirement benefits,even in the absence of an express contractual obligation, as the Supreme Court held inn Retired Employees Assn. of Orange County, Inc. v. County of Orange. See Laborand Employment Update for discussion.

International Brotherhood v. City of Redding (2012) 210 Cal.App.4th 1114(rehearing denied Nov. 30, 2012; review denied Jan. 16, 2013)

In Brief: MOU supported claim City obligated to provide future retirement insurancebenefit. See Labor and Employment Update for discussion.

V. FINANCE AND ECONOMIC DEVELOPMENT

Redevelopment Agency Dissolution

California Redevelopment Association v. Matosantos (2013) 212 Cal.App.4th 1457

Take-Away: The Legislature had authority to direct redevelopment agencies to depositproperty tax revenues into supplemental educational revenue augmentation funds.



Facts: In 1971, the Supreme Court invalidated on equal protection grounds the systemfor funding local school districts which was based on local tax property taxes (Serrano v.Priest). In response, the State created a “Byzantine” financing system in which theState became the “principal backstop for local school districts” in order to equalizefunding. Propositions 13 and 98 further complicated the system (including by cappingproperty tax increases and ensuring minimum school district funding levels). In themeantime, redevelopment agencies became increasingly powerful “in the zero-sumgame for allocating scarce funding, at the expense of school districts and other localagencies.” The agencies’ “diversion of funds” required the State to increase itsallocation of General Fund monies to school districts in order to comply with Proposition98. Among the State’s responses was AB 4X 26, at issue here. In 2009, theLegislature adopted AB 4X 26, adding several sections to the Health and Safety Code.Sections 33690 and 33690.5 required redevelopment agencies to remit $1.7 billion tosupplemental educational revenue augmentation funds (SERAFs) by May 2010, to bedistributed to school districts. These funds are in lieu of property tax revenues that theState would otherwise convey to school districts, resulting in no net benefit to schooldistricts. Section 33690.5 required redevelopment agencies to remit $350 million toSERAFs by May 2011, again in lieu of State funding for school districts. The CaliforniaRedevelopment Association and two redevelopment agencies filed a petition for a writof mandate to block implementation of AB 4X 26, alleging it violates, among otherthings, Article XVI, section 16 of the Constitution and Proposition 13 and 1A (thepurpose of which was to prohibit the Legislature from raiding local property taxallocations to balance the budget). The trial court ruled for Respondents. Thereafter,the voters adopted Proposition 22 (which purported to extend the protections ofProposition 1A to redevelopment agencies), the Legislature adopted AB 1X 26 and 1X27 (to reduce or eliminate “the diversion of property taxes from school districts toredevelopment agencies”), and the Supreme Court ruled that AB 1X 26 dissolvedredevelopment agencies and that AB 1X 27 (the alternative to dissolution) violatedProposition 22. The Court of Appeal affirmed.


1. AB 4X 26 does not violate Article XVI, section 16, of the Constitution.

a. Article XVI, section 16 provides for funding of redevelopment agencies byproperty tax increment and requires redevelopment agencies to use the funds forredevelopment purposes. Plaintiffs contended that this provision prohibits theState from taking the tax increment to satisfy its other obligations.

b. In its ruling upholding the dissolution of redevelopment agencies (“Matosantos”),the Supreme Court held Article XVI, section 16 posed no impediment to theLegislature’s action. The provision authorized the Legislature to grantredevelopment agencies the authority to use tax increment, as well as the powerto limit or withdraw that authorization.

c. Proposition 22 does not support Plaintiffs’ position. While Proposition 22declared that Article XVI, section 16 “requires” property taxes to be allocated toredevelopment agencies and “prohibits” the State from reallocating the funds, the



Supreme Court ruled in Matosantos that these were “immaterial misstatements oflaw.”

d. Thus, Article XVI, section 16 “imposes no constitutional barrier to the Legislaturereallocating tax increment funds from redevelopment agencies to other statepurposes, just as the Supreme Court concluded in Matosantos that article XVI,section 16, imposes no barrier to the Legislature dissolving redevelopmentagencies altogether.”

2. AB 4X 26 does not violate Proposition 1A.

a. Proposition 1A protects cities, counties and special districts, but notredevelopment agencies, from State action to reallocate property taxes. AB 4X26 only applies to redevelopment agencies.

b. That cities will have to backfill for the reallocated funds does not supportPlaintiffs’ position.

3. The contention that AB 4X 26 impairs contracts with bondholders was premature.

4. AB 4X 26 does not violate equal protection. The Legislature is merely juggling thefunding sources for school districts, resulting in no net increase in school districtfunding. Thus, the Legislature has not created disparate classifications.

5. AB 4X 26 does not violate Proposition 98. The funds may be counted towards theState’s Proposition 98 obligations.

6. AB 4X 26 is consistent with Proposition 13. The State is not taking money fromredevelopment agencies for its own purposes (even though the State benefits bylowering its contribution to school districts). Rather, it is redistributing funds amonglocal agencies, as permitted by Proposition 13.

7. AB 4X 26 is not a gift of public funds, but “a reallocation of funds by the Legislaturefrom one public purpose to another.” The redevelopment agency funds were notdedicated to a specific purpose, but were general property taxes that can bereallocated among agencies.

Taxation Authority

City of Alhambra v. County of Los Angeles (2012) 55 Cal.4th 707 (rehearingdenied Jan. 16, 2013)

Take-Away: Counties may collect property tax administration fees for administeringTriple Flip and VLF Swap only for the actual, incremental cost of providing thoseservices. They may not include the diverted funds as part of a city’s base year taxeswhen calculating administrative costs.

Facts:



Forty-seven cities challenged the County’s calculation of property tax administrationfees (PTAF). Revenue and Taxation Code sections 96 et seq. (commonly known as theAB 8 allocation system) provide the methodology for calculating an agency’s propertytax base, which in turn provides the base for a county’s calculation of the local agency’sproportional share of the PTAF (pursuant to section 95.3). (A local agency’s propertytax base for the current year is the prior year’s base plus its tax increment for thecurrent year.)

In 1992 and 1993, the Legislature created the Educational Revenue Augmentation Fund(ERAF) as a means to capture local agency tax revenue to fund school districts.Revenue and Taxation Code section 95.3(b)(1) exempts a local agency’s ERAFpayments from the agency’s PTAF. Specifically, it provides that when a countycalculates a local agency’s proportional share of the costs for administering propertytaxes, “those proportional shares determined with respect to a school entity or ERAF”are exempt.

In 2004, the electorate approved the so-called “Triple Flip” whereby 0.25% of local salesand use taxes are diverted to the State for bond repayment, property tax revenue thatwould have been allocated to ERAF is conveyed to local agencies, and the State’sGeneral Fund backfills for ERAF shortfalls. In addition, the State created the so-calledVehicle License Fee (VLF) Swap, which diverted property tax revenue to local agenciesto backfill for reduced VLFs. The Legislature also adopted Revenue and Taxation Codesection 97.75, which provides that counties “shall not impose a fee, charge or otherlevy, nor reduce a city’s allocation of ad valorem property tax revenue,” foradministering the Triple Flip or VLF Swap.

The County of Los Angeles (along with many other counties) included the Triple Flipand VLF Swap revenues in city base year calculations for the purpose of apportioningadministrative costs. The Court of Appeal ruled for the Cities. The Supreme Courtaffirmed.

Holdings and Analysis: Section 97.75 does not authorize the County to collect PTAF foradministering the Triple Flip and VLF Swap under the County’s methodology, whichincluded the diverted funds as part of the base year calculations.

1. Section 97.75 is not ambiguous; the plain text does not support the County’smethodology of including Triple Flip and VLF funds in the base year calculation. Thestatute only permits the County to charge administration fees for actual, incremental“services” associated with its administration of the Flip and Swap.

2. In adopting the Triple Flip and VLF Swap, the Legislature did not express any intentto change the ERAF exemption for PTAF calculations. Rather, provisions of theTriple Flip and VLF Swap legislation show the Legislature intended to preserve thestatus quo with respect to the AB 8 property tax revenue allocation andadministrative fees system. Thus, the annual AB 8 property tax allocation systemremains intact, including for the purpose of calculating PTAF.



Borikas v. Alameda Unified School District (2013) 214 Cal.App.4th 135

Take-Away: School districts may not tax properties at different rates based uponclassifications (e.g., residential v. commercial), pursuant to language of GovernmentCode section 57009 which requires uniformity of taxation. Similar statutes limit specialdistricts’ taxation authority. However, equal protection challenges to tax classifications“must negate any conceivable basis [that] might support the classification.”

Facts: School District imposed parcel tax, pursuant to voter approval of Measure H.Measure H taxes residential and commercial properties at different rates and exemptsowners over 65 and owners who receive Supplemental Social Security Income. Plaintiffalleged the School District violated Government Code section 50079 (which authorizesschool districts to impose qualified special taxes, such as parcel taxes) and Plaintiff’sequal protection rights. The trial court ruled for the School District. The Court of Appealreversed.


1. Measure H violates Government Code section 50079.

a. Measure H was enacted in response to Proposition 62 (adopted in 1986, as astatutory measure), by which the electorate specified that neither Proposition 13nor the subsequent legislation authorized local agencies to levy taxes absentauthorization from the State Legislature and voter approval.

b. Subdivision (a) of Government Code section 50079 authorized school districts toimpose the parcel tax, but subdivision (b) qualified the authority by requiringschool districts to impose special taxes uniformly to properties and persons.Thus, the plain meaning of the statute prohibited the unequal taxes, and theDistrict’s reading improperly treated subdivision (b) as surplusage.

c. Subdivision (b) of section 57009 goes beyond the limits of equal protection tolimit school district authority to impose special taxes.

d. While the plain text of the statute was dispositive, the Court also analyzed thelegislative history, which showed that the qualifying language of the statute islanguage of limitation.

e. Similar statutes enacted in the wake of Proposition 62, empowering specialdistricts to impose parcel taxes, include similar language. These provisions, andtheir legislative histories, show the subdivision (b) provides language of limitation.

2. Measure H did not violate Plaintiff’s equal protection rights.

a. The threshold for a tax to pass an equal protection challenge “is very low.” Thechallenger “must negate any conceivable basis [that] might support theclassification.” The Court cited several cases in which classifications had beenupheld (e.g., regarding fixtures and personal property).



b. In tax matters, the state Constitution’s guarantee of equal protection is“substantially the same” as the federal Constitution’s guarantee.

Citizens Association of Sunset Beach v. Orange County Local Agency FormationCommission (2012) 209 Cal.App.4th 1182

Take-Away: Proposition 218 does not provide residents of annexed territory a right tovote on existing municipal taxes.

Facts: City obtained LAFCO approval to annex unincorporated land, without a votepursuant to “island annexation” statute, Gov. Code § 56375.3. Government Codesection 57330 provides that annexed territory is subject to annexing city’s taxes.Plaintiff, an association of residents from the unincorporated land, alleged thatProposition 218 (Articles XIIIC and XIIID of the California Constitution) prohibitedannexation or required a vote of the citizens of annexed area. The Trial court deniedwrit petition. The Court of Appeal affirmed.

Holding and Analysis: Proposition 218 did not apply.

1. Proposition 218 was not intended to apply to annexations.

a. The purposes of Proposition 218 include preventing governments fromcircumventing Proposition 13 (e.g., by imposing assessments, without a vote, inlieu of taxes) and requiring votes for all taxes, whether general or special taxes.If the intent had been to require votes in connection with annexations, it wouldhave been included in the Proposition. “Just as the silence of a dog trained tobark at intruders suggests the absence of intruders, this silence speaks loudly.”

b. Plaintiff’s position would create apparently unintended structural complications.For example, a majority of the electorate in the annexed territory would have toapprove the general taxes, a super majority would have to approve the specialtaxes, and the majority would have to approve the annexation (unless the islandannexation statute applied).

2. The text of Proposition 218 undermines Plaintiff’s position. It discusses theimposition, extension or increase of taxes, which do not apply to an annexationsituation. Imposed usually refers to the first enactment of the tax, extend usuallyrefers to time (not geographic area), and increase usually refers to a change in theamount a taxpayer owes.

3. Further, Plaintiff’s position would require an implied repeal of preexistingGovernment Code provisions regarding annexation. “Read together, the islandannexation statute ... and the automatic-taxation-of-annexed-territory statute wouldnecessarily be repealed by any interpretation of Proposition 218 that required a votewhenever an ‘island’ annexation” would lead to additional taxes.



Schmeer v. County of Los Angeles (2013) 213 Cal.App.4th 1310

Take-Away: Ordinance requiring retailers to charge and retain fees for paper bagscharged does not “impose” taxes such that voter approval is required.

Facts: County adopted ordinance banning retailers from providing disposable plasticbags and required retailers to charge 10 cents for paper bags. The retailers must retainand use the funds for compliance costs, actual costs of providing the paper bags, or thecosts for related educational materials or other promotional activity. Plaintiffs--taxpayers who purchased paper bags and a plastic bag manufacturer--alleged theCounty violated Article XIIIC of the California Constitution, as amended by Proposition26, because the charges are taxes adopted without voter approval (specifically, specialtaxes which required a super-majority approval of the electorate).

Holdings and Analysis: The charges are not taxes.

1. The decision discusses the historical foundations of Proposition 26, includingProposition 13, Proposition 218 and Sinclair Paint v. State Board of Equalization(1997) 15 Cal.4th 866, which held that regulatory fees imposed to mitigate past,present or future adverse impacts of the payer’s operations are not taxes.Proposition 26 was adopted “to close perceived loopholes in Propositions 13 and218 and was largely a response to Sinclair Paint.”

2. Proposition 26 amended Articles XIIIA and XIIIC to redefine “taxes” and limit stateand local governments’ authority to raise revenue, respectively. As to XIIIC, a “tax”is “any levy, charge or exaction of any kind imposed by a local government, exceptthe following” list of seven exceptions, e.g., charges for a specific governmentalservice or product that does not exceed the reasonable costs for the service orproduct.

3. “Tax” usually “refers to a compulsory payment made to the government or remittedto the government” that are “ordinarily imposed to raise revenue for thegovernment.”

a. Neither the text of Proposition 26, nor the ballot materials, nor the historicalfoundations suggest that the electorate intended to modify this general rule.

b. The subject fees are not taxes paid to the government for governmental services.

c. Provision of Article XIIIA, that a tax includes any change in a state statute thatcauses any taxpayer to pay a higher tax, does not eliminate the requirement thatthe charge raise revenue for state purposes to be a tax. The purpose was torestrict the Legislature’s ability to approve “revenue-neutral” laws that increasetaxes for some but decrease them for others. It does not affect the analysisrelative to local government taxes.



VI. MUNICIPAL SERVICES AND UTILITIES

Utility Services

County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643

Take-Away: A city is authorized to locate sewer line in unincorporated area of countyupon finding the location to be necessary and convenient. If the location is in anothercity, it must seek an agreement re: terms and conditions for the project and, ifunsuccessful, seek court order to do so.

Facts: In an effort to improve an aging sewerage system and to add capacity to reducerisk of overflows during storms, City sought to install a new 54-inch pipe from pumpplant to treatment plant. A portion of the line would be under unincorporated area ofCounty. County filed suit, alleging violations of sections 10101-05 of the Public UtilitiesCode and CEQA. The trial court issued a writ on the Public Utilities Code claim. TheCourt of Appeal reversed and remanded.


1. A city is authorized to locate sewer line in unincorporated area of county upon afinding that the location is necessary and convenient, pursuant to Pub. Util. Code §10105.

a. City did not have absolute authority to install line. Rather, it has authority to theextent provided by the Public Utilities Code.

b. Sections 10103 and 10104 apply when the line extends into the territory ofanother city. The city must propose to the other city terms and conditions for theextension. If the cities do not reach agreement, the proposing city may file suit torequest the court to determine and adjudicate the terms and conditions. Thesesections do not apply here.

c. Section 10105 applies when the utility line extends into unincorporated territory.

i. Counties are subdivisions of the State, not municipalities. Thus, sections10103 and 10104 do not apply.

ii. The City need not file suit to seek a judicial determination of whether the routeis “necessary or convenient,” as it would have if the location were in theterritory of another city and the cities could not agree to terms and conditions.

iii. However, the County could challenge the City’s determination under CCP §1085.

2. The trial court erred by conducting independent review, rather than “extremelydeferential” review of whether the City “adequately considered the relevant factors”



and made “a rational connection” between the factors, the decision, and thestatutory requirements.

Utility Rates

City of Redding, California v. Federal Energy Regulatory Commission (9th Cir.2012) 693 F.3d 828

Take-Away: FERC may not retroactively set rates charged by cities and other electricityproviders over which it does not have jurisdiction, but it could issue an order as to thejust and reasonable rates which third parties could use in litigation against the providers.

Facts: Cities and other plaintiffs challenged FERC’s authority to order refunds forallegedly inflated prices charged during energy crisis of 2000 and 2001. Ninth Circuitruled FERC could not order refunds from cities and other plaintiffs not under itsjurisdiction. On remand, FERC revised its order, declaring what it considered to be justand reasonable rates. In separate suits by rate payers against electricity providers,third parties sought to use FERC’s order to support breach of contract claims fordamages (based on the theory that the electricity providers had agreed to abide by therates set by the Electricity Exchange, including as revised by FERC).


1. Petitioners had standing to challenge the FERC order. They were defendingthemselves against breach of contract claims, which depend upon the viability of theFERC order.

2. FERC could not retroactively reset the rates. However, FERC had authority todeclare just and reasonable rates, which the third party plaintiffs would use tosupport their breach of contract claims.

VII. PUBLIC CONTRACTING

Contracting for Services

Chung v. City of Monterey Park (2012) 210 Cal.App.4th 394

Take-Away: CEQA does not apply to measure requiring competitive bidding for futurecontracts.

Facts: City placed measure on ballot to require competitive bidding for future trashservice contracts. Plaintiffs alleged measure was a project requiring CEQA review.Trial court determined the measure was not a CEQA project. Court of Appeal affirmed.



Holdings and Analysis: A measure to require competitive bidding for future contracts,without committing the agency to any particular action regarding such contracts, doesnot fall within the “project” definition set forth in Public Resources section 21065 and isexpressly exempt as a fiscal activity pursuant to CEQA Guidelines section 15378(b)(4).

VIII. PUBLIC PROPERTY

Regulating Activity on Streets and Sidewalks

Valle Del Sol Incorporated v. Whiting (9th Cir. 2013) 709 F.3d 808

Take-Away: Following its Redondo Beach decision, Ninth Circuit invalidated day-laborsolicitation ban that unnecessarily restricted commercial speech.

Facts: Arizona statute makes it unlawful to impede traffic when hiring or attempting tohire a laborer, or for a person to be hired in such a manner. The express statutorypurpose is to “discourage and deter the unlawful entry and presence of aliens andeconomic activity by persons unlawfully present in the United States.” Penalties aremore severe than for similar traffic violations that were not tied to efforts to hire daylaborers. Plaintiffs filed suit, alleging First Amendment violations. District Court issuedpreliminary injunction. Arizona appealed.


1. The statute restricts commercial speech. The Court of Appeals rejected plaintiffs’contention that it should treat the speech as political speech, to which heightenedscrutiny would apply. While “[t]he act of soliciting work as a day laborer maycommunicate a political message, [] the primary purpose of the communication is toadvertise a laborer’s availability for work and to negotiate the terms ....”

2. The day labor provisions are content-based.

a. The express purposes are “to suppress labor-solicitation speech” and to deteractivity by undocumented immigrants, not to promote traffic safety.

b. The legislative history also evidenced “hostility to day laborer solicitation,” notconcern for traffic safety.

c. The punishment is more severe than punishment for similar traffic violations(including up to six months imprisonment).

3. The day labor provisions are likely unconstitutional, under the four-part test fromCentral-Hudson Gas & Electric Corp. v. Public Service Commission of New York(1980) 447 U.S. 557.



a. The content of the communication--discussion of labor--is neither misleading norunlawful; the means by which it is communicated is not relevant. As to themeans, Arizona has and may prohibit pedestrians and drivers from impedingtraffic, but it may not use purported traffic laws to target speech.

b. Arizona has a substantial interest in traffic safety, thereby showing a substantialinterest to be achieved by the restrictions on commercial speech.

c. The restrictions do not directly advance the government’s substantial interest.Arizona did not show that the targeted conduct posed a more acute safetyconcern than other roadside communications.

d. The regulations were more restrictive than necessary to serve the government’ssubstantial interest.

i. “Because the test for commercial speech is substantially similar” to the time,place and manner analysis, Comite de Jornaleros de Redondo Beach v. Cityof Redondo Beach (9th Cir. 2011) 657 F.3d 936, invalidating an in-streetsolicitation ban, provided “a helpful framework for evaluating this case.”

ii. Redondo Beach’s ban was overinclusive because “it restricted more speechthan necessary to serve [its] interest in traffic safety.”

iii. Arizona’s law is less restrictive because it only bans conduct that impedestraffic. However, Arizona already has laws to address these traffic concernsand need not restrict the speech.

California Tow Truck Association v. City and County of San Francisco (9th Cir.2012) 693 F.3d 847

Take-Away: Federal preemption analysis requires provision-by-provision analysis.

Facts: Plaintiff challenged ordinances which required tow truck drivers and firms toobtain licenses from City. Plaintiff alleged ordinances were preempted by federal law,principally the Interstate Commerce Act as amended by the Federal AviationAdministration Authorization Act of 1994 (FAAAA). On cross-motions for summaryjudgment, the District Court considered the permitting system as a whole and upheldthe system for non-consensual tows but not for consensual tows. The Ninth Circuitreversed and remanded.


1. The FAAAA generally preempts local laws “related to a price, route or service of anymotor carrier.” (49 USC § 14501(c)(1).) The FAAAA does not preempt safetyregulations, insurance requirements, and the prices for towing a vehicle without theconsent of the owner. (49 USC § 14501(c)(2).)



2. The safety exception, the key exception in this case, is a two-part test: (a) whetherthe legislative intent was genuinely responsive to safety concerns (and not, forexample, veiled economic litigation), and (b) the nexus between the provision andthe safety concern.

3. Preemption analysis requires provision-by-provision analysis. The District Courterred by not examining the specific provisions of the ordinances under this two-parttest. “On remand, the slate is clean for the district court to analyze the PermitSystem and its individual provisions.”

4. The District Court lacked jurisdiction to consider the legality of the ordinances withrespect to tow trucks merely passing through the City. The City did not requirepermits in such situation.

Leasing Public Property

Barnes-Wallace v. City of San Diego (9th Cir. 2012) 704 F.3d 1067

Take-Away: Cities may offer reduced rent leases to organizations such as the BoyScouts who have a secular component, as long as the city activity has significantneutral components (e.g., leases are also offered to secular organizations and the cityreceives benefits such as maintenance of the land and/or advancement of city interestin promoting cultural or recreational activity).

Facts: City leased land to Boy Scout organization for one dollar per year. Plaintiff,agnostics and lesbians, alleged that the lease violated various provisions of the federaland state constitutions. The District Court issued mixed rulings. The Court of Appealsaffirmed in part and reversed in part.


1. The leases did not violate the No Aid Clause of the California Constitution.

a. The No Aid Clause prohibits financial support for religious institutions orpurposes.

b. The City was not supporting a religious institution or purpose.

i. It granted leases to secular and non-secular groups for at least 123 parcels.

ii. While the Boy Scouts occasionally used the land for religious activity, the Citydid not specifically fund those activities.

iii. While the leases were for nominal rent, the City did get a benefit--extensiveimprovement and management of the land.



iv. The leases served City purposes of encouraging non-profits to developcultural, educational and recreational programs; the aid to religious activitywas incidental.

2. Leases did not violate the state or federal Establishment Clauses.

a. California’s Establishment Clause is no broader than the First Amendment.

b. While the utility of Lemon test adopted by the Supreme Court has been calledinto doubt, it is still useful in this context.

i. The purpose of the leases was not to advance religion.

ii. The effect of the leases did not advance religion.

iii. The leases did not entangle the City with religious activity.

3. Leases did not violate California’s No Preference Clause because actions whichsatisfy the federal Establishment Clause satisfy California’s No Preference Clause.

4. Leases did not violate Plaintiffs’ equal protection rights. While they have standing topress these claims on the basis of a discriminatory barrier, the claims fail becausePlaintiffs are not able and ready to apply for access to the camps because theyoppose the membership policies.

Eminent Domain

County of Glenn v. Foley (2012) 212 Cal.App.4th 393

Take-Away: Trial courts err if they prohibit testimony from appraisers who, incondemnation actions, may make adjustments to the sales prices of comparableproperties when comparing to subject property (to account for differences such astopography and improvements).

Facts: County filed eminent domain proceeding to acquire fee title to land it had beenleasing for landfill. Property owner's appraiser asserted highest and best use wasagricultural. He identified comparable sales of agricultural land and made adjustmentsto compare to the subject property and form an opinion of its value. County filed motionin limine asserting this methodology violated Evid. Code § 822, which prohibits opiningas to value of comparable, and Evid. Code § 816, which sets forth foundationalrequirements for comparables. Trial court granted motion in limine and enteredjudgment consistently with the County's valuation (to which the parties had stipulatedgiven the exclusion of the condemnee's valuation evidence). Court of Appeal reversed.


1. Evid. Code § 822 prohibits an appraiser from opining as to the value of acomparable. It does not prohibit appraiser from making adjustments to the sales



price of a comparable property in order to compare it to the subject property (e.g., byfactoring differences related to location, improvements, etc.). The County did notdefinitively establish that the condemnee's appraiser violated this rule by makingadjustments (e.g., for improvements).

2. Evid. Code § 816 requires that comparables must be "'sufficiently alike in respect tocharacter, size, situation, usability, and improvements' so that the price 'may fairly beconsidered as shedding light'" on the value of the subject property. This is theequivalent to the rule that circumstantial evidence is admissible if relevant. Thecondemnee's proffered evidence satisfied this rule.

City of Corona v. Liston Brick Company of Corona (2012) 208 Cal.App.4th 536

Take-Away: Inadmissible valuation evidence cannot be used in cross examination.

Facts: City sought to acquire property by eminent domain. Property owners sought touse inadmissible appraisal and purchase and sale agreement to cross examine City’sexpert. The trial court granted the motions in limine to preclude such examination. TheCourt of Appeal affirmed.

Holdings and Analysis: The property owner could not offer evidence, even on cross-examination, which violated rules against appraising the value of a comparable.

Council of San Benito County Governments v. Hollister Inn, Inc. (2012) 209Cal.App.4th 473

Take-Away: A condemnor need only to seek to acquire substitute access if it is denyingaccess to the public streets; it need not replace access to the same street.

Facts: Joint Powers Authority filed eminent domain proceeding to acquire property forhighway bypass project. Condemnee Hollister Inn alleged JPA grossly abused itsdiscretion by terminating access to highway, which was its main point of access to theInn, without seeking to condemn alternative access to the highway pursuant to CCPsection 1240.350. JPA asserted that it was not obligated to condemn alternativehighway access because the Inn still had access to public streets and indirectly tohighway. After right to take trial, the trial court agreed with Inn and ordered dismissal,unless JPA took corrective action. Trial court also awarded $234,000 in attorney’s fees.Court of Appeal reversed.


1. The adoption of a Resolution of Necessity is a legislative act, which may only be setaside if the condemnor grossly abused its discretion.

2. Eminent Domain Law requires condemnor to seek to condemn alternative access topublic streets for otherwise landlocked properties. It does not require condemnationto provide access to the street from which access is being taken. (See CCP §1240.350.) The Court explained that its interpretation is consistent with the text of



the statute, the legislative history, and the constitutional principal that the exercise ofeminent domain authority must only be for public uses.

3. JPA did not grossly abuse its discretion because the Inn still had access to thepublic street system, even though the access was less desirable.

People ex rel. Dept. of Transportation v. Dry Canyon Enterprises, LLC (2012) 211Cal.App.4th 486

Take-Away: In eminent domain proceedings, the court determines issues of entitlementto compensation. If entitlement is established, the jury determines valuation.

Facts: Caltrans filed eminent domain proceeding against fledgling winery to acquireproperty for highway widening project. Winery, which had yet to turn a profit, claimedloss of business goodwill--the amount that a business’ overall value exceeds the valueof its assets--and offered alternative valuation theories. After winery’s presentation ofits case in chief, trial court ruled that winery failed to offer substantial evidence that ithad goodwill in before condition and thus denied winery right to jury trial re: value of lostgoodwill. Court of Appeal affirmed.


1. Trail court determines whether business owner has preexisting goodwill and thusright to jury trial re: loss of goodwill.

2. Evidence of goodwill may be based on a variety of methodologies, which are usuallybased on profitability.

3. Trial court did not abuse its discretion by rejecting condemnee’s expert opinionsregarding goodwill, which were based on speculative theories related to costs toform the business and anticipated future profits.

Adverse Possession

City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266 (modified on denial ofrehearing Dec. 21, 2012; review denied Feb. 13, 2013)

Take-Away: Cities may acquire prescriptive rights to water.

Facts: Litigation to adjudicate users’ rights to groundwater in a basin. Most of theparties (private parties and public entities) entered a stipulation articulating a so-called“physical solution” to the use of groundwater in the basin. The stipulation included theconfirmation of the City of Santa Maria’s prescriptive rights. The court approved theagreement. A few non-settling parties challenged the agreement, alleging a watershortage is a prerequisite to the imposition of a physical solution.




1. There was an actual controversy warranting a judicial declaration despite the currentwater surplus.

2. The City established prescriptive rights by use of the groundwater for a five-yearperiod. It need not have taken groundwater during a shortage in a manner thatwould have negatively impacted Plaintiffs’ supply.

IX. REGULATING BUSINESSES AND PERSONAL CONDUCT

Rent Control and Mobilehomes

ABCO, LLC v. Eversley (2013) 213 Cal.App.4th 1092

Take-Away: Live-work spaces may be residential unit covered by rent controlordinances.

Facts: Unlawful detainer action re: live-work space. Tenant filed motion for summaryjudgment asserting unit was residential and thus covered by Los Angeles’ rentstabilization ordinance and that rent exceed permissible levels. Summary judgmentgranted. Court of Appeal affirmed.

Holdings and Analysis: Rent ordinance applied to the live-work space.

Vieira Enterprises, Inc. v. City of East Palo Alto (2012) 208 Cal.App.4th 584

Take-Away: Whether a manufactured home is personal property or a fixture, withrespect to property rights analysis, depends upon the common law governing fixtures torealty, not the Health & Safety Code sections governing manufactured homes.

Facts: Plaintiff sold and installed manufactured home. Buyer failed to pay. Sellerrecorded mechanic’s lien. In meantime, Buyer obtained loan, secured against the realproperty, and promptly defaulted. Lender foreclosed on the properties and took title.Lender also applied to City for issuance of notices of installation pursuant to Health &Saf. Code § 18551, which pertains to the licensing, regulation and taxing ofmanufactured homes. Lender sold properties to third party. Plaintiff alleged Cityviolated its substantive due process rights and inversely condemned its property byissuing of notices pursuant to section 18551. Plaintiff claimed that, pursuant to section18551, the manufactured homes remained its personal property until the City issued thenotices of installation. Trial court granted summary judgment for the City. Court ofAppeal affirmed.




1. Plaintiff had to establish a property interest for both its due process and takingsclaims.

2. The homes were fixtures to realty at the time of foreclosure, pursuant to commonlaw.

a. Manufactured homes are personal property until affixed to land.

b. Under the common law, three factors determine whether property has become afixture: physical annexation, adaption to use, and the intention to annex to realty.

c. Under these factors, the manufactured homes were fixtures.

3. Health & Saf. Code § 18551 does not modify or preempt these propertydeterminations, which are germane to the constitutional claims. Section 18551provides rules governing the installation, licensing and taxation of mobilehomes, asan affordable housing option. It does not affect the property interest analysis in adue process or takings case.

Regulating Speech

Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322

Take-Away: Regulating leafletting outside a public building or other public forum will notsurvive unless narrowly tailored to legitimate government interests.

Facts: City adopted policy regulating leafletting and solicitation at new library as well asa handbill ordinance. The policy limited leafletting to a specified a “free speech area”outside library, required reservations to use the free speech area, prohibited solicitation,banned leafletting of vehicles in parking lot, and prohibited “offensively coarse”language. The handbill ordinance banned placing handbills on any vehicle in the citywithout consent, required identification of the authors, and prohibited handbills thatencouraged breach of peace or included offensive language. A Tea Party-associatedgroup and the ACLU brought facial and as applied claims under the California and U.S.Constitutions. The trial court issued a preliminary injunction. The Court of Appeallargely affirmed.


1. The California Constitution provides broader free speech rights than the U.S.Constitution (e.g., by protecting speech at privately-owned malls). However, thedifferences were not material to the outcome in that a publicly-owned forum was atissue and the federal and state courts employ the same time, place and mannerregulations.



2. Nature of the Forum:

a. The Ninth Circuit and the California Supreme Court have applied alternative testsfor determining the nature of the forum. The Court of Appeal followed the StateSupreme Court’s approach, analyzing whether the forum was similar to other forathat have traditionally be deemed public fora.

b. The outdoor areas of the library, including the walkways around the library usedfor ingress and egress, constitute a traditional public forum, like a park, street orsidewalk.

3. Standard of Review:

a. Any content-based regulation must necessary to serve a compelling stateinterest [strict scrutiny test].

b. The state may enforce non-content-based regulations that are narrowly tailoredto serve a significant government interest and leave open alternative channels ofcommunication [intermediate scrutiny test].

4. Analysis [Intermediate Scrutiny Test, except re: “offensive course” speech]

a. Limiting leafleting to the “free speech area” was not narrowly tailored to legitimategovernment interests. While the City has legitimate interests in preventingcongestion and preserving ease of access to the library, the walkways andentrances were open and easily accessible, and the regulations weresubstantially broader than warranted. Further, the captive audience doctrine didnot apply because patrons could easily ignore unwanted speech.

b. The ban on solicitation was not narrowly tailored to a legitimate governmentinterest.

c. Plaintiffs failed to show that the ban on leafletting in the parking lot, imposedlargely to advance public safety interests, violated free speech rights.

d. Prohibition on “offensively coarse” language was unconstitutional. State may notprohibit offensive speech, citing the U.S. Supreme Court decision regarding the“Fuck the Draft” jacket worn in a courthouse corridor.

e. The reservation system was unnecessary and unconstitutional.

f. Regarding the handbill ordinance, the Tea Party group had standing under therelaxed standard in free speech cases because there was a credible threat ofprosecution. The prohibition against placing handbills on vehicles was overlybroad (and distinguishable from a limited ban at a parking lot). Requiringidentification of authors impermissibly chills speech. Banning offensive languageis unconstitutional, as discussed above.



Charles v. City of Los Angeles (9th Cir. 2012) 697 F.3d 1146 (petition for certiorarifiled Feb. 25, 2013)

Take-Away: Signs advertising non-commercial speech, such as a television program,may be commercial speech.

Facts: Plaintiff claimed temporary, offsite sign advertising a television news programwas exempt from permit requirements of City’s sign ordinance. Plaintiff alleged that thesign was non-commercial speech which enjoyed same First Amendment protection asthe E! News program it was advertising. District Court granted motion to dismiss. Courtof Appeals affirmed.


1. The sign was commercial speech.

a. “That the underlying E! News program is itself entitled to full First Amendmentprotection does not cloak all advertisements for the program with noncommercialstatus; speech inviting the public to watch E! news is not inherently identical tothe speech that constitutes the program itself.”

b. In limited circumstances (e.g., where the underlying speech is religious orpolitical in nature), advertisements directing the public to the protected speechmay be considered noncommercial. But Plaintiff incorrectly contended that thisexception to the commercial speech doctrine applied.

2. The courts defer to legislative classifications of speech but not to administrativedeterminations on these questions of constitutional law.

Dex Media West, Inc. v. City of Seattle (9th Cir. 2012) 696 F.3d 952

Take-Away: Yellow pages include noncommercial speech and thus full FirstAmendment Protection. Ordinances restricting their distribution must serve compellinggovernmental interests and employ the least restrictive means available.

Facts: City imposed substantial conditions and costs on the distribution of “yellowpages.” Plaintiffs alleged the Ordinance violated the First Amendment. District Courtgranted summary judgment for City. Court of Appeals reversed.


1. Yellow page directories enjoy full First Amendment Protection. They includenoncommercial speech, along with commercial speech, and the speech isinextricably intertwined. The yellow pages are not like advertising pamphlets, butare more like newspapers and television and radio programs that sell advertising topay for their content. Thus, Ordinance reviewed under strict scrutiny test.

2. The Ordinance does not survive strict scrutiny. Only in extraordinary circumstanceswill content-based restrictions apply. The regulation must be the least restrictive



means available to further a compelling government interest. While the City’sinterests in limiting waste, protecting privacy and recovering costs are arguablycompelling, the regulations overreached. The City could instead, for example,encourage the Plaintiffs to adopt programs to meet these goals.

Reed v. Town of Gilbert, Ariz. (9th Cir. 2013) 707 F.3d 1057

Take-Away: Content-neutral inquiry for sign regulation is not merely whether you mustread the sign. The principal, more nuanced, inquiry is whether the government“adopted a regulation of speech because of a disagreement with the message itconveys.”

Facts: Sign ordinance prohibits signs without permits, except for 19 types of exemptedsigns, such as temporary directional signs, political signs, and ideological signs. Toqualify for the temporary directional sign exemption (the main exemption at issue), (1)the signs could only be displayed for 12 hours before and one hour after the event, (2)the signs were limited to six square feet, and (3) only four signs could be posted on aproperty, among other restrictions. The Good News Church, which advocatedproselytizing, placed 17 signs announcing their services in violation of the time limits.The Town issued a notice of violation. The Good News Church sued, alleging freespeech and equal protection violations. In initial proceedings, the District Court andCourt of Appeals denied Plaintiff’s motion for injunctive relief. (Reed v. Town of Gilbert(9th Cir. 2009) 587 F.3d 966.) On remand, the District Court granted summaryjudgment for the Town. The Court of Appeals affirmed.

Holdings and Analysis: The Sign Ordinance is content-neutral, constitutional regulation.

1. The Court’s prior decision constitutes law of the case:

a. The temporary directional sign exemption regulations are content neutral.

b. The Sign Ordinance is a reasonable time, place and manner regulation.

2. The Sign Ordinance does not improperly discriminate between forms ofnoncommercial speech on the basis of their content.

a. The Ordinance is content-neutral.

i. Content-neutral analysis has evolved since Desert Outdoor Advertising, Inc.v. City of Moreno Valley (9th Cir. 1996) 103 F.3d 814, and Foti v. City ofMenlo Park (9th Cir. 1998) 146 F.3d 629. The answer does not simplydepend upon whether the city officer must examine the contents of the sign.The analysis is more nuanced. The principal inquiry is whether thegovernment “‘adopted a regulation of speech because of a disagreement withthe message it conveys.”‘ [quoting Hill v. Colorado (2000) 530 U.S. 703,719.]



ii. The subject exemptions are content neutral because they are based onobjective standards and do not consider the substance of the sign.

b. The Sign Ordinance is narrowly tailored to serve significant government interests.

i. Governments have significant interests in safety and aesthetics.

ii. The temporary directional, political, and ideological sign exemptions, and theassociated regulations, “reflect[] a balance between [the Town’s] interests andthe constitutional interests of the type of sign covered.” The exemptions arenot mutually exclusive, and the Town reasonably regulates the conditions forplacement of the signs without stifling the speech. Moreover, the “courtsgenerally defer to a city’s determinations of size and duration.”

iii. Alternative channels of communication remain. Good News can advertise itsservices by means other than signs.

OSU Student Alliance v. Ray (9th Cir. 2012) 699 F.3d 1053

Take-Aways:

1. Restrictions on speech in designated public fora must be content neutral and basedon reasonable time, place and manner regulations.

2. Policy-makers acquiescence in staff’s actions may give rise to section 1983 liabilityagainst the policy-makers.

Facts: University staff removed conservative student newspapers’ distribution bins.Staff did not remove newspaper bins of another student group, which had longstandinguniversity and student support. Director of Facilities Services refused permission toreplace bins, citing unwritten, unenforced policy which he claimed provided plenaryauthority to remove papers distributed by an “off campus” group. District Courtdismissed. Court of Appeals reversed.


1. The campus was at least a designated public forum, intentionally designated forexpressive conduct, to which strict scrutiny applies. Restrictions must be contentneutral and based on reasonable time, place and manner regulations.

2. Complaint stated a First Amendment violation based on application of unwrittenpolicy that provided staff with unbridled discretion and viewpoint discrimination.

3. Complaint stated an equal protection violation based on same grounds.

4. Complaint stated due process violations because university officials had notprovided notice or opportunity to be heard.



X. LAND USE

Concerned Dublin Citizens v. City of Dublin (Mar. 7, 2013) -- Cal.App.4th -- , 13C.D.OS. 3428, 2013 WL 840083

In Brief: Statutory exemption from CEQA for residential project consistent withpreviously approved Specific Plan applied (Gov. Code § 65457). City properlydetermined that BAAQDMD’s publication of new threshold guideline re: greenhouse gasemissions was not new circumstance requiring supplemental environmental reviewunder Pub. Resources Code § 21166. See Land Use and CEQA Litigation Update fordiscussion.

City of Huntington Beach v. Public Utilities Commission (2013) 214 Cal.App.4th566

In Brief: Wireless providers are subject to reasonable time, place and mannerregulations regarding siting of facilities. See Land Use and CEQA Litigation Update fordiscussion.

Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th1484

In Brief: Zoning administrator’s letter approving a project may trigger 90-day statute oflimitations of Gov. Code section 65009(c)(1)(E). See Land Use and CEQA LitigationUpdate for discussion.

Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301

In Brief: An agency properly denies a land use application that conflicts with its generalplan. See Land Use and CEQA Litigation Update for discussion.

Chino MHC, LP v. City of Chino (2012) 210 Cal.App.4th 1049 (rehearing deniedNov. 30, 2012; review denied Feb. 13, 2013)

In Brief: City may deny mobilehome park owner’s application to convert to residentialownership only if the required survey of residents shows the conversion is a sham.See Land Use and CEQA Litigation Update for discussion.

Friends of Aviara v. City of Carlsbad (2012) 210 Cal.App.4th 1103

In Brief: Revisions to Housing Element and associated proposed changes to otherelements of General Plan are lawful as long as City had a timeline for the changes. SeeLand Use and CEQA Litigation Update for discussion.

Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55Cal.4th 783

In Brief: Mobilehome park residential conversions are developments subject to CoastalAct and Mello Act. See Land Use and CEQA Litigation Update for discussion.



Laurel Park Community, LLC v. City of Tumwater (9th Cir. 2012) 698 F.3d 1180

In Brief: Zoning ordinances designed to preserve mobilehome parks (or manufacturedhome parks) did not inversely condemn property. See Land Use and CEQA LitigationUpdate for discussion.

Browne v. County of Tehama (2013) 213 Cal.App.4th 704

In Brief: Neither Prop. 215 nor the Medical Marijuana Program legislation preemptordinances that regulate cultivation of cannabis. See Land Use and CEQA LitigationUpdate for discussion.

Alliance for the Protection of the Auburn Community Environment v. County ofPlacer (Bohemia Properties, LLC) (Feb. 28, 2013; published April 2, 2013) –Cal.App.4th --, 2013 WL 1316496

In Brief: No good cause relief available for failure to timely file CEQA suit. “WhileCEQA should be broadly interpreted to protect the environment, CEQA also aims toensure extremely prompt resolution of lawsuits claiming noncompliance with the act.”See Land Use and CEQA Litigation Update for discussion.

Conejo Wellness Center, Inc. v. City of Agoura Hills (March 29, 2013) –Cal.App.4th -- , 2013 WL 1278414

In Brief: Cities retain land use authority to regulate, even ban, medical marijuanadispensaries. See Land Use and CEQA Litigation Update for discussion.

Gila River Indian Community v. United States (9th Cir. 2012) 697 F.3d 886

In Brief: Unincorporated land wholly surrounded by a city is not “within the corporatelimits of any city” for the purposes of the U.S. placing land in trust for a Tribe. See LandUse and CEQA Litigation Update for discussion.

XI. PROTECTING THE ENVIRONMENT

Ecological Rights Foundation v. Pacific Gas and Electric Company (9th Cir. April3, 2013) – F.3d --, 2013 WL 1319462

Take-Away: Incidental discharges of preservatives from utility poles does not violateClean Water Act or Resource Conservation and Recovery Act.

Facts: Plaintiffs filed citizen-suit against PG&E under Clean Water Act (CWA) andResource Conservation and Recovery Act (RCRA) alleging illegal discharge of PCP, awood preservative, from utility poles into stormwater. District Court granted motion todismiss. Court of Appeals affirmed.




1. No CWA violation.

a. The discharge of the preservative from utility poles into stormwater is not “pointsource” pollution because the runoff is not discretely collected and conveyed towaters of the U.S.

b. Nor is the discharge “associated with industrial activity” such that an NPDESpermit would be required. A utility pole is neither a conveyance for stormwaternor “directly related” to industrial activity as defined by EPA regulations.

2. No RCRA violation.

a. A plaintiff in a citizen suit under RCRA must satisfy three factors, each of whichdepends upon the subject material qualifying as “solid waste.”

b. Plaintiff did not establish that the preservative runoff is “solid waste” covered byRCRA. The runoff from normal wear-and-tear of this federally-approved biocide,when used for its intended purpose, is not “automatically ‘solid waste’” subject toRCRA. The Court used the qualifier “automatically” to indicate that the doorremains open for a plaintiff to show that dangerous accumulations from thedischarge could become “solid waste.”

Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408 (as modifiedon denial of rehearing Oct. 4, 2012; review denied Dec. 19, 2012)

In Brief: Notice of Exemption filed before project approval is ineffective and does nottrigger statute of limitations for CEQA suit. See Land Use and CEQA Litigation Updatefor discussion.

Mount Shasta Bioregional Ecology Center v. Siskiyou County Air PollutionControl District (2012) 210 Cal.App.4th 184 (review denied Jan. 30, 2013)

In Brief: While CEQA requires the agency to analyze feasible alternatives, the plaintiffmust identify feasible alternatives, which would meet project objectives, were ignored.See Land Use and CEQA Litigation Update for discussion.

Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260

In Brief: (1) Courts will scrutinize sufficiency of mitigation measures that depend uponsubsequent development of implementation plans, as well as water supply assessments,and (2) Where a court finds a discrete aspect of an EIR to be inadequate, a limited writdirecting the agency to correct the deficiency may be issued in lieu of an order todecertify the EIR. See Land Use and CEQA Litigation Update for discussion.



Voices for Rural Living v. El Dorado Irrigation District (2012) 209 Cal.App.4th 1096

In Brief: (1) In a CEQA exemption case, whether an exception to a categoricalexemption applies is subject to the fair argument standard of review, and (2) a localagency may not disregard a legislative determination the agency maintains isunconstitutional. See Land Use and CEQA Litigation Update for discussion.

Habitat and Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th1277

In Brief: An EIR must discuss feasible alternatives that might avoid or lessen significantimpacts, even if the alternatives would not fully implement the project’s objectives.

See Land Use and CEQA Litigation Update for discussion.

Central Basin Municipal Water District v. Water Replenishment District ofSouthern California (2012) 211 Cal.App.4th 943

In Brief: Water basin adjudications may trump CEQA with respect to subsequentimplementation action.

See Land Use and CEQA Litigation Update for discussion.

Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059

In Brief: (1) An agency may adopt unique thresholds of significance for an EIR, in lieuof the recommended thresholds of Appendix G of the Guidelines, and (2) an erroneousconclusion of insignificance may be non-prejudicial if a condition of approval wouldmitigate the impact. See Land Use and CEQA Litigation Update for discussion.

XII. CODE ENFORCEMENT

Halajian v. D & B Towing (2012) 209 Cal.App.4th 1

Take-Away: Statutes authorizing police to impound unlicensed vehicles fromunlicensed drivers do not violate constitutional rights to travel or to be free fromunreasonable seizures.

Facts: Police officer impounded unlicensed vehicle from unlicensed driver. Driversued, alleging (1) violation of his constitutional right to travel and (2) unreasonableseizure in violation of Fourth Amendment.


1. Licensing regulations are a reasonable, incidental burden on the constitutional rightto travel.



2. Warrantless seizure did not violate Fourth Amendment.

Lavan v. City of Los Angeles (9th Cir. 2012) 693 F.3d 1022 (petition for certiorarifiled Feb. 28, 2013)

Take-Away: Cities must provide notice and opportunity to be heard before confiscatingand destroying property left, but not necessarily abandoned, by homeless persons.

Facts: Homeless individuals filed class action alleging City violated their Fourth andFourteenth Amendment rights by confiscating and destroying personal property leftunattended on sidewalk in violation of ordinance, without any opportunity to be heard.District Court issued a preliminary injunction against (1) seizure absent health andsafety concern, evidence of crime or contraband, and (2) destruction for 90 days absentimmediate threat to public health or safety. Court of Appeals affirmed.


1. Fourth Amendment protected Plaintiffs’ interests in personal property leftunattended, but not abandoned, on public streets. Thus, the seizure and destructionmust be constitutionally reasonable, irrespective of the ordinance or whether thePlaintiffs had a privacy interest at stake. “Were it otherwise, the government couldseize and destroy any illegally parked car or unlawfully attended dog withoutimplicating the Fourth Amendment.” The trial court’s injunction properly balancedthe property owners’ and the governments’ interests.

2. The Due Process Clause of the Fourteenth Amendment protected Plaintiffs’ interestsin the property, irrespective of whether they violated an ordinance. Plaintiffs’established a likelihood of success because the City did not provide any meaningfulopportunity to be heard before or after the seizure and destruction.

West Washington Properties, LLC v. California Department of Transportation(2012) 210 Cal.App.4th 1136

Take-Away: Equitable estoppel should rarely be applied to preclude enforcement ofregulations, even when the government has not acted for an extended period of time.

Facts: Property owner had obtained city permits for 8,000 square foot “wallscape”advertising sign. Property owner did not have state permits for sign, which was visiblefrom state highway. Wallscape had been in use since 1984. Caltrans issued notice ofviolation in 2006 and, after administrative proceedings, ruled against property owner.


1. Statute governing Caltrans permit determinations did not require determination thatwallscape was lawful. Because the property owner lacked a state permit, theproperty owner could not establish that the wallscape had been lawfully erected,irrespective of lack of enforcement.



2. Equitable estoppel and laches did not bar enforcement. The property owner couldnot reasonably rely on government inaction to enforce its regulations, whichadvanced important procedural and substantive rights on behalf of the public. Thiswas not a rare case that warranted the preclusion of important governmentalinterests in favor of extensive, reasonable reliance by a private party.

XIII. LIABILITY AND LITIGATION

Government Claims Act (AKA Tort Claims Act)

DiClampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983

Take-Away: Strict compliance with claims presentation provisions of Government Codesection 915 is required.

Facts: Plaintiff sought damages against physicians employed by county hospital.Plaintiff had delivered Government Code claim to employees of medical staff office atCounty hospital. County claimed suit was barred by failure to deliver to the properemployee, per the Government Code Claims Act. Supreme Court agreed.


1. Where the claims presentation requirements of the Government Code Claim Actapply, the claim must be (a) delivered to the persons enumerated in GovernmentCode section 915 or (b) actually received by one of those persons within the timeperiod. Knowledge by the agency of the existence of facts that might support aclaim is irrelevant.

2. Strict compliance with Government Code section 915 is required. The Courtdisapproved contrary case law--Jamison v. State of California (1973) 31 Cal.App.3d513 (which had already lost most of its precedential value).

Perez v. Golden Empire Transit District (2012) 209 Cal.App.4th 1228

Take-Away: A general allegations of compliance with the claims presentationrequirements of the Government Code Claims Act is sufficient to withstand demurrer.

Facts: Plaintiff sought damages for injuries received exiting a bus. The complaintoffered a general allegation of timely presentation of a Government Code claim, as wellas a specific allegation that she provided the date of the occurrence to a Transit Districtrepresentative who called to inform Plaintiff that this information was missing from theclaim. The trial court granted the District’s demur for failure to present a claim with thenecessary information. The Court of Appeal reversed.




1. General allegations of compliance with the claims presentation requirements issufficient.

2. Plaintiff’s general allegation qualified. Further, the allegation that Plaintiff informedthe District of the date of the occurrence did not contradict the general allegation ofcompliance. Moreover, construing the allegation in Plaintiff’s favor, she sufficientlyalleged she amended the claim to provide the missing information.

Judicial Review by Writ of Mandate

Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822

Take-Away: Substantial evidence test, not independent judgment test, applies tojudicial review of administrative decision to disbar a contractor because right to bid oncontracts is not fundamental.

Facts: State Department of Industrial Relations pursued administrative action to disbarContractor for violating prevailing wage laws. Hearing officer found Contractorcommitted willful violations with intent to defraud and disbarred Contractor for one year.Contractor filed writ petition. Trial court applied independent judgment test and issuedwrit. Court of Appeal reversed.


1. Substantial evidence test applied to review of administrative decision.

a. Whether a fundamental vested right is at issue is determined on case-by-casebasis.

b. No fundamental vested right was at issue. The Contractor’s interests areeconomic, and Contractor is only barred from bidding or working on someprojects.

2. The Administrative Decision is supported by substantial evidence.

a. Remand is not required because the Court of Appeal could review theAdministrative Decision for substantial evidence just as well as the trial court.

b. While there were conflicts in the evidence, there was sufficient evidence tosupport the Administrative Decision.

Hansen v. Board of Registered Nursing (2012) 208 Cal.App.4th 664

Take-Away: Proper service of notice of administrative decision at the address of recordcommences statute of limitations, even if not received by a plaintiff who has moved.



Facts: Plaintiff filed petition for writ of administrative mandate to reverse decisionrevoking her nursing license. Defendant alleged suit was untimely. Plaintiff alleged shehad not received the notice of the administrative decision (because she had moved),and that (1) suit was timely under discovery rule or (2) she was entitled to relief for goodcause, among other theories. Trial court sustained demurrer. Court of Appeal affirmed.


1. Under the Administrative Procedures Act, Defendant properly provided notice bymailing the decision by certified mail to Plaintiff at her address of record.

2. Plaintiff could not rely on the discovery rule or establish good cause for relief,including because she admitted she had not notified Defendant that she had moved.

Takings

Arkansas Game and Fish Commission v. United States (2012) 133 S.Ct. 511

Take-Away: Government-induced temporary flooding may constitute a taking.

Facts: Petitioner Arkansas Fish and Game Commission claimed periodic release ofwater from dam, at request of farmers, which flooded property managed by Petitionercaused damage and constituted a temporary taking. Court of Federal Claims enteredjudgment for Petitioner. Federal Circuit reversed. Supreme Court reversed appellatecourt.


1. While a few bright lines exist (e.g., for permanent physical occupation or deprivationof all economically beneficial use), federal claims usually require fact specificanalysis.

2. Government induced flooding may constitute a taking, and temporary takings arecompensable. Thus government induced, temporary takings are compensable.

3. Facts regarding causation, foreseeability, damages, etc., required remand.

Municipal Liability

City of Costa Mesa v. D’Alessio Investments (2013) 214 Cal.App.4th 358

Take-Away: A city’s anti-SLAPP motion may succeed where a complainant alleges thecity tortiously pursued code enforcement activity, but not where staff allegedly engagedin collateral tortious activity (e.g., slanderous statements to third parties).

Facts: City filed suit to abate public nuisances associated with message businesses,e.g, prostitution and sale of cannabis in violation of ordinance. Defendant, owner of the



businesses, filed cross-complaint against city and staff alleging that statements by citystaff constituted slander, trade libel and interference in prospective economicadvantage. Trial court granted city’s motions for preliminary injunction and granted ananti-SLAPP motion with respect to some of the city employees and the city. Ordersgranting and denying anti-SLAPP motions are appealable. Both sides appealed.


1. While the cross-complaint was not a typical SLAPP case, the law potentially appliesto government employees’ speech and private conversations.

2. The anti-SLAPP statute requires a two-step analysis:

a. Whether the moving party made a threshold showing that the challenged causeof action arises from protected activity.

b. If so, whether the responding party demonstrated a reasonable probability ofsuccess. (The merits of the claim should have no bearing on the first step.)

3. De novo review applies.

4. The anti-Slapp motion was meritorious, except as to one employee and the city.

a. Whether illegal activity was occurring at the premises were public issues, theallegedly slanderous statements were connected to the public issues, and thecauses of action arose from those statements. Thus, the motion satisfied the firststep. (The court distinguished the case from a challenge to collateral orunderlying acts, e.g., a challenge to a refusal to issue a permit.)

b. The defendant/cross-complainant did establish probability of success, except asto one employee and the city.

i. The standard is akin to the summary judgment standard; the courts shouldnot weigh conflicting evidence and should determine whether the movingparty established a legal defense or shows the absence of a missing elementto the cause of action.

ii. If the elements of the tort claims are established, the city and its employeescould be liable for the alleged torts, unless a defense, privilege or immunityapplies.

iii. The causes of action against several city employees failed because cross-complainant could not show the statements were false.

iv. However, he did establish a probability of success relative to a senior plannerwho told prospective tenant (who was seeking a business license) that thedefendant/cross-complainant had been convicted of prostitution and that thebusiness would be shut down. The litigation privilege and prosecutorialimmunity did not apply because the statement was disconnected from the



legal proceedings. The immunity for misrepresentations did not applybecause the statement was made to third parties and concerned reputationalharm. Thus, the senior planner and the City could be liable.

Bell v. City of Boise (9th Cir. 2013) 709 F.3d 890

Take-Away: A city’s legislative and administrative actions adopted after suit is filed infederal court do not necessarily moot a civil rights claims, e.g., regarding enforcement ofno-camping ordinances.

Facts: City ordinances prohibited (1) camping in rights-of-way and parks and (2)sleeping in “in any building, structure or place, whether public or private, or in any motorvehicle without the permission” of the owner or person in control of the property. Chiefof Police issued a Special Order prohibiting enforcement of the camping and sleepingordinances on days in which there is no available overnight shelter. Police coordinateddaily with shelter providers. Plaintiffs, three homeless individuals who had been citedunder the ordinances and who filed suit prior to adoption of the Special Order, allegedenforcement constituted cruel and unusual punishment in violation of the EighthAmendment and sought equitable relief and damages. District Court deniedretrospective relief on the ground that the plaintiffs effectively sought compensation frominjuries caused by state court judgments resulting from the citations, in violation of theRooker-Feldmen doctrine. District Court denied prospective relief on that ground thatthe Police Chief’s Special Order mooted the claims by “foreclos[ing] any reasonableexpectation that the alleged illegal action will recur.” The Court of Appeals reversed.


1. Retrospective relief not barred.

a. The Rooker-Feldmen doctrine prohibits a federal court action to set aside anallegedly erroneous state court judgment. It does not bar a federal action tochallenge an allegedly illegal act by the defendant, even if the suit also seeksrelief from a state court judgment.

b. Plaintiffs’ suit could proceed because they challenged the City’s conduct, not thestate court’s conduct.

2. Claims for prospective relief not moot.

a. The repeal or expiration of a state law will generally moot a case, but the “repealor amendment of an ordinance by a local government or agency does notnecessarily deprive a federal court of its power to determine the legality of thepractice.” In addition, the adoption of an administrative policy is unlikely to moota case because of the procedural ease with which it can be reinstituted.

b. The adoption of the Special Order did not moot the case.



Melendres v. Arapaio (9th Cir. 2012) 695 F.3d 990

Take-Away: Police may not stop or detain individuals solely on the basis of suspicion orknowledge that the individuals are not legally in the US.

Facts: Plaintiffs alleged (a) Defendants had a custom, policy and practice of stoppingdrivers and passengers who appeared to be Latino, in violation of the FourthAmendment, (b) they had been stopped in traffic incidents because of their race, and (c)the racial profiling would continue absent judicial relief. Defendants, who had partneredwith the U.S. Immigration and Customs Enforcement agency for the purpose ofenforcing federal civil immigration laws, maintained they acted within their authority tostop or detain an individual based on a reasonable suspicion that he or she was notlegally in the country. District Court granted Plaintiffs’ partial motion for summaryjudgment regarding the Fourth Amendment claim and entered a preliminary injunctionbarring detentions based solely on reasonable suspicion or knowledge that theindividual is unlawfully present in the country. Court of Appeals affirmed.


1. Plaintiffs had standing to seek prospective injunctive relief because the Sheriff’spolicy and practice made it sufficiently likely the injury would reoccur. Further,Plaintiffs could not avoid being detained by avoiding criminal activity--mere unlawfulpresence is not a crime.

2. Preliminary injunction was proper.

a. Plaintiffs were likely to prevail. Fourth Amendment does not permit a detentionmerely based on unlawful presence. “Absent suspicion that a suspect isengaged in, or about to engage in, criminal activity, law enforcement may notstop or detain an individual.”

b. Plaintiffs were threatened with irreparable harm. Plaintiffs faced real possibilitythat they would be stopped or detained on sole basis of their status.

Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100

Take-Away: Equitable tolling does not apply to extend the time to comply with anadministrative deadline while the plaintiff pursues a judicial remedy.

Facts: State employee filed suit in state and federal court for retaliatory termination.Claims were unsuccessful. Plaintiff filed amended complaint in state court actionalleging violation of Whistleblower Protection Act. Defendant demurred on ground thatPlaintiff had not exhausted administrative remedies by timely filing an administrativecomplaint. Plaintiff claimed his obligation to file administrative complaint was equitablytolled while he pursued federal lawsuit. Trial court overruled demurrer. Court of Appealissued a writ.



Holding and Analysis: Equitable tolling did not apply to obligation to pursueadministrative remedy.

1. The purpose of equitable tolling of a statute of limitation is to prevent unjust,technical forfeiture of the right to trial on the merits when the defendant has timelynotice of the plaintiff’s claims.

2. Thus, it often applies as between two judicial proceedings, or to toll a statute oflimitations while the plaintiff pursues an administrative remedy.

3. It does not apply to extend the time to comply with an administrative deadline whilethe plaintiff pursues a judicial remedy.

Hall v. City of Los Angeles (9th Cir. 2012) 697 F.3d 1059 (petition for rehearing enbanc filed)

Take-Away: Fifth Amendment, not the Due Process Clause, applies to Section 1983suit alleging unlawful conviction based upon fabrication of evidence.

Facts: Plaintiff whose murder conviction was overturned filed a section 1983 actionalleging his conviction was based on falsified evidence gathered during his interrogationand an associated coerced confession.


1. The Fifth Amendment, not the Due Process Clause of the Fourteenth Amendment,governed Plaintiff’s fabrication of evidence claim.

2. Plaintiff should be permitted to amend his complaint to allege his confession wascoerced in violation of his Fifth Amendment right not to testify against himself.

Edgerly v. City and County of San Francisco (9th Cir. April 10, 2013) -- F.3d --, 13C.D.O.S. 3870

Take-Away: When arresting for an infraction, police officers may only take the arresteeinto custody if (1) the arrestee refuses to sign a promise to appear, (2) the arresteelacks sufficient identification, or (3) the arrestee refuses to provide a fingerprint. (Pen.Code § 835.5(a).)

Facts: Plaintiff was standing in playground at housing project at which he did notreside. Playground was posted with “No Trespassing” signs. Police officers arrestedPlaintiff for trespassing and took him into custody. After searching him and taking himto police station, the officers cited him for trespassing, an infraction, and released him.Plaintiff was not prosecuted. He filed a section 1983 claim. In a prior appeal in thiscase, the Ninth Circuit held that the officers had probable cause to arrest for trespassbut lacked authority to take him into custody. On remand, the City argued that thecustodial arrest was authorized by Penal Code section 853.6(i), which applies to



misdemeanors. District Court agreed, holding that section 853.5(a) made section853.6(i) also applicable to infractions. The Court of Appeals reversed.


1. Penal Code section 853(a) provides three circumstances permitting a custodialarrest for an infraction. (See “Take-Away,” ante.)

2. Other Penal Code sections regarding arrest and release procedures formisdemeanors to not apply, as the California courts ruled in regard ruled in Peoplev. Williams (1992) 3 Cal.App.4th 1100, and In re Rottanak K. (1995) 37 Cal.App.4th260. A conflicting decision of an Superior Court Appellate Division is not persuasive.

Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167 (cert. denied Feb. 25,2013)

In Brief: Use of taser is reasonable in objectively dangerous situations againstcombative subject. See Municipal Tort and Civil Rights Litigation Update for discussion.

Sims v. Stanton (9th Cir., Dec. 3, 2012, amended Jan. 16, 2013) 706 F.3d 954

In Brief: Officers violate the Fourth Amendment when entering a home without awarrant in pursuit of a suspected misdemeanant. See Municipal Tort and Civil RightsLitigation Update for discussion.

Maxwell v. County of San Diego (9th Cir. 2013) 709 F.3d 1075 (rehearing andrehearing en banc denied)

In Brief: Peace officers may be liable for civil rights violation under the “danger creation”theory be delaying medical serviced needed by victim of third party’s violence. SeeMunicipal Tort and Civil Rights Litigation Update for discussion.

Coles v. Eagle (9th Cir. 2012) 704 F.3d 624

In Brief: Excessive force claims depend upon the totality of the circumstances. SeeMunicipal Tort and Civil Rights Litigation Update for discussion.

County of Los Angeles v. Superior Court (2012) 209 Cal.App.4th 543

In Brief: A plaintiff claiming damages for a breach of a mandatory duty must establishthat the provision is obligatory, leaves no room for discretion, and requires that aparticular action be taken or not taken. See Municipal Tort and Civil Rights LitigationUpdate for discussion.

A.D. v. State of California Highway Patrol (9th Cir., April 3, 2013) – F.3d --, 2013WL 1319453

In Brief: No qualified immunity for shooting without legitimate law enforcement motive.See Municipal Tort and Civil Rights Litigation Update for discussion.



Liability for Attorney’s Fees

Lefemine v. Wideman (Nov. 5, 2012) 133 S.Ct. 9

Take-Away: Obtaining injunctive relief in a section 1983 action is sufficient to establishprevailing party status with respect to a motion for attorney’s fees under section 1988.

Facts: Plaintiff filed section 1983 action alleging sheriff violated his First Amendmentrights to demonstrate against abortions. Plaintiff obtained injunctive relief. Trial courtgranted motion for attorneys fees under 42 USC section 1988.

Holdings and Analysis: Plaintiff entitled to attorney’s fees based on success obtainingequitable relief.

Cates v. Chiang (2013) 213 Cal.App.4th 791 (rehearing denied Feb. 26, 2013)

Take-Away: A plaintiff seeking fees under CCP section 1021.5 and the catalyst theorymust first have attempted to settle the matter short of litigation, unless efforts wouldhave been futile.

Facts: Plaintiff, a law enforcement agent for the California Division of Gambling,believed Indian tribes were not paying sums owed to the State under a Tribal-StateCompact. She filed a taxpayer action to compel the State Controller and CaliforniaGambling Control Commission to fulfill their duties to properly audit the tribes andcollect the State’s share of the revenues. One month before suing, and on the day shefiled suit, Plaintiff wrote letters to these defendants, respectively, demanding they fulfilltheir duties. After litigating the case up to the Court of Appeal and back to the trialcourt, the Commission completed audits and collected approximately $12 million.Plaintiff dismissed the case and, pursuant to stipulation, sought attorney’s fees underCCP section 1021.5 and the catalyst theory. The trial court awarded fees. The Court ofAppeal affirmed.


1. Plaintiff entitled to fees under CCP section 1021.5 and the catalyst theory.

2. Under the catalyst theory, the litigation need not be the only cause of defendant’sacquiescence, but it must be a substantial factor. Plaintiff demonstrated that thelitigation was a substantial factor in causing the Commission to change its position.Not so as to the Controller, as the Controller merely relies upon the Commission toperform its duties.

3. The plaintiff seeking fees under the catalyst theory must also show she madereasonable efforts to resolve short of litigation. Plaintiff’s day-of-suit letter to theCommission was insufficient, and her earlier letter to the Controller did not put theCommission on notice. However, the Commission’s intransigence in the litigationshowed that settlement efforts would have been futile. Thus, the trial court properlyawarded attorney’s fees to Plaintiff.



Jankey v. Song Koo Lee (2012) 55 Cal.4th 1038

Take-Away: Prevailing party, plaintiff or defendant, in disability access discriminationcase is entitled to fees under Unruh Civil Rights Act even though federal ADA onlypermits fee awards to prevailing plaintiffs.

Facts: Plaintiff filed suit against small market alleging disability access violations, underfederal and state law, including federal Americans with Disabilities Act (ADA) and stateUnruh Civil Rights Act. Defendant prevailed. Defendant moved for attorney’s feesunder Unruh Civil Rights Act, which, unlike the ADA, has a bi-lateral provision thatauthorizes awards of attorneys fees to whichever party prevails.

Holdings and Analysis: Plaintiff entitled to fees under state law.

1. The Unruh Civil Rights Act mandates attorney fee award to prevailing party,including to prevailing defendant. (Civ. Code § 55.)

2. The ADA does not preempt the Unruh Civil Rights Act’s bi-lateral attorney feeprovision.

a. Congress expressly opted not to preempt state laws which provide greater orequal protection than the ADA. (ADA § 501(b) [52 USC § 12201(b)].) The UnruhCivil Rights Act provides, at least in some respects, greater protection than theADA. Thus, Congress’ decision not to preempt extends to the attorney feeprovision of Unruh Civil Rights Act, irrespective of whether this provision of statelaw arguably provides lesser protection. By insulating state laws frompreemption, Congress “left to individual plaintiffs” the choice of law to invoke.

b. There is no conflict preemption. Where ADA and state law claims overlap, feesfor defending against a state law claim are not necessarily fees for the ADAdefense. The Court found the Ninth Circuit’s contrary conclusion to beunpersuasive.

c. There is no obstacle preemption. Permitting an attorney fee award to defendantswho successfully defend against federal and state disability discrimination claimsdoes not conflict with federal policy to permit awards to plaintiffs only. A plaintiffmay elect only to sue under federal law.

3. California law does not preclude an attorney fee award for overlapping state andfederal claims because, as discussed above, the award will not impair federal policyto permit the plaintiff to choose among potential remedies.

General Municipal Litigation Update · OAK #4812-4277-1218 v8 General Municipal Litigation Update For Cases Reported Between August 1, 2012, through April 12, 2013 Kevin D. Siegel

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