Public Law Update November 2011

Transcription

1 Tan` Public Law Update November 2011 Curses, foiled again! Curtailing Vexatious Lawsuits Strategies for Government Entities By Martin Kosla Of Special Interest PUBLIC LAW...4 ENVIRONMENTAL LAW...6 LABOR AND EMPLOYMENT LAW...6 ABOUT OUR LAW FIRM...7 To obtain a free monthly subscription, visit:

2 Curtailing Vexatious Lawsuits Strategies for Government Entities By Martin Kosla State and local governments can often be targets for vexatious litigants. These do-it-yourself litigants can range from opportunistic citizens to inmates in county jails and state prisons. Often, their pro per cases have no merit and are dismissed at the summary judgment level, but not before a government entity has spent thousands of dollars on litigation fees. Luckily, there are some solutions that can help curtail these excessive and frivolous lawsuits, which can reduce city and state budgets. Martin Kosla, Esq. Associate mkosla@bwslaw.com 444 So. Flower Street Suite 2400 Los Angeles, CA Phone: Fax: California s Vexatious Litigant Statute One such solution is to have the pro per litigant declared as vexatious under California Code of Civil Procedure section 391(b). Under this section, a vexatious litigant is a self-represented plaintiff who has: (1) lost at least five pro per litigations in the preceding seven years; (2) sued the same defendant for the same cause of action or claim after losing a litigation; (3) repeatedly filed meritless motions or conducted unnecessary discovery in any litigation; or (4) previously been declared a vexatious litigant for similar reasons. In this context, the term litigation means any civil action or proceeding, commenced, maintained or pending in any state or federal court. Cal. Code Civ. Proc., 391, subd. (a). Once the court considers the previous dismissals and determines that they qualify, it can declare a litigant vexatious. The litigant s name is then entered onto a list, which is maintained by the Judicial Council and circulated to all the state courts. Once the pro per litigant is blacklisted, the court has several potential remedies. For example, the court can require the vexatious litigant to post bond before proceeding with his suit. Courts generally have the inherent power to enter pre-filing orders against vexatious litigants. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) citing 28 U.S.C. 1651(a). Before entering a pre-filing order, however, the court must allow the litigant due process, such as notice and the opportunity to be heard. Id. Additional Remedies for Vexatious Prisoners There are also solutions available to government entities that specifically apply to inmates and prisoners. For example, the court may revoke a prisoner s In Forma Pauperis (IFP) status if they have at least 3 strikes, forcing them to pay the filing fee or have his case dismissed. Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim. See, Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999). Thus, a dismissal without prejudice counts as a strike, as long as the dismissal is made because the action is frivolous, Burke, Williams & Sorensen, LLP (800)

3 malicious, or fails to state a claim. Id. Section 1915(g) does not distinguish between dismissals with and without prejudice, and therefore a dismissal without prejudice may count as a strike. O'Neal v. Price, 531 F.3d 1146, 1154 (9th Cir. 2008). Even if an IFP application is denied because the complaint fails to state a claim or is malicious or frivolous, the dismissal of that case counts as a strike. Proceeding IFP is a privilege, not a right. See, Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999). The Prison Litigation Reform Act ("PLRA") amended the portion of 28 U.S.C which deals with proceedings in forma pauperis. Specifically, the PLRA prohibits prisoners from bringing a civil action or appeal in forma pauperis... if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. 1915(g). Courts may consider and accept orders from any court of the United States, state and federal, when counting strikes of prisoner plaintiffs. 28 U.S.C. 1915(g). A court may take judicial notice of proceedings in other courts, both within and without the federal system. Bias v. Moyniham, 508 F.3d 1212, 1225 (9th Cir. 2007); see also, Young v. U.S., 88 Fed. Ct. 283, 287 (2009). The Ninth Circuit has held that defendants have the burden of producing sufficient documentary evidence to allow the court to conclude that a plaintiff has filed at least three prior actions that were dismissed as frivolous, malicious, or failed to state a claim. Andrews v. King, 398 F.3d 1113, 1116 (9th Cir. 2005). Once this has been done, the burden shifts to the plaintiff to persuade the court that 1915(g) does not preclude IFP status. Id. When the Court revokes an inmate's IFP status, the proper procedure is to dismiss the complaint without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). Alternatively, the court may require the inmate to pay the entire filing fee before proceeding. Retaining Information of Vexatious Litigants In order for government entities to take advantage of these solutions, information should be retained on frequent flyers, or court dockets should be searched once a lawsuit is filed. This will arm the entity s attorneys with information that will allow them to immediately ask the court to declare the litigant vexatious, or to revoke their IFP status, long before hundreds of hours are spent on defending the case. Burke, Williams & Sorensen, LLP (800)

4 Burke, Williams & Sorensen, LLP, 2011, all rights reserved. The case law summaries with a link to the web address are provided as a courtesy to Burke, Williams & Sorensen, LLP, its clients, and its prospective clients by the Metropolitan News-Enterprise. Metropolitan News-Enterprise, SOS and MNC are registered trademarks of the Metropolitan News Company. Summaries are copyrighted by Metropolitan News Company 2011, all rights reserved. The Public Law Update is edited by Erica L. Vega. The cover page photo is by Shutterstock. PUBLIC LAW A state may condition access to state property so long as the conditions do not impose costs that compel the carrier to change rates, routes, or services. When an independent state entity manages access to its facilities and imposes conditions similar to those that would be imposed by a private landlord in the state s position, the state may claim the market participant doctrine. States have power to limit motor carrier access to particular land to further safety. Federal Aviation Administration Authorization Act did not preempt requirements contained in concession agreements which motor carriers were required to enter into with state entity to operate drayage trucks on that entity s property that a concessionaire demonstrate its financial capability to perform its obligations under the agreement; that the concessionaires be responsible for vehicle condition and safety; that the concessionaires post placards on their vehicles that referred members of the public to a phone number to report concerns regarding truck emissions, safety, and compliance; and that concessionaires submit for approval an off-street parking plan for permitted trucks. Provision requiring concessionaires to transition over five years to using employee drivers rather than using independent owner-operators was preempted by the FAAA Act because it was tantamount to regulation. American Trucking Associations, Inc. v. City of Los Angeles; filed September 26, 2011, amended October 31, Cite as City ordinance barring operation of medical marijuana dispensary is not preempted by Compassionate Use Act or Medical Marijuana Program. City of Riverside v. Inland Empire Patient s Health and Wellness Center, Inc.; Fourth District, Div. Two; filed November 9, Cite as 2011 S.O.S Burke, Williams & Sorensen, LLP (800)

5 Under California s quick-take eminent domain procedure whereby a public entity filing a condemnation action seeks immediate possession of the condemned property upon depositing with the court the probable compensation for the property if a lender holding a lien on the property applies to withdraw a portion of the deposit, the property owner s failure to object does not constitute a waiver of the property owner s claims and defenses. Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market LLC; filed November 14, Cite as 2011S.O.S A county s finding that a project site is not physically suitable does not relieve the county from compliance with Government Code Sec (j) if the threshold compliance standards of that statute are met and if the county denies approval for reasons other than compliance with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect. Honchariw v. County of Stanislaus; Fifth District; filed November 14, Cite as 2011 S.O.S Trial court could determine whether challenged publications constituted informational or campaign materials as a matter of law. Timing of the mailers was not dispositive. Challenged publications were informational materials related for which public funds could be used where the materials were primarily informative and moderate in tone; making the publications attractive and readable so more people would read the information in them is consistent with the legitimate dissemination of information. Peninsula Guardians, Inc. v. Peninsula Health Care District; First District, Div. Three; filed October 21, 2011, publication ordered November 14, Cite as 2011 S.O.S Joint Labor/Management Benefits Committee, established by community college district and its employees to administer medical and other benefits, was not subject to the Ralph M. Brown Act because it was created as part of, and for the purpose of furthering, the collective bargaining process under the Education Employee Relations Act. Californians Aware v. Joint Labor/Management Benefits Committee; Second District, Div. Five; filed November 14, 2011 Burke, Williams & Sorensen, LLP (800)

6 Cite as 2011 S.O.S ENVIRONMENTAL LAW Air quality management district's rule imposing monitoring requirements on natural gas distributor is reasonable because distributor derived gas from liquefied natural gas. Southern California Gas Company v. South Coast Air Quality Management District et al; Second District, Div. Five; filed November 15, Cite as 2011 S.O.S LABOR AND EMPLOYMENT LAW Trial court properly applied after-acquired evidence doctrine to police officer s wrongful termination by cutting off accrual of officer s backpay at the day he pleaded no contest to two state law felonies; although the accrual period might have stopped running earlier had an administrative hearing been conducted and that administrative hearing established officer s wrongdoing, county which violated POBRA by denying officer the administrative hearing required by the statute before terminating him, could not argue that his plea retroactively meant he was unqualified for his job. Since no wrongdoing was established until officer entered his plea, the same analysis applied to the after-acquired evidence doctrine applies to the unclean hands defense as well. To make a high-ranking peace officer an at-will employee is, in effect, to strip that officer of the rights to notice of discipline and an administrative hearing that are central to POBRA; accordingly, waivers which purport to make such an officer an at-will employee are not enforceable. Labor Code Sec s whistleblower protection applied to officer who reported wrongdoing to the county sheriff, who also happened to be the wrongdoer. Jaramillo v. County of Orange; Fourth District, Div. Three; filed November 8, Cite as 2011 S.O.S Contract which called for tree pruning and removal of diseased trees along state highways constituted a public work contract under Labor Code Sec and thus fell within the ambit of the Prevailing Wage Law. Reliable Tree Experts v. Baker; First District, Div. Two; filed November 7, 2011, publication ordered November 7, 2011 Burke, Williams & Sorensen, LLP (800)

7 Cite as 2011 S.O.S A government agency is not a person who can file a false claim for purposes of the False Claims Act, but it does qualify as an employer which can be liable for retaliatory discharge. Act s retaliation provision applies not only to qui tam actions but to false claims in general. Agency s successful invocation of the attorney-client privilege barred it from using at trial evidence it had successfully withheld from discovery. Cordero-Sacks v. Housing Authority of the City of Los Angeles; Second District, Div. Eight; filed November 17, Cite as 2011 S.O.S ABOUT OUR LAW FIRM At Burke, Williams & Sorensen, LLP, diversity precisely describes not only our demographic makeup, but also the scope of our legal expertise, both of which support our ability to fulfill your legal needs. We are as diverse as California itself. The broad range of our areas of expertise mirrors California s own vitality, with respected, proven practices in five general areas: Public Law Education Law Labor & Employment Law Litigation Real Estate & Business Law Our firm has offices throughout California: Los Angeles Inland Empire Oakland Orange County Palm Desert Silicon Valley Ventura County Burke, Williams & Sorensen, LLP (800)