CITY OF TRACY Office of the City Attorney 325 East Tenth Street Tracy, CA fax

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1 CITY OF TRACY Office of the City Attorney 325 East Tenth Street Tracy, CA fax 2004 Annual Fall Conference September 17-19, 2004 Debra E. Corbett, City Attorney Bill Sartor, Deputy City Attorney GENERAL MUNICIPAL LITIGATION UPDATE For Cases Reported April 29, 2004 through August 12, 2004

2 (excluding land use, rent control, eminent domain, personnel, civil rights, and tort cases) List of Cases: I. Legal Foundations of Municipal Government Lockyer v. City and County of San Francisco 1 (Cal. August 12, 2004) Cal. II. Open Government and Ethics Bakersfield City School District v. Superior Court 1 (Cal.App. 5 Dist. May 20, 2004) 118 Cal.App.4 th 1041 Buono v. Norton 2 (9 th Cir. June 7, 2004) 371 F.3d 543 City and County of San Francisco v. Cobra Solutions, Inc. 2 (Cal.App. 1 Dist. June 10, 2004 and modified June 15, 2004) 119 Cal.App.4 th 304 Elk Grove School District v. Newdow 3 (U.S. Supreme Court June 14, 2004) 124 S.Ct Opinion of Bill Lockyer, Attorney General 3 No April 29, 2004) 87 Ops.Cal.Atty.Gen. 54 Opinion of Bill Lockyer, Attorney General 4 (No July 9, 2004) Ops.Cal.Atty.Gen. III. Elections Howard Jarvis Taxpayers Association v. City of San Diego 4 (Cal.App. 4 Dist. July 1, 2004) 120 Cal.App.4 th 374 Native American Sacred Site and Environmental Protection Association (NASSEPA) v. City of San Juan Capistrano 5 (Cal.App. 4 Dist. June 30, 2004) Cal.App.4 th i

3 Pettye v. City and County of San Francisco. 6 (Cal.App. 1 Dist. April 30, 2004) 118 Cal.App.4th 233 IV. Personnel Cases related to personnel and employment are covered in a separate session with the exception of cases related to motions seeking access to peace officers personnel files (i.e. Pitchess motions. Ebbert v. Superior Court 6 (Cal. May 19, 2004) Garcia v. Superior Court 6 (Cal.App. 4 Dist. July 27, 2004) Cal.App.4 th People v. Johnson... 7 (Cal.App. 4 Dist. May 4, 2004) 118 Cal.App.4 th 292 V. Finance and Economic Development City of Los Angeles v. Furman Selz Capital Management, L.L.C 8 (Cal.App. 2 Dist. August 9, 2004) Cal.App.4 th VI. Municipal Services and Utilities Bighorn Desert View Water Agency v. Beringson (Kelley).. 9 (Cal.App. 4 Dist. July 20, 2004) Cal.App.4 th City of Anaheim v. Pacific Bell Telephone Company 9 (Cal.App. 4 Dist. June 21, 2004) 119 Cal.App.4 th 838 City of St. Helena v. Public Utilities Commission (Cal.App. 1 Dist. June 21, 2004) 119 Cal.App.4 th 793 Valley Vista Services, Inc. v. City of Monterey Park.. 10 (Cal.App. 2 Dist. May 17, 2004) 118 Cal.App. 4 th 881 VII. Public Contracting Marshall v. Pasadena Unified School District. 11 (Cal.App. 2 Dist. June 29, 2004) 119 Cal.App.4 th 1241 ii

4 VIII. Public Property Cases related to eminent domain matters are covered in a separate session. Citizens for Improved Sorrento Access, Inc. v. City of San Diego. 12 (Cal.App. 4 Dist. May 14, 2004) 118 Cal.App.4 th 808 IX. Regulating Businesses and Personal Conduct Action Apartment Association, Inc. v. City of Santa Monica.. 13 (Cal.App. 2 Dist. May 25, 2004) 118 Cal.App.4th 1278 City of Littleton v. Z.J. Gifts, D-4, L.L.C.. 14 (U.S. Supreme Court June 7, 2004) 124 S.Ct City of San Diego v. Kevin B (Cal.App. 4 Dist. May 19, 2004) 118 Cal.App.4 th 933 Dieckmeyer v. Redevelopment Agency of the City of Huntington Beach 15 (Cal.App. 4 Dist. May 21, 2004) 118 Cal.App.4 th 1136 Fredenburg v. City of Fremont 16 (Cal.App. 1 Dist. June 11, 2004) 119 Cal.App.4th 408 RUI One Corporation v. City of Berkeley.. 17 (9 th Cir. June 14, 2004) 371 F.3d 1137 Southern Oregon Barter Fair v. Jackson County (9 th Cir. (Or.) June 24, 04) 372 F.3d 1128 Tom v. City and County of San Francisco 18 (Cal.App. 1 Dist. June 22, 2004) 120 Cal.App.4 th 674 Opinion of Bill Lockyer, Attorney General 19 (No July 12, 2004) Ops.Cal.Atty.Gen. iii

5 X. Land Use Cases related to land use matters are covered in a separate session. XI. Protecting the Environment Cases related to environmental regulations (CEQA, etc.) are covered in a separate session. XII. Code Enforcement City of Lodi v. Randtron. 19 (Cal.App. 3 Dist. May 5, 2004) 118 Cal.App.4 th 337 Congregation Etz Chaim v. City of Los Angeles. 20 (9 th Cir. June 16, 2004) 371 F.3d 1122 Homes on Wheels v. City of Santa Barbara. 21 (Cal.App. 2 Dist. June 28, 2004) 119 Cal.App.4 th 1173 Squaw Valley Development Company v. Goldberg.. 22 (9 th Cir. (Cal.) July 20, 2004) F. iv

6 (excluding land use, rent control, eminent domain, personnel, civil rights, and tort cases) I. Legal Foundations of Municipal Government Lockyer v. City and County of San Francisco (Cal. August 12, 2004) Cal. Absent a court having first determined that a state law limiting the granting of a marriage license to a man and a woman was unconstitutional, local officials exceeded their authority by deliberately declining to enforce that law based on their belief that such was unconstitutional. Local officials in the City and County of San Francisco refused to enforce the provisions of California's marriage statutes that limit the granting of a marriage license and marriage certificate only to a couple comprised of a man and a woman. The California Attorney General and three city residents filed petitions for writs of mandate, and requests for an immediate stay, alleging that actions of city officials in issuing marriage licenses to same-sex couples and solemnizing and registering the marriages of such couples were unlawful. The trial court denied the requests for an immediate stay. The California Attorney General filed with the California Supreme Court a petition for an original writ of mandate, prohibition, certiorari, and/or other relief, and a request for an immediate stay. Two days prior to that filing, three residents and taxpayers also filed a petition with the California Supreme Court seeking, inter alia, to compel the county clerk to cease and desist issuing marriage licenses to couples other than those who meet state law marriage requirements. The California Supreme Court consolidated both matters. [A] local executive official charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional. II. Open Government and Ethics Bakersfield City School District v. Superior Court (Cal.App. 5 Dist. May 20, 2004) 118 Cal.App.4 th 1041 Disciplinary records of a school district employee involving reasonably well-founded complaint of the employee s sexual type conduct and violence must be disclosed to newspaper, with information identifying complaining parties redacted, even if the charges were not administratively found to be true and no discipline was ever imposed. A newspaper filed a petition for writ of mandate seeking access to records relating to a School District employee s disciplinary history under the California Public Records Act. The trial court reviewed the records in camera and denied disclosure as to some of the records based on the 1

7 records not being substantial in nature and also because there was no reasonable cause to believe the complaints therein were well-founded. The trial court ordered other records to be produced related to the employee s alleged Sexual type conduct, threats of violence, and violence but only after such records had the names, addresses, and telephone numbers of all persons mentioned except for [the employee] redacted. The School District appealed, arguing, inter alia, that under the Act, disclosure of a complaint against a public employee is justified if the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded. The School District further argued that, to be deemed well-founded, a complaint must be true or discipline must have been imposed. The appellate court affirmed the trial court s decision. [N]either the imposition of discipline nor a finding that the charge is true is a prerequisite of disclosure of a complaint against a public employee that is of a substantial nature when there is reasonable cause to believe the complaint is well-founded. Buono v. Norton (9 th Cir. June 7, 2004) 371 F.3d 543 Latin cross on federal land violates Establishment Clause of the United States Constitution. Plaintiffs brought action in federal district court seeking removal of a Latin cross from federally owned land in the Mojave National Preserve. Plaintiffs alleged that allowing the cross to remain violates the Establishment Clause of the United States Constitution. The district court enjoined continued display of the cross, defendants appealed, and the 9 th Circuit affirmed. Even though cross located on federal land is not highly visible, is maintained by private individuals, and is intended as a war memorial, it still violates the Establishment Clause of the United States Constitution. City and County of San Francisco v. Cobra Solutions, Inc. (Cal.App. 1 Dist. June 10, 2004 and modified June 15, 2004) 119 Cal.App.4 th 304 If a City Attorney has left private practice, vicarious disqualification of the entire public law office is generally required in all matters substantially related to the City Attorney's earlier private representations. Prior to being elected as San Francisco s ( City ) City Attorney, and while in private practice, Dennis Herrera ( Herrera ) represented Cobra Solutions, Inc. ( Cobra ) on, inter alia, dealings with the City and an ongoing dispute with the City s Department of Building Inspections. After Herrera was elected, but as part of an investigation into technology contracting his predecessor had initiated prior to leaving office, the City added Cobra as a defendant in a lawsuit related to the investigation. The head of the City s Department of Building Inspections pled guilty to several crimes that were discovered as part of the technology contracting investigation. 2

8 Cobra moved to disqualify Herrera and the entire City Attorney s Office, alleging that Herrera s previous representation involved matters substantially related to the lawsuit. The City Attorney s Office argued that it had created an ethical screen so that Herrera had no further involvement with the case and that Herrera s prior representation did not involve matters substantially related to the current investigation. The trial court granted the motion to disqualify Herrera and his entire office and made findings that Herrera had personally represented Cobra, that he had obtained confidential information from Cobra, and that the subject of the prior representation was substantially related to the current lawsuit. The City appealed and the appellate court affirmed. Where the attorney leaves private practice to become the head of a public law office, vicarious disqualification of the entire public law office generally is required in all matters substantially related to the head of office's earlier private representations. [emphasis in original] Elk Grove School District v. Newdow (U.S. Supreme Court June 14, 2004) 124 S.Ct Non-custodial parent, deprived under California law of right to sue as next friend, lacks standing to bring Establishment and Free Exercise Clause challenges against school district s practice of having its teachers and student recite the pledge of allegiance that includes the words under God on a daily basis. Newdow brought an action in federal court against the school district where his daughter attends school. Newdow is the non-custodial parent of his daughter. Newdow alleged that the school district s practice of requiring each elementary school class to recite the pledge of allegiance containing the words under God constitutes religious indoctrination of his daughter in violation of the Establishment and Free Exercise Clauses of the United States Constitution. The magistrate judge concluded that the pledge is constitutional, the district court agreed, and the 9 th Circuit reversed. The United States Supreme Court granted certiorari and reversed the 9 th Circuit. Having been deprived of the right to sue as next friend under California law, Newdow lacks standing to bring the action as a non-custodial parent. Based on such lack of standing only, the 9 th Circuit s decision is reversed inasmuch as it determined that making public school children recite the Pledge containing the 1954 addition of the words under God is a violation of the Establishment Clause. Opinion of Bill Lockyer, Attorney General (No April 29, 2004) 87 Ops.Cal.Atty.Gen. 54 Under the California Emergency Services Act, a county officer may accept, and temporarily fill, the office of county supervisor without forfeiting his or her permanent office, provided the county officer only serves as a county supervisor during the state of emergency. 3

9 Opinion of Bill Lockyer, Attorney General (No July 9, 2004) Ops.Cal.Atty.Gen. The Local Health Care District Law governs both healthcare districts and hospital districts which are treated as equivalent entities under that Law. Government Code section 1090 prohibits the director of a healthcare district from being financially interested in any contract made by the healthcare district board. As such, the board of directors of a hospital district may not enter into a lease with a healthcare district director if the healthcare district board of directors is required to approve the agreement under the terms of a separate lease between the hospital district and the healthcare district. III. Elections Howard Jarvis Taxpayers Association v. City of San Diego (Cal.App. 4 Dist. July 1, 2004) 120 Cal.App.4 th 374 Local initiative charter amendment s super-majority vote requirement, instead of a simple majority, for enacting or increasing general taxes is unconstitutional under the California Constitution. Taxpayer association ( HJTA ) supported Proposition E ( Prop E ) which would have required a two-thirds voter majority of any new, or increased, general tax sought to be levied by the City of San Diego, a charter city ( City ). City opposed Prop E and placed a competing proposition, Proposition F ( Prop F ) on the same ballot. Prop F would have required any voter-initiated charter amendment that requires a super-majority before the City can take an action, to itself pass by the same proportionate super majority vote. Prop F would have also applied retroactively to the election date. Both propositions passed but neither passed by more than a simple majority. The City Council declared that the voters had approved Prop F but Prop E had failed because it did not pass by a two-thirds majority. HJTA and taxpayer ( Plaintiffs ) brought consolidated declaratory relief actions seeking a determination that Prop E was duly adopted by the voters and that Prop F is unconstitutional. City cross-complained and brought consolidated declaratory relief actions seeking a determination that, even if Prop F is unconstitutional Prop E is nonetheless invalid. Plaintiffs moved for summary adjudication on their complaints and in opposition to the City s crosscomplaints. City moved for summary adjudication on its cross-complaints. On the crossmotions for summary judgment, the trial court ruled in favor of Plaintiffs and upheld Prop E and invalidated key provisions of Prop F. City appealed and the appellate court affirmed as to the ruling invalidating the provisions of Prop F but reversed as to the ruling that Prop E was constitutional under the California Constitution. 1. The super-majority vote requirement for certain charter amendments under Prop F conflicts with a provision of the California Constitution, specifically Article XI, section 3(a) which provides that a City s charter may be amended by majority vote of its electors. As such, the supermajority requirement for certain charter amendments is unlawful. 4

10 2. Proposition 218 contained amendments to the California Constitution which conflict with, and preempt the local initiative known as Prop E. Proposition 218 provides that general taxes may be increased or enacted with a simple majority vote of the electorate. Therefore, Prop E s requirement that such taxes only be valid upon approval of two-thirds of the voters is unconstitutional and invalid. Thus, the voter-approval requirements of Proposition 218 are ceilings as well as floors, and local charters are not competent to impose stricter requirements. Native American Sacred Site and Environmental Protection Association (NASSEPA) v. City of San Juan Capistrano (Cal.App. 4 Dist. June 30, 2004) Cal.App.4 th City s duty to adopt, or submit to voters, ordinance proposed by certified initiative petition is ministerial and mandatory and remains so even where performance is beyond the statutory time frame set forth under Elections Code section Pueblo Serra, LLC ( Pueblo ) acquired interests in two pieces of property in City limits that Pueblo wishes to develop as a private high school. In September 2002, Pueblo qualified an initiative petition seeking to amend the City s general plan and to change the City s zoning designations for its property. In October 2002, Pueblo presented the initiative to the City and negotiated an implementation agreement with the City to mitigate certain conditions. Soon thereafter, the City passed an ordinance adopting the initiative and the implementation agreement. An unincorporated association, and two of its members, (the Association ) filed a petition for writ of mandate challenging the adoption of the initiative. The trial court ordered the City to set aside the ordinance adopting the initiative and the agreement because the Elections Code allows the City to adopt the initiative only without alteration and the implementation agreement constituted making an alteration to the initiative. In May of 2003, the City set aside the ordinance but, at the same meeting, passed a new ordinance that adopted the initiative verbatim without the implementation agreement. The Association filed another petition for writ of mandate seeking to set aside the new ordinance arguing that it was not valid due to being untimely and that it violated CEQA. City and Pueblo demurred, the trial court sustained both demurrers without leave to amend, and the appellate court affirmed. 1. A city's duty to adopt a qualified voter-sponsored initiative, or place it on the ballot, is ministerial and mandatory. [citations omitted] This duty remains, even where performance is beyond the statutory time frame. 2. [A] validly qualified voter-sponsored initiative is exempt from CEQA as a ministerial act as long as the material procedures of the Elections Code first are followed." [brackets and ellipses omitted]. 5

11 Pettye v. City and County of San Francisco (Cal.App. 1 Dist. April 30, 2004) 118 Cal.App.4th 233 City and County s voters have power to set general assistance standards of aid and care by initiative as matter is legislative, not administrative in character and had not been directly delegated to the Board of Supervisors by state law. City and County s voters passed Proposition N, the Care Not Cash initiative. Two residents filed an action challenging the Proposition s provisions, asserting that, under Welfare and Institutions Code section 17001, only the Board of Supervisors could amend the City and County s general assistance standards. The trial court found in favor of plaintiffs and the appellate court reversed. The plain language of Welfare and Institutions Code section is inconclusive as to whether the voters or the Board of Supervisors have exclusive power to enact general assistance standards of aid and care. Because the state s precise regulatory intent is not frustrated by resort to the initiative and referendum, the voters have the power to set general assistance standards of aid and care. IV. Personnel Cases related to personnel and employment are covered in a separate session with the exception of cases related to motions seeking access to peace officers personnel files (i.e. Pitchess motions.) Ebbert v. Superior Court, (Cal. May 19, 2004) Review granted. A summary of Ebbert v. Superior Court, 115 Cal.App.4th 1012, was previously presented during the General Municipal Litigation Update at the City Attorney s Spring Conference in May The California Court of Appeals for the 4th District held that information developed from information disclosed under the Pitchess motion procedure in an unrelated matter does not fall within the scope of a statutory protective order. On May 19, 2004, the California Supreme Court granted review of this case. Garcia v. Superior Court (Cal.App. 4 Dist. July 27, 2004) Cal.App.4 th Subject to proper notice, declarations in support of a Pitchess motion may be filed under seal, reviewed in camera outside the presence of the custodian or his or her attorney, and the custodian s attorney may receive a copy of the declaration with privileged information redacted. 6

12 Defendant was charged, inter alia, with assault with a deadly weapon on a custodial officer. The assault allegedly occurred during the booking process for other crimes. Defendant s counsel filed a Pitchess motion requesting the disclosure of personnel records for the six custodial officers allegedly involved in the altercation. Defendant s counsel submitted his declaration in support of the motion under seal and served a redacted version of that declaration on City s attorney. In its opposition to the motion, City argued that it could not adequately respond without first reviewing the sealed declaration. At the hearing, and at Defendant s counsel s request, the trial court conducted an ex parte in camera review of the sealed declaration outside the presence of the City s attorney. The trial court found that certain statements regarding Defendant s trial strategy could be disclosed to the City s attorney under an appropriate protective order but other statements were privileged under the attorney/client or work product privileges. The trial court noted that the material it intends to disclose to the city attorney is relevant and necessary for the city attorney to appropriately respond to the discovery. Defendant filed a petition for a writ of mandate/prohibition and the appellate court granted the petition. 1. Evidence Code section 1043 does not prohibit the use of sealed declarations in support of Pitchess motions. 2. [W]hen confronted with a sealed declaration in support of a Pitchess motion, the trial court should apply the [following] procedures First, the defendant who submits a sealed declaration must provide timely and proper notice to the third party, specifically claiming his or her attorney-client, attorney work product, or other recognized privilege or immunity. Second, the trial court must review the sealed declaration or affidavit in camera with defense counsel to determine what portions of the document, if any, contain legitimately privileged information. The court should then order that those limited portions of the document remain under seal. Finally, the redacted declaration is to be filed and served upon the custodian of records for proceedings on the merits of the defendant's motion. People v. Johnson (Cal.App. 4 Dist. May 4, 2004) 118 Cal.App.4 th 292 Trial court may not require additional evidentiary support before conducting in camera review of officer s personnel file when Defendant s counsel s declaration on information and belief was sufficient to satisfy Pitchess requirements. Defendant was charged with attempted possession of heroin and cocaine and filed a Pitchess motion for discovery of information in the arresting officer s personnel file pertaining to incidents of dishonesty, and / or the filing of false police reports. The prosecution opposed the motion, arguing primarily that it was an improper fishing expedition. Defendant s counsel s declaration alleged, on information and belief: I have also reviewed the information in our office file and discussed the case with [defendant], and have ascertained that [defendant] maintains that he never asked the officer for 'chiva' or 'powder' or negotiated for the purchase of either 7

13 substance. In fact, he never took possession of any packages of purported narcotics. [A]s a result of a review of the file and a review of the investigation reports of the officers concerning the present case, and other information, I am informed and believe that the police officer involved in the arrest of [defendant] has not been truthful, and that it will be a defense in this matter that the officer in question has a pattern of dishonesty, and/or the filing of false reports. [internal quotations omitted, brackets in original] The trial court summarily denied the motion without conducting an in camera review of the officer s file, stating that Defendant s counsel s declaration was insufficient to justify the in camera review without any other evidentiary support. Defendant appealed his subsequent conviction. The appellate court reversed and directed the trial court to conduct an in camera review of the officer s file. Defendant s counsel s declaration set forth a sufficient factual foundation showing [the officer s] truthfulness was material and Defendant s motion requested information pertaining to the officer s truthfulness with adequate specificity. V. Finance and Economic Development City of Los Angeles v. Furman Selz Capital Management, L.L.C. (Cal.App. 2 Dist. August 9, 2004) Cal.App.4 th If a financial corporation that is exempt from local taxation ignores the separate existence of its wholly-owned limited liability company for taxation purposes, then the limited liability company must be treated as a division of the financial corporation for the purposes of also being exempt from local taxation. A limited liability company ( LLC ) does business in the City. The LLC is wholly owned by a financial corporation that is exempt from most municipal taxes by virtue of paying higher net state income tax rate that the standard corporate rate. City attempted to impose a gross receipts business tax on the LLC and the LLC disputed the tax. City filed an action against the LLC to collect the tax. As a defense, the LLC alleged that it was wholly owned by a financial corporation and that the financial corporation had chosen to ignore the LLC s separate existence for tax purposes. The trial court ruled for the LLC, the City appealed, and the appellate court affirmed. If a financial corporation that wholly owns an LLC decides to ignore the LLC s separate existence for tax purposes, and the financial corporation is exempt from a City s gross receipts business tax, then the LLC is treated as a division of the financial corporation for the purposes of local taxation and is also exempt. 8

14 VI. Municipal Services and Utilities Bighorn Desert View Water Agency v. Beringson (Kelley) (Cal.App. 4 Dist. July 20, 2004) Cal.App.4 th Water Agency s usage based water rates are not property related and thus do not fall within the ambit of Prop. 218 s power of initiative. Water Agency charged rates based on water users voluntary consumption of water. Initiative proponent ( Kelley ) qualified an initiative petition for ballot that would have reduced the Water Agency s water rates and charges by about one-half and [would have required] two-thirds voter approval for any subsequent increases. Agency sought declaratory relief in the form of a judicial declaration that the initiative was invalid. Kelley filed a cross-petition for alternative writ of mandate and moved for judgment on the pleadings. The trial court ruled in favor of Agency and denied Kelley s cross-petition and motion. Kelley appealed and the appellate court affirmed. The California Supreme Court granted review and, after issuing its decision in Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4 th 409, transferred the matter back to the appellate court with directions to vacate the earlier decision and to reconsider it in light of the Richmond decision. The appellate court again affirmed judgment in favor of the Agency. 1. [T]he plain language of section 6, subsection (c) of California Constitution, article XIIID specifically excludes charges for water, from the requirement for voter approval. [internal quotations omitted, ellipses in original.] 2. Also, the Agency s usage-based water rates, and the related charges, are not property related or imposed as an incident of property ownership and thus do not fall within the ambit of Prop. 218 s power of initiative. City of Anaheim v. Pacific Bell Telephone Company (Cal.App. 4 Dist. June 21, 2004) 119 Cal.App.4 th 838 The Public Utilities Commission has exclusive jurisdiction to decide whether a telephone company must pay a city for the costs of undergrounding the telephone company s overhead facilities. City enacted an undergrounding ordinance requiring, inter alia, Pacific Bell Telephone Company ( PacBell ) to underground its overhead facilities (e.g., poles and wires). Subsequently, City passed a resolution designating a portion of the City as an underground district. The resolution required PacBell to underground, at PacBell s sole cost, all of PacBell s overhead facilities located in the district. PacBell agreed to underground its overhead facilities but not to pay the costs of doing so. City paid the costs of undergrounding under protest and filed suit in Superior Court seeking declaratory relief and monetary damages. PacBell demurred on the ground that the Public 9

15 Utilities Commission (the PUC ) had exclusive jurisdiction over the question of whether PacBell should be required to pay the costs of undergrounding its overhead facilities. The Superior Court overruled the demurrer, PacBell petitioned the Appellate Court for a writ of mandate, and the Appellate Court issued an alternative writ of mandate. The Superior Court complied by vacating its order overruling the demurrer and entering an order sustaining PacBell s demurrer without leave to amend. City appealed and the Appellate Court affirmed. The PUC has an existing policy or ongoing regulatory effort to establish the equitable determination of the order in which communities throughout the state should have their overhead facilities moved underground, a matter of statewide concern over which the PUC has jurisdiction. Therefore, the PUC has exclusive jurisdiction to decide whether [PacBell] is required to pay for putting its facilities underground. The doctrine of primary administrative jurisdiction requires undergrounding disputes to be litigated before the PUC rather than in Superior Courts. Anaheim s petition for review was filed July 28, City of St. Helena v. Public Utilities Commission (Cal.App. 1 Dist. June 21, 2004) 119 Cal.App.4 th 793 Napa Valley Wine Train is not a common carrier providing transportation and therefore is not a public utility. City sought annulment, at the appellate court level, of various decisions of the Public Utilities Commission (the PUC ) preempting the City from exercising jurisdiction over whether a Napa Valley Wine Train (the Wine Train ) can provide services into City s downtown without compliance with the City s zoning ordinance. Specifically, the City sought to overturn the PUC s determination that the Wine Train is a common carrier providing transportation and, as such, is a public utility. The appellate court ruled for the City. Transport is the taking of persons or property at some point and putting them down in another. [emphasis in original.] The Wine Train provides a round-trip excursion from Napa. The Wine Train is not a common carrier providing transportation and, as such, is not a public utility. Valley Vista Services, Inc. v. City of Monterey Park (Cal.App. 2 Dist. May 17, 2004) 118 Cal.App. 4 th 881 Exclusive franchise waste management ordinance requiring existing providers to only service their existing accounts is not preempted by the California Integrated Waste Management Act. Plaintiff serviced only 15 commercial waste disposal accounts in City. Facing the prospect of a compliance order and a $10,000 daily fine for not diverting at least half of its waste from landfills, City granted a 15-year, exclusive waste management franchise to Athens. City notified Plaintiff that it was awarding the exclusive franchise to Athens and that Plaintiff could continue to operate in City for five years pursuant to Public Resources Code section City also 10

16 notified Plaintiff that it could only service its then existing accounts, i.e., Plaintiff could not add new accounts. Plaintiff then added several new accounts and, after being warned again to stop adding accounts, informed City that section was silent on the subject of Plaintiff s ability to add new accounts during the five-year amortization period. The City amended its ordinance to provide that waste management companies that received notice of the exclusive franchise were limited to servicing their then-existing accounts. Plaintiff filed a mandate petition alleging, inter alia, that state law preempted the City s amended ordinance. The trial court denied the petition, Plaintiff appealed, and the appellate court affirmed. [T]he ordinance neither duplicates, contradicts, nor is preempted by the [California Integrated Waste Management] Act [and] [a]llowing trash haulers who do not conform to the new disposal system to expand their operations during the phase-out period could undermine the city s ability to conform to the Act, and therefore the Act itself. VII. Public Contracting Marshall v. Pasadena Unified School District (Cal.App. 2 Dist. June 29, 2004) 119 Cal.App.4 th 1241 A school district s termination of a contract for its own convenience does not constitute an emergency excusing the need for competitive bidding to finish the project under the Public Contracts Code. In late 2000, after following the competitive bidding process required under the Public Contract Code, School District (the District ) contracted with B.F. Construction, Inc. ( BFCI ) to complete a public works project to modernize an elementary school for nearly six million dollars. The contract allowed the District to terminate the contract for its own convenience provided the District paid BFCI for work already completed and in place. Approximately one year later, BFCI sent a letter to the District stating that the project was at a standstill due to numerous piecemealed change orders and inefficient project supervision. In that letter, BFCI recommended, as a possible solution to the problem, that the District invoke the termination provision and advertise for bids for the completion of the project. In early 2002, the District invoked the termination provision and BFCI submitted a 1.7 million dollar claim for work allegedly completed prior to termination. The District disputed the claim and BFCI assigned its claim to plaintiff. The District awarded the contract for completion of the project to a different contractor without following the Public Contract Code s competitive bidding procedures. Prior to the new contract award, the District passed a resolution declaring that completion of the project was an emergency and thus exempted from competitive bidding requirements under Public Contract Code section Plaintiff then filed a petition seeking a writ of mandate to preclude the District from making any payments to the new contractor and to require the District to advertise for bids to complete the 11

17 project and to award the project to the lowest responsible bidder. Plaintiff alleged that the 2002 contract award was unlawful because no emergency existed that would excuse the District from the Public Contract Code s competitive bidding requirements. The trial court granted the petition except for its order that the District pay the new contractor for any work it performed. The District appealed and the appellate court affirmed. Public Contract Code section 1102 defines emergency for the purposes of the entire Public Contract Code. Section 1102 defines emergency as a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action By its own terms, section 1102 is applicable to Public Contract Code section Therefore, because it is not a sudden, unexpected occurrence, termination of a contract for the District s own convenience does not constitute an emergency excusing the District from following the Public Contract Code s competitive bidding procedures. VIII. Public Property Cases related to eminent domain matters are covered in a separate session. Citizens for Improved Sorrento Access, Inc. v. City of San Diego (Cal.App. 4 Dist. May 14, 2004) 118 Cal.App.4 th 808 City has power to close public road to vehicular traffic after making findings that the road is no necessary for that purpose. Caltrans closed a one-mile portion of Sorrento Valley Road in San Diego (the Road ) to facilitate a highway project. Two years later after completion of that highway project, citizens requested that City re-open the Road. During consideration of an EIR regarding a coastal development permit for re-opening the road which indicated that reopening the road would have adverse environmental impacts, the City Council voted not to certify the EIR and instead directed staff to study using the Road as a recreational amenity for pedestrians and bicyclists and, possibly, limited vehicular access. After significant study, the City Council ultimately resolved to permit the Road to be used exclusively for bicyclists and pedestrians. In the resolution, the City Council made specific findings that road improvements and other transportation options in the area made the Road unnecessary for present or future vehicle traffic. Plaintiff filed a writ petition and complaint against City challenging the City Council s resolution and seeking declaratory relief and monetary damages. After review of the lengthy administrative record, the trial court ruled in favor of the City. Plaintiff appealed and the appellate court affirmed. The court s review of a City Council s determination that a street is unnecessary and / or no longer needed is highly deferential [and] limited to an inquiry whether the action was arbitrary, capricious or entirely lacking in evidentiary support. [internal quotations omitted]. 12

18 The City s decision that the Road was no longer necessary and could be closed pursuant to Vehicle Code section and Streets and Highways Code sections 8320 et seq. is supported by the administrative record. The fact that some persons desired to the use the road was not sufficient to defeat the City s finding that the road was not necessary. IX. Regulating Businesses and Personal Conduct Action Apartment Association, Inc. v. City of Santa Monica (Cal.App. 2 Dist. May 25, 2004) 118 Cal.App.4th 1278 Portion of City s ordinance that prohibits landlord from initiating eviction proceedings with malice and without cause preempted by state law. Plaintiff landlord association filed an action for declaratory relief and writ of mandate challenging portions of City ordinance entitled Tenant Harassment. The challenged portions of the ordinance included the following (the subsection ): No landlord shall, with respect to property used as a rental housing unit under any rental housing agreement or other tenancy or estate at will, however created, do any of the following with malice: (i) (1) Take action to terminate any tenancy including service of any notice to quit or other eviction notice or bring any action to recover possession of a rental housing unit based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord, (2) This subsection shall not apply to any attorney who in good faith initiates legal proceedings against a tenant on behalf of a landlord to recover possession of a rental housing unit Plaintiffs argued that the ordinance abridged their rights to free speech, to petition the government for redress of grievances, and to due process under the federal Constitution; violated their civil rights under 42 USC section 1983; and [is] pre-empted by Code of Civil Procedure section and Civil Code section 47, subdivision (b). The City demurred, arguing that Plaintiffs lacked standing regarding the federal constitutional arguments and that they did not state any causes of action. The trial court sustained the demurrer and entered judgment in favor of the City. Without discussing standing, the appellate court reversed and directed the trial court to enter judgment that the subsection is preempted by state law. Under the litigation privilege provided by Civil Code section 47(b), a landlord is immune from prosecution from suit for serving an eviction notice or filing an unlawful detainer action. The subsection would punish that which the litigation privilege protects and is thus preempted. Tenants may still seek redress by filing a malicious prosecution action under existing state law. 13

19 City of Littleton v. Z.J. Gifts, D-4, L.L.C. (U.S. Supreme Court June 7, 2004) 124 S.Ct Adult business ordinance that does not seek to censor content but, rather, conditions operation on neutral and non-discretionary criteria need not provide for unusually speedy judicial determination. Littleton, Colorado adopted an ordinance requiring adult businesses to obtain a license before operating in the City. The ordinance provides that the City s decision to deny a license may be appealed to Colorado district court. Without first obtaining an adult business license from the City, Plaintiff opened an adult bookstore in an area of the City not zoned for such uses. Plaintiff then brought an action in federal district court attacking the ordinance as facially unconstitutional. The district court rejected Plaintiff s claims and Plaintiff appealed. The 10 th Circuit Court reversed and held that that Colorado law does not assure that [the city s] license decisions will be given expedited [judicial] review; hence it does not assure the prompt final judicial decision that the Constitution demands. [internal quotations omitted; brackets and emphasis in original.] The United States Supreme Court reversed the 10 th Circuit Court. The adult business ordinance here simply conditions the operation of an adult business on neutral and non-discretionary criteria and does not seek to censor content. [Therefore,] an adult business is not entitled to an unusually speedy judicial determination and Plaintiff s facial constitutional challenge to the ordinance fails. The case cites the 9 th Circuit s holdings in Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097 (1998), which had required very speedy judicial review of licensing decisions involving adult uses and harmonizes the result by limiting the requirement for speedy judicial review and speedy resolution of judicial cases to cases in which the ordinance in question is limited to neutral and non-discretionary criteria. City of San Diego v. Kevin B. (Cal.App. 4 Dist. May 19, 2004) 118 Cal.App.4 th 933 Before a City may bring a petition to retain or destroy weapons under Welfare and Institutions Code section 8102, the person who owns or possessed the weapons must be detained for evaluation by a mental health professional pursuant to Welfare and Institutions Code section City police officers responded to a 911 call from Respondent s home. Respondent s mother informed the responding officers that Respondent had punctured her tire with a knife. Respondent s father indicated that he had recently had to replace another tire that Respondent had punctured. The father indicated that after he saw Respondent drive around the corner, he heard four gunshots. The father also informed the officers that Respondent was particularly angry with an auto restorer who had been involved in an accident with Respondent s exotic car. The father showed the officer where Respondent kept two guns, one in Respondent s bedroom and one in Respondent s car. The officers seized both guns. Respondent was never taken into custody. City filed a petition under Welfare and Institutions Code section 8102(c) alleging that return of 14

20 the weapons would endanger Respondent or others and seeking an order authorizing destruction of the weapons. The trial court granted the petition, Respondent appealed, and the appellate court reversed. Because Respondent was never detained so he could be assessed or evaluated by a mental health professional pursuant to Welfare and Institutions Code section 5150, the City lacks the power to bring a petition under Welfare and Institutions Code section 8102(c). Dieckmeyer v. Redevelopment Agency of the City of Huntington Beach (Cal.App. 4 Dist. May 21, 2004) 118 Cal.App.4 th 1136 Owner of affordable condominium unit is not entitled to sell the unit free of affordable housing restrictions based on increased income exception contained in the project s CC&Rs. In 1994, Plaintiff purchased a condominium unit ( condo ) as part of Redevelopment Agency s ( Agency ) affordable housing program. The condo developer included a provision in the recorded covenants, codes, and restrictions ( CC&Rs ) for the benefit of the Agency. That provision was to remain in effect for 30 years and required all buyers to record a covenant: (1) that will ensure that all subsequent buyers and occupants qualify as low, very low or moderate income households ; (2) that will require each deed to incorporate the CC&Rs and bind successors and all occupants to those CC&Rs; and, (3) that will require that the units not be sold, leased, or transferred without the Agency s written approval. The household income condition of the covenant contained the following exception: owner-occupants who were qualified buyers on the date of the sale but are no longer qualified by virtue of an elevation of household income since the date of sale will not be subject to this affordability covenant. Plaintiff s deed contained a clause by which she consented to the CC&Rs. The Agency lent Plaintiff $23,000 to help her purchase the unit. Plaintiff executed a promissory note for that amount in favor of the Agency, which was secured by a second deed of trust. That second deed of trust secured not only repayment of the note but also performance of a separate loan agreement. The note was due on sale and other specified events, but pre-payment was expressly allowed without penalty or fee. The loan agreement required Plaintiff to pay Agency an equity share if the loan came due prior to its 30 th anniversary. The loan agreement also required Plaintiff to execute such further documents, consistent with the terms of the loan agreement, as the Agency deems appropriate to effectuate it purposes in making the loan. In 2001, Plaintiff sought to prepay the loan. The Agency first demanded payment of its equity share but then informed Plaintiff she could prepay without the equity share if she agreed to execute a zero promissory note and second deed of trust. Plaintiff then petitioned for a writ of mandate. The trial court found that Plaintiff was not required to execute the zero note and deed of trust as a condition of prepayment, that Plaintiff was no longer subject to the CC&Rs affordability requirements because of the increased income exception, and that no event had yet triggered the duty to pay the Agency its equity share. By separate order, the trial court awarded Plaintiff $23, in attorneys fees, finding that the note s unilateral provision imposing attorneys fees against Plaintiff was, as a matter of law, reciprocal. The Agency appealed and the appellate court reversed in part, holding that Plaintiff was still subject to the CC&Rs so that Agency need not reconvey its deed of trust, but the Agency is neither entitled to the equity share nor may it require Plaintiff to execute a zero note and deed of trust as a condition of allowing prepayment. The appellate court also affirmed the attorneys fee award. 15

21 1. The Agency has no need for a zero deed of trust to protect its interests because its existing deed of trust secures both the note and performance of the CC&Rs and loan agreement. 2. The equity share is not due because prepayment of the loan does not make the loan due and payable. 3. The reasonable interpretation of the CC&Rs that carries out the intent of the contract is that the increased income exception to the affordability covenant frees an owner from the low to moderate income restrictions but nothing more, especially not the duty to make an equity share payment to the Agency upon sale. 4. Attorneys fee award stands because Plaintiff prevailed against Agency for right to prepay without additional conditions and a unilateral attorneys fees clause will be read as reciprocal. Fredenburg v. City of Fremont (Cal.App. 1 Dist. June 11, 2004) 119 Cal.App.4th 408 The placing of a pin map on City Police Department s website that places dots on the block of streets where high-risk and serious sex offenders reside but does not disclose the offenders names or specific addresses is not an unconstitutional invasion of the offenders privacy rights. City Police Department maintains a website that contains Megan s Law Sexual Offender Maps (the Maps ). The Maps consist of neighborhood street maps indexed by their proximity to a school, park or library. The Maps show where high-risk or serious sex offenders reside by placing a red or purple dot, respectively, on the block where each offender resides. The Maps neither identify any of the registered sex offenders by name nor do the Maps provide any of the offenders exact street addresses. Plaintiff alleged several causes of action under state and federal civil rights and tort theories. Plaintiff alleged that the Map showing a purple dot on the block of his residence disclosed the location of his place of residence without the reasonable suspicion required under Penal Code section The trial court granted the City s motion for summary judgment, Plaintiff appealed, and the appellate court affirmed. 1. The Maps placement of dots on the block of unidentified sex offenders residences does not disclose a sex offender s address for the purposes of Penal Code section because they do not disclose the sex offender s name or a sex offender s specific address. Rather, the Maps provide information that an unidentified sex offender resides within a general area of a community. 2. The disclosure that an unnamed sex offender lives in a general area does not violate his or her privacy rights. In other words, Megan s law is not a scarlet letter of derision but a red flag of warning. 16