LITIGATION UPDATE. January 21, 2010

Transcription

1 1400 K Street, Suite 400 Sacramento, California Phone: Fax: LITIGATION UPDATE January 21, 2010 The following report summarizes the cases reviewed by the League s Legal Advocacy Committee ( LAC ) from September 24, 2009, through January 21, 2010, and the League s subsequent action. Copies of the amicus filings mentioned in this report are available at To submit a request for amicus assistance from the League, please visit the League s website at For additional information, please contact Patrick Whitnell, General Counsel, at (916) or pwhitnell@cacities.org, or Kourtney Burdick, Deputy General Counsel, at (916) or kburdick@cacities.org. The League gratefully acknowledges all of the lawyers who volunteered their time to assist the League in advocating on behalf of cities statewide. EMPLOYMENT International Association of Fire Fighters, Local 188 v. Public Employment Relations Board, (1st Dist., Div. 3, March 18, 2009), petition for review granted (July 8, 2009) (S172377) The City laid off 18 firefighters as part of a city-wide layoff. In response, Local 188 filed an unfair practice charge with PERB alleging the City violated the Meyers Milias Brown Act (MMBA) by failing to meet and confer with the union about the layoff decision. PERB dismissed the charge on the ground that a layoff decision is not within the scope of representation. Local 188 filed a petition for writ of mandate challenging the decision. PERB and the city opposed the petition, arguing 1) the court lacked jurisdiction to review a PERB refusal to issue a complaint; and 2) in any event, the city s layoff decision was not a mandatory subject of bargaining under the MMBA. The trial court held it had jurisdiction to review PERB s decision not to issue a complaint, but on the merits, the court upheld PERB s determination that the city s layoff decision was outside the scope of representation. The appellate court affirmed and the Supreme Court has granted review. The League thanks James T. Diamond, Jr. and Xochitl Carrion of Goldfarb & Lipman for drafting the League s brief to the Supreme Court, supporting the City s argument that the layoff decision is not subject to collective bargaining. Retired Employees Association of Orange County, Inc. v. County of Orange, 632 F.Supp.2d 983 (C.D. Cal. Jun. 19, 2009), pending 9th Cir. ( ) Since approximately 1966, the County has provided health care benefits to its retired employees. In 1985, the County began pooling the retired employees with the active employees in the rate- - 1 of 5

2 setting process. Pooling the two groups allowed retirees to pay lower premiums and receive greater coverage than they otherwise would (the pooling benefit ). Facing rising health care costs, in 2006, the County decided to split the pool, creating different premium pools for active and retired employees. Under the new system, retirees pay significantly higher premiums then they paid while receiving the pooling benefit. The Retired Employees Association brought suit, asserting a vested right to the pooling benefit. The County argues that because the board of supervisors never made an express commitment to subsidize retiree rates through pooling, there was no enforceable contract right or vested right. The trial court agreed. The Association has appealed to the Ninth Circuit. The League thanks Jonathan Holtzman, Steve Cikes, and Kerry R. O Donnell of Renne Sloan Holtzman Sakai for drafting the League s brief in support of the County. INSURANCE City of Carlsbad v. Insurance Company of the State of Pennsylvania, 180 Cal.App.4th 176 (4th Dist. Nov. 20, 2009) This lawsuit arises out of a landslide that occurred as a result of the City and Water District s negligent maintenance of its water system, which caused a hillside to become saturated with water. The landslide resulted in damage to several condominiums, and the City paid roughly $12 million to settle lawsuits brought by the homeowners. The City sought indemnity from its liability insurer, which the company denied. The trial and appellate courts sided with the insurance company. The appellate court held coverage was barred by a policy exclusion that provided, [w]e will not defend or pay under this Policy for claims or suits against you: for property damage arising out of land subsidence for any reason whatsoever. (Italics added.) The policy defined land subsidence as the movement of land or earth, including, but not limited to, sinking or settling of land, earth movement, earth expansion and/or contraction, landslide, slipping, falling away, caving in, eroding, earth sinking, and earth rising or shifting or tilting. (Italics added.) The League is monitoring this case. LAND USE California Native Plant Society v. City of Santa Cruz, 177 Cal.App.4th 957 (6th Dist., Aug. 20, 2009), request for depublication and review denied (Cal. Dec. 17, 2009) (S177419) The City approved a master plan for Arana Gulch, a city-owned greenbelt property. As acknowledged in the EIR and in findings made by the City, the project would have a significant effect on the habitat of the Santa Cruz tar plant due to the chosen alignment of a multiuse trail. The City nevertheless found that overriding considerations warranted approval. On appeal, California Native Plant Society (CNPS) argued the City violated CEQA by failing to properly analyze feasible alternatives to the project, particularly an off-site location for the multiuse trail. The appellate court disagreed and held the city properly analyzed the alternatives and permissibly rejected those alternatives in light of other policy considerations. CNPS has petitioned for rehearing and depublication, which the court denied. The League thanks Michelle Ouellette of Best, Best & Krieger for drafting the League s letter opposing depublication. - 2 of 5 -

3 Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. Sept. 28, 2009) ( ), petition for en banc review pending In 1979, the County enacted a mobile home rent control ordinance (RCO). In 2002, the City incorporated within the County and adopted the RCO by reference. The RCO limits rent increases on the pads or plots of land that mobile homes occupy to 75 percent of the increase in the local consumer price index. The ordinance also caps rent increases at 10 percent when a unit is sold. Plaintiffs purchased a mobile home park within the City in A month after the city incorporated, Plaintiffs brought a facial challenge to the RCO, claiming the ordinance worked an unconstitutional taking. The Ninth Circuit agreed. The dissent stated, I cannot agree that there was a taking of anything for which [Plaintiffs] would be entitled to compensation, because they purchased the park after the regulatory takings that mattered. The City has petitioned for en banc review, which the League supported. The League thanks Fran M. Layton, Andrew W. Schwartz, Ellison Folk, Mathew D. Zinn, and Amanda R. Garcia of Shute, Mihaly & Weinberger for drafting the League s brief. Sprint v. City of Palos Verdes Estates, 583 F.3d 716 (9th Cir. Jul. 6, 2009) ( ), petitions for rehearing and en banc review denied (Nov. 27, 2009) Based on aesthetic concerns, the City denied Sprint s request to construct two wireless telecommunications facilities (WTFs) in the public right-of-way. Sprint sued the City under the Federal Telecommunications Act, arguing aesthetics were not a proper basis for denying placement of WTFs. The trial court agreed, but the Ninth Circuit reversed, concluding federal and state law permit municipalities to regulate WTFs based on aesthetics. The League planned to oppose Sprint s requests for rehearing and en banc review, but the court denied Sprint s requests before the League could submit. PROPOSITION 218 Paland v. Brooktrails Township Community Services District Board of Directors, 176 Cal.App.4th 158 (1st Dist. Jul. 31, 2009) (A122630), on remand from the Supreme Court (Oct. 14, 2009) The Community Services District (CSD) padlocked Paland s water meter after he failed to pay water fees. The CSD continued to charge Paland a minimum monthly service charge because he never deactivated his account. Paland argued the minimum monthly service charges were invalid as they were not approved as assessments under Proposition 218. The specific provision of Prop. 218 at issue states, "No fee or charge may be imposed for service unless that service is actually used by, or immediately available to, the owner of the property in question. Fees or charges based on potential or future use of a service are not permitted. Standby charges, whether characterized as charges or assessments, shall be classified as assessments and shall not be imposed without compliance with Section 4['s property-owner election requirement]." The appellate court concluded the service was "immediately available" because all Paland had to do was pay his bill. The Supreme Court granted review and remanded the case back to the First District, at that court s request, to fix an error in the opinion. Michael G. Colantuono of Colantuono & Levin prepared an amicus brief on the League s behalf in support of the CSD, but the opinion was republished before the brief was submitted. The revised opinion remains favorable to local governments. - 3 of 5 -

4 TORT LIABILITY Bryan v. McPherson, -- F.3d ---, 2009 WL (9th Cir. Oct. 9, 2009) (No ), petition for en banc review pending Officer McPherson deployed his taser against Bryan during a traffic stop for a seatbelt infraction. At the time, Bryan was standing roughly 20 feet away and had not physically or verbally threatened the officer, although there is a dispute as to whether Bryan took a step towards the officer. Bryan brought suit for excessive force in violation of the Fourth Amendment. The officer asserted qualified immunity, which the district court denied and the Ninth Circuit affirmed. The court held that use of a taser constitutes an intermediate, significant level of force that must be justified by a strong government interest [that] compels the employment of such force. The court concluded no such interest was present in this case and the use of the taser violated Bryan s clearly established rights. Accordingly, the court denied the officer s motion for qualified immunity. The City has petitioned for en banc review, which the League supported. The League thanks Scott D. Wiener, Deputy City Attorney, San Francisco, for drafting the League s brief. Guzman v. County of Monterey, 178 Cal.App.4th 983 (6th Dist., Oct. 28, 2009), petition for review filed (Dec. 3, 2009) (S178397) Residents of a mobile home park brought a negligence action against the County, alleging that park water was contaminated with dangerously high levels of naturally occurring fluoride since at least 1995, but that residents were not told about the contamination until The trial court granted the County s motion to dismiss. The appellate court reversed, holding that the County had an implied mandatory duty to direct the park owner to notify his customers of the contamination. The Supreme Court disagreed, concluding the County did not have an implied mandatory duty, and remanded the case to the appellate court to determine whether the County had an express mandatory duty that it usurped. On remand, the Court of Appeal held the County had an express mandatory duty to undertake a monthly review of all water quality monitoring data in order to detect abnormalities. The court further concluded that this duty was designed to protect water consumers like the park residents. Therefore, the residents alleged a sufficient cause of action for breach of a mandatory duty. The court further concluded no statutory immunity bars the residents action. The County has petitioned for review, which the League will support. Tichinin v. City of Morgan Hill, 177 Cal.App.4th 1049 (6th Dist. Sept. 21, 2009), petition for review and depublication denied (Cal. Jan. 13, 2010) (S177501) Bruce Tichinin, a local attorney, hired a private investigator to conduct surveillance of the city manager, who Tichinin believed was having an affair with the then-city attorney. When a councilmember asked Tichinin if he was involved in the surveillance, Tichinin said no. Tichinin later admitted his involvement. The city subsequently adopted a resolution condemning Tichinin and his actions. In response, Tichinin filed a Section 1983 claim against the city, alleging the city unlawfully retaliated against him for exercising his First Amendment rights. The city filed an anti-slapp motion to strike the action, arguing the resolution was a proper exercise of the city s First Amendment rights. The trial court granted the motion and the appellate court reversed. While the appellate court agreed the city s activities were protected by the First Amendment, the court held Tichinin demonstrated a probability of success on his claim after - 4 of 5 -

5 concluding his activities were also protected by the First Amendment. The League thanks Vince Chhabria, Deputy City Attorney, San Francisco, for drafting the League s letters in support of review and depublication, which the court denied. REQUESTS FOR VIEWS FROM THE ATTORNEY GENERAL Opinion No A request from Louis B. Green, County Counsel, for an opinion of the Attorney General on the following question: Are the fees required to be collected by cities, counties, and cities and counties under Section of the California Health and Safety Code validly levied as fees, or do they constitute an unlawful tax? The League is monitoring this question. Opinion No A request from Ronald L. Calhoun, District Attorney, for an opinion of the Attorney General on the following question: May a Water District hold its board meetings at the principal office of the Water District if the principal office is located outside the jurisdiction of the Water District? The League is monitoring this question. - 5 of 5 -