Tuesday, May 31, 2011, 10:33:43 AM
Claim Mailed to Public Entity's Risk Management Department Substantially Complies with Claims Requirement
In an opinion published May 26, 2011 the California Court of Appeal, Sixth Appellate District, held that a tort claim mailed to a public entity's risk management department satisfies the claims presentation requirement under Government Code Section 915. The plaintiff in the case, DiCampli-Mintz v. County of Santa Clara, H034160, underwent surgery at a County hospital, suffered complications, and claimed that the County and two of its physician employees were at fault. Her attorney mailed a claim to the two County physicians, and the County's Risk Management Department. The Risk Management Department received the claim shortly thereafter, and forwarded it to the County's attorneys.
Under Section 915, a claim against a local public entity must be presented by (1) delivering it to the entity's clerk, secretary or auditor; (2) mailing it to the entity's clerk, secretary or auditor; or (3) actual receipt by the entity's clerk, secretary or auditor. Although there was no evidence that the plaintiff complied with this requirement, the Court of Appeal noted that a claimant will substantially comply with the claims presentation requirement where the claim is given to a person or department whose functions include the management or defense of the claims against the public entity, in this case, the County's Risk Management Department.
Although this case does not present a significant change in the law, it is an important reminder that claimants probably comply with the claims presentation requirement when they present their claims to local public entities' risk management and/or legal departments.
Thursday, May 26, 2011, 01:27:51 PM
City Approval Of Preliminary Terms for New Football Stadium Was Not A Project Approval And Did Not Violate CEQA
Cedar Fair, L.P. v. City of Santa Clara
In the latest case interpreting Save Tara, the Sixth District Court of Appeal found that the City of Santa Clara did not violate CEQA when it approved preliminary terms for a new football stadium. The City had adopted a 39-page Stadium Term Sheet which detailed proposed construction, financing and other provisions for development of a stadium for the 49ers National Football League team. Despite the detailed description of the proposed stadium project and supportive statements by City officials, the court determined that the term sheet did not commit the City to approve the stadium project and did not rule out consideration of mitigation measures or alternatives in later CEQA reviews.
This case confirms the Save Tara principles that determining whether a development-related agreement constitutes a project approval under CEQA is highly factual. In addition to extensive discussion of Save Tara, the analysis sets forth the relevant facts from the stadium term sheet and "surrounding circumstances" and shows how they balance in favor of the City's action in this instance. The recent Parchester Village Neighborhood Council case cited in the decision also balanced the relevant facts in favor of a city action, finding that approval of a municipal services agreement was not a project approval. By contrast, the Riverwatch case cited in the decision determined that a water district agreement to provide recycled water to a landfill operator was invalid because it committed the agency to action without benefit of CEQA compliance. Through Cedar Fair and other recent cases, the courts are providing useful guidance on how the facts of a particular situation may weigh one way or the other in the Save Tara balance.
Go here for the full analysis of the Cedar Fair case.
Thursday, May 26, 2011, 07:03:48 AM
Deadline for Cities to Challenge 2010 Census Approaching
Census figures matter, and the window of time for cities to challenge these figures is rapidly closing on June 21. Census data is used to distribute funds for over 170 federal programs for housing, crime prevention, transportation, and job training.
It should come to no surprise that when the U.S. Census Bureau released the 2010 population count, cities that were reported to be declining in population started issuing challenges. Detroit, a city that has been battling population decline for years, immediately commenced a challenge process. Detroit officials are now focusing on finding the 40,000 missing people that allow the city to charge higher taxes. (Although Detroit may have a population surge after after this viewers-favorite Chrysler 200 Detroit superbowl commercial.) Several California cities, such as Santa Ana, San Jose and Long Beach, are also threatening to issue Census challenges.
If a city would like to challenge the 2010 Census numbers, it must follow the process outlined by federal law. The first step is for the highest elected official in the city to send an intent to challenge letter to the U.S. Census Bureau within 180 days of the estimate’s release. Since the Census Bureau released census information on December 21, 2010, cities have until June 21, 2011 to issue this letter. The Census Bureau will then send the city a packet of forms that must be completed and received by the Bureau no later than October 1, 2011. To find out more information, go here.
Monday, May 23, 2011, 12:56:00 PM
Spay/Neuter Ordinance Is A Valid Exercise of City’s Police Power
Local governments considering spay/neuter regulations as a method for controlling pet overpopulation may use the Los Angeles city ordinance (section 53.15.2) as a model. On April 29, the Court of Appeal endorsed the City of Los Angeles’ spay/neuter ordinance, holding that the ordinance was a valid exercise of the city’s police power and that it did not implicate constitutional considerations. (Concerned Dog Owners of California v. City of Los Angeles.) The ordinance requires owners of dogs and cats to spay or neuter their pet unless an exemption applies. Examples of pets exempted from the ordinance include pets whose owners obtain a breeder’s permit, guide and service dogs, and animals groomed to participate in shows or competitions.
The city’s ordinance survived free speech and association, overbreadth, vagueness, due process, equal protection, takings, Tenth Amendment and individual liberties challenges.
You can read the full opinion here.
Thursday, May 19, 2011, 12:56:22 PM
Public Records Act Requires Disclosure of County Retiree Pension Information
On May 11, the Court of Appeal held in Sacramento County Employees’ Retirement System (SCERS) v. Superior Court that SCERS must disclose, in response to a Public Records Act request, the names and corresponding pension benefit amounts received by its retiree members. Information that must be disclosed includes the name, date of retirement, department retired from, last position held, years of service, base allowance, cost of living adjustment, total health allowance and monthly pension benefit of each retiree. According to an article in the Sacramento Bee (a real party in interest in the case), this is the first appellate court decision on this issue, although the California Supreme Court held in 2007 that public employee names and associated salaries are disclosable public records.
The Court noted that this disclosure obligation does not extend to retirees’ home or email addresses, telephone numbers or social security numbers.
You can read the full opinion here.
Wednesday, May 18, 2011, 01:08:35 PM
Mobile Home Rent Control Ordinances Still a Viable Option in California
On May 17, 2011, the U.S. Supreme Court refused to hear a developer’s challenge to the City of Goleta’s mobile home rent control ordinance, ending a long court battle over the future of the high value real estate and the validity of rent control regulations for mobile home parks in California. (See Guggenheim, et al. v. City of Goleta, 598 F.3d 1061 (9th Cir.(Cal.) Mar 12, 2010), cert denied --- S.Ct. ----, 2011 WL 884881, 79 USLW 3554 (U.S. May 16, 2011).) In December, an en banc panel of the Ninth Circuit upheld the ordinance, rejecting the Guggenheim’s regulatory takings claim finding that none of the three factors for establishing a regulatory taking, set forth Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), were satisfied. (Click here to read prior post on Ninth Circuit ruling.) This decision affirms the validity of rent control regulations as a tool for municipalities to provide housing options for lower income residents.
Monday, May 9, 2011, 03:08:31 PM
Court of Appeal Approves Public Employee Termination for Posting Craigslist Sex Ad While Off-Duty
In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty. The ad neither identified the school nor that he was a teacher. Nevertheless, the Court found the dismissal was justified based on the teacher's "evident unfitness" to serve as a teacher and that he had engaged in "immoral conduct" in posting the ad.
In reversing the decision of the Superior Court (which upheld the Commission's finding of no cause for dismissal), the Court of Appeal affirmed the principal that "[t]here are certain professions which impose . . . responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policemen and schoolteachers fall into such a category."
The Court's decision relied in part on the United States Supreme Court's ruling in City of San Diego v. Roe, 543 U.S. 77 (2004). In Roe, the Court upheld the termination of a police officer discharged for selling homemade pornographic videos on an online auction site. Notably, the Court held that although the police officer's activities occurred outside of work and were purportedly unrelated to his employment, they were nonetheless "detrimental to the mission and functions of the employer." Accordingly, the City of San Diego was justified in disciplining the officer for his conduct.
The Court of Appeal in Lampedusa applied this same principal to find that "the disciplinary action taken by the District did not have an adverse impact or chilling effect on Lampedusa's constitutional rights." The decision thus supports the idea that, despite the substantial limitation on an agency's ability to discipline public employees for off-duty conduct, courts will uphold discipline for off-duty conduct when there is a sufficient nexus to the workplace, and are more likely to find that nexus with particular job classifications such as public safety.
PRACTICE TIP: A public employer considering discipline for off-duty conduct should carefully scrutinize the conduct at issue and surrounding circumstances in evaluating whether there is a sufficient nexus to the workplace to justify the discipline. As noted in the Lampedusa and Roe decisions, a public employee's position and job responsibilities can factor into that analysis.
Wednesday, May 4, 2011, 11:08:41 AM
Ordinance Restricting Storage and Parking of Recreational Vehicles on Private Property Held Constitutional
On May 2, 2011, in Disney v. City of Concord, the California Court of Appeal, First Appellate District held that an ordinance regulating the storage and parking of recreational vehicles, including boats and other recreational equipment, on residential property was within the City of Concord’s police power.
The ordinance at issue generally prohibits the storage of recreational vehicles on front yards and driveways and requires that recreational vehicles stored in side and rear yards be located behind a six-foot high opaque fence. In addition, the ordinance limits the length of time that a recreational vehicle can be parked in a driveway for purposes of loading or unloading to 72 hours before or after a trip.
The plaintiff filed suit against the City arguing, among other things, that the ordinance exceeded the City’s police power because it was adopted primarily out of concern for community aesthetics. The Court rejected the plaintiff’s argument, reasoning that it is well established that the concept of public welfare includes aesthetic values. The Court also noted that the ordinance is “typical” as nearly all of the cities in Contra Costa County regulate the storage of recreational vehicles on private property to some extent.
For the complete opinion, click here.
Monday, May 2, 2011, 06:07:01 PM
Bill Introduced to Regulate Protests at Funerals
In the wake of the charged March 2nd U.S. Supreme Court decision, Snyder v. Phelps, the California Senate has proposed SB 888, which outlaws protests on public property within 1,000 feet of a burial site, mortuary, or place of worship, from one hour before, to one hour after, a funeral.
In Snyder, the Supreme Court held that the First Amendment protected the right of the Westboro Church to silently picket 1,000 feet from the funeral of a soldier while church members displayed various religious and anti-gay signs.
State and local governments generally may enact and enforce reasonable time, place and manner restrictions on the exercise of free speech in public places. SB 888 attempts to meet constitutional requirements by creating a spatial and temporal zone of privacy around mourners while declaring that it leaves “full opportunity” for speakers to convey their message at other times and in other locations.
As currently drafted, however, SB 888 may fail the basic constitutional requirement of content-neutrality because it exempts speech involving labor disputes. SB 888 also arguably makes a problematic viewpoint-based distinction by prohibiting “picketing.” And most laws of other states restricting speech activities at funerals set physical limits significantly less restrictive than the 1,000-foot limit in SB 888.
The Court in Snyder acknowledged that there are “a few limited situations” where regulation of the location of targeted picketing is permissible, but unfortunately, the case provides little guidance regarding the constitutionality of any particular local restriction.
You may follow the status of SB 888 here.
Friday, April 29, 2011, 11:05:19 AM
Court Recognizes Immunity of Fire Departments Operating Vehicles at the Scene of a Fire
In a decision published April 20, 2011, the California Court of Appeal, Fourth Appellate District, confirmed that fire departments are immune from liability where a firefighter causes death or injury through the negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons and to extinguish the fire. This decision, which arose from the massive wildfires that swept through San Diego County in October and November of 2007, is beneficial for public entities that have fire departments because it recognizes that imposing liability in such situations might deter firefighters from making necessary decisions quickly under extremely stressful and dangerous circumstances.
In this case, Plaintiffs brought suit against Cal-Fire when they were injured during an attempt by state firefighters to assist in preventing the spread of fire to their property, and subsequent attempt to rescue them from their property. Their allegations focused on California Vehicle Code Section 17001, which deems a public entity liable for injuries caused by its employee's negligent operation of a motor vehicle. In response, Cal-Fire asserted that it was immune from liability under California Government Code Section 850.4, which provides immunity for any injury caused in fighting fires. Although the Court of Appeal recognized that the immunity applied under the facts presented in the case, it also recognized that liability could result from a firefighter's tortious act or omission in the operation of a motor vehicle while proceeding from another location to a fire in response to an emergency call.
You can read the Court's entire opinion in this case, Varshock v. Cal-Fire (D57709), here.
