CITY OF TRACY - League of California Cities · CITY OF TRACY Office of the City ... Ebbert v. Superior Court, 7 ... Constitution and argued that the counter and cross claims should

CITY OF TRACYOffice of the City Attorney

325 East Tenth StreetTracy, CA 95376

209-831-4050209-831-4153 fax

[email protected]

City Attorney's Department Spring ConferenceLeague of California Cities

May 5-7, 2004Debra E. Corbett, City AttorneyBill Sartor, Deputy City Attorney

GENERAL MUNICIPAL

LITIGATION

UPDATE

For Cases ReportedSeptember 1, 2003 through March 31, 2004

League of California Cities General Municipal Law Litigation UpdatePage i

League of California Cities General Municipal Law Litigation Update(excluding land use, eminent domain, personnel, civil rights, and tort cases)

List of Cases:

I. Legal Foundations of Municipal Government

Redevelopment Agency of the City of San Bernardino v. Alvarez, 1(District Court, C.D. Cal., October 21, 2003)

288 F.Supp.2d 1112

Levy v. City of Santa Monica, 1(Cal.App. 2 Dist. January 20, 2004)

114 Cal.App.4th 1252

Vo v. City of Garden Grove, 2(Cal.App. 4 Dist. January 29, 2004)115 Cal.App.4th 425

Telemundo of Los Angeles v. City of Los Angeles, 3(F. Supp. (C.D. Cal.)September 10, 2003)283 F.Supp.2d 1095

San Diego County Veterinary Medical Association v. County of San Diego, 3(Cal.App. 4 Dist. March 15, 2004)

____Cal.App.4th____

II. Open Government and Ethics

Chaffee v. San Francisco Commission, 4(Cal.App. 1 Dist. January 29, 2004)

115 Cal.App.4th 461

Los Angeles Times Communications, LLC v. Los Angeles 4County Board of Supervisors,

(Cal.App. 2 Dist. October 29, 2003)112 Cal.App.4th 1313

Karam v. City of Burbank, 5(9th Cir., Cal. December 8, 2003)

352 F.3d 1188, 1191

Ebbert v. Superior Court, 7(Cal.App. 4 Dist. February 18, 2004)


Gilbert v. City of San Jose, 7(Cal.App. 6 Dist. December 18, 2003)

114 Cal.App.4th 606

League of California Cities General Municipal Law Litigation UpdatePage ii

Teamsters Local 856 v. Priceless, LLC, 8(Cal.App. 1 Dist. October 31, 2003)


III. Elections

Moraga-Orinda Fire Protection District v. Weir, 9(Cal.App. 1 Dist. January 29, 2004)

115 Cal.App.4th 477

Lindelli v. Town of San Anselmo, 9(Cal.App. 1 Dist. September 3, 2003)


IV. Personnel

Cases related to personnel and employment are covered in a separate session.

V. Finance and Economic Development

Law Offices of Cary S. Lapidus v. City of Wasco, 10(Cal.App. 1 January 21, 2004)114 Cal.App.4th 1361

Barratt American Inc. v. City of Encinitas, 11(Cal.App. 4 Dist. February 10, 2004)

115 Cal.App.4th 837

Regents of University of California v. City and County of San Francisco, 12(Cal.App. 1 Dist. February 19, 2004)


Bighorn-Desert View Water Agency v. Beringson, 12(Cal.App. 4 Dist. January 13, 2004)


Pacific Gas & Electric Company v. State Department of Water Resources, 13(Cal.App. 3 Dist. October 2, 2003)

112 Cal.App.4th 477

Richmond v. Shasta Community Services Dist., 13(Cal. February 9, 2004)32 Cal.4

th 409

Utility Audit Company, Inc. v. City of Los Angeles, 14(Cal.App. 2 Dist. October 22, 2003)

112 Cal.App.4th 950

League of California Cities General Municipal Law Litigation UpdatePage iii

VI. Municipal Services and Utilities

Brand X Internet v. Federal Communications Commission, 15(9th Cir. October 6, 2003)

345 F.3d 1120

Williams Communications v. City of Riverside, 16(Cal.App. 4 Dist. December 18, 2003)

114 Cal.App.4th 642

VII. Public Contracting

Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corporation, 17(Cal.App. 4 Dist. September 12, 2003)


Coral Const., Inc. v. City and County of San Francisco, 17(Cal.App. 1 Dist. February 24, 2004)116 Cal.App.4th 6

Emma Corp. v. Inglewood Unified School Dist., 18(Cal.App. 2 Dist. January 6, 2004)114 Cal.App.4th 1018

Pasadena Live, LLC v. City of Pasadena, 19(Cal.App. 2 Dist. January 7, 2004)


VIII. Public Property

Cases related to eminent domain matters are covered in a separate session.

Citizens for Better Streets v. Board of Supervisors, 20(Cal.App. 1 Dist. February 26, 2004)

____Cal.App.4th____

Mt. San Jacinto Community College District v. Superior Court, 20(Cal.App. 4 Dist. March 26, 2004)

____Cal.App.4th____

IX. Regulating Businesses and Personal Conduct

Hotel & Motel Association of Oakland v. City of Oakland, 21(9th Cir., Cal. September 17, 2003)344 F.3d 959

Lombardo v. Warner, 22(9th Cir., Oregon December 29, 2003)353 F.3d 774

League of California Cities General Municipal Law Litigation UpdatePage iv

Slauson Partnership v. Ochoa, 22(Cal.App. 2 Dist. October 23, 2003)112 Cal.App.4th 1005

Talk of the Town v. Department of Business and Finance

Services (City of Las Vegas), 23(9th Cir., Nev. September 10, 2003)

343 F.3d 1063

Carson Harbor Village, Ltd. v. City of Carson, 24(9th Cir., Cal. January 2, 2004)

353 F.3d 824

Hacienda Valley Mobile Estates v. City of Morgan Hill, 24(9th Cir. December 17, 2003)

353 F.3d 651

Morgan v. City of Chino, 25(Cal.App. 4 Dist. February 20, 2004)115 Cal.App.4th 1192

Ocean Park Associates v. Santa Monica Rent Control Bd., 26(Cal.App. 2 Dist. January 7, 2004)


Topa Equities, Ltd. v. City of Los Angeles, 26(9th Cir., Cal. September 8, 2003)

342 F.3d 1065

Independent Towers of Washington v. Washington, 27(9th Cir., Wash. November 18, 2003)

350 F.3d 925

Abrams v. City of Ranch Palos Verdes, 27(9th Cir., Cal. January 15, 2004)

354 F.3d 1094

Foley v. Superior Court, 28(Cal.App. 4 Dist. March 30, 2004)___Cal.App.4th___

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.

League of California Cities General Municipal Law Litigation UpdatePage v

XII. Code Enforcement

Rahimi v. City of Pittsburg, 29(District Court, N.D. Cal. September 22, 2003, Slip copy)

2003 WL 22213522 [Case not reported in F.Supp.2d]

City of Santa Paula v. Narula, 29(Cal.App. 2 Dist. December 17, 2003)

114 Cal.App.4th 485

San Joaquin Motel and Hotel Property Owners Association

v. City of Stockton, Unpublished decision 30(2003 WL 22255839, Cal.App. 3 Dist. October 2, 2003)

Attorney General’s Opinions:

Opinion of Bill Lockyer, Attorney General 6No. 03-408 (September 3, 2003)86 Ops.Cal.Atty.Gen. 142

Opinion of Bill Lockyer, Attorney General 15No. 03-412 (September 25, 2003)86 Ops.Cal.Atty.Gen. 176

Opinion of Bill Lockyer, Attorney General 6No. 03-402 (October 22, 2003)

86 Ops.Cal.Atty.Gen. 187

Opinion of Bill Lockyer, Attorney General 6No. 03-901 (December 19, 2003)


Opinion of Bill Lockyer, Attorney General 15No. 03-804 (January 30, 2004)


Opinion of Bill Lockyer, Attorney General 7No. 03-1107 (February 24, 2004)

___Ops.Cal.Atty.Gen.___

League of California Cities General Municipal Law Litigation UpdatePage 1

League of California Cities General Municipal Law Litigation Update(excluding land use, eminent domain, personnel, civil rights, and tort cases)

I. Legal Foundations of Municipal Government

Redevelopment Agency of the City of San Bernardino v. Alvarez,(District Court, C.D. Cal., October 21, 2003)

288 F.Supp.2d 1112

Federal court retains removal jurisdiction over federal counter- and cross-claims aftersupplemental state claims are remanded to state court.

HUD sold homes to public entities at reduced prices on the condition that the public entitiesrehabilitate and then sell the homes to low or moderate-income first time buyers. HUD requiredsuch buyers to make minimum down payments and to reside in the homes. Defendant enteredinto agreements with the Redevelopment Agency to rehabilitate the homes and then sell thempursuant to the HUD criteria. The agreements specified that defendant was to adequatelyscreen prospective purchasers to ensure that they met the HUD and Redevelopment Agencycriteria. The Redevelopment Agency brought a state court action alleging both state law causesof action and violations of the federal RICO statute. Defendants removed to federal court basedon federal question jurisdiction. The federal court found that state law issues predominated andordered the claims remanded back to state court. Defendants brought counter and cross claimsagainst the Redevelopment Agency alleging deprivation of their rights under the United StatesConstitution and argued that the counter and cross claims should be heard in federal court. Thefederal court ordered all related counter and cross claims removed to the state court.

Held:

When federal court finds that state law issues predominate such that supplemental state claimsare remanded to state court, the federal court retains removal jurisdiction over counter claimsand cross claims even if such allege only federal claims.

Levy v. City of Santa Monica,(Cal.App. 2 Dist. January 20, 2004)


Council member’s actions in forwarding citizen complaint to staff member falls under the FirstAmendment protections for petitions for grievances.

City Council member forwarded to staff a citizen complaint regarding a playhouse that was builtin violation of city code. The property owner received a notice of violation and sued the City andthe Council member seeking a permanent injunction and declaratory judgment that the Citycharter prohibited the council member from trying to influence City employees. The City broughtan anti-SLAPP motion and trial court denied the motion. The appellate court reversed.

Held:

A Council member’s speech, in forwarding citizen complaints to relevant City staff members,enjoys the same First Amendment protections as petitions for grievances. The SLAPP statute


allows for the striking of a cause of action that interferes with such petitioning activities, or otherprotected speech, and thus the trial court should have granted the motion.

Vo v. City of Garden Grove,

(Cal.App. 4 Dist. January 29, 2004)

115 Cal.App.4th 425

Ordinance requiring CyberCafes to have CUP to continue operating unconstitutional due toexcessive amount of discretion vested in zoning administrator but ordinance provisionsprohibiting serving minors during school hours, requiring minimum number of adult employees,requiring video cameras, and requiring security during certain hours are content neutral,narrowly tailored to serve a significant governmental interest, and leave alternate channelsavailable for accessing Internet.

City enacted an ordinance requiring "CyberCafes" to have a conditional use permit (CUP) andregulating the operation of CyberCafes. The ordinance allowed the City zoning administratorbroad discretion to determine which conditions were appropriate to attach to the CUP.CyberCafe owners sought a preliminary injunction against enforcement of the ordinance basedon First Amendment and California Constitutional free speech and privacy rights. The trial courtpreliminarily enjoined the city from enforcing portions of the ordinance and the City appealed.The appellate court reversed the trial court ruling preliminarily enjoining enforcement of theregulations on CyberCafe operations and affirmed the injunction on enforcement of the CUPrequirement.

Held:

1. “Expression, whether oral or written or symbolized by conduct, is subject to reasonable time,place, or manner restrictions.... [R]estrictions of this kind are valid provided that they arejustified without reference to the content of the regulated speech, that they are narrowly tailoredto serve a significant governmental interest, and that they leave open ample alternativechannels for communication of the information."

2. Portions of ordinance requiring CyberCafes to have no minors without adult supervisionduring school hours, video cameras that do not focus on computer screens, a minimum numberof adult employees, and security guards during certain hours are content neutral and narrowlytailored to serve the significant governmental interest of protecting minors from gang influenceand violence. Internet access is readily available from alternative sources.

3. “When… an ordinance or regulation requires [a] government… permit before engaging inprotected First Amendment activity, precision of regulation must be the touchstone" and thestandards set forth therein must be susceptible of objective measurement. Ordinancesgoverning the issuance of [permits] fail to survive constitutional scrutiny where administrativeofficials are granted excessive discretion in determining whether to grant or deny the [permits]."[internal quotes, citations and brackets omitted].

4. Portions of ordinance requiring CyberCafes to obtain a CUP fails to survive constitutionalscrutiny because zoning administrator is granted excessive discretion in determining whether togrant or deny the permits.


Telemundo of Los Angeles v. City of Los Angeles,

(F. Supp. (C.D. Cal.)September 10, 2003)283 F.Supp.2d 1095

Blocking television station’s competitors access to a public forum or information violates theFirst Amendment.

City annually conducts an official ceremony to commemorate the anniversary of the beginningof the Mexican War of Independence, known as the tradition of "El Grito" (The Cry). The Mayor,Council President, and other City officials participate in the ceremony. KMEX-TV hadexclusively produced and broadcast the ceremony for 22 years. For four months prior to theceremony, plaintiffs, who were competing television stations, requested that the City allow themto participate equally with KMEX-TV in the production and broadcast of the ceremony. Cityrepeatedly denied plaintiffs’ request and barred plaintiffs’ camera crews from the ceremonyarguing that Plaintiffs had access to the KMEX-TV one-hour tape delayed feed of the event.Plaintiffs filed a complaint and an ex parte application for a temporary restraining order and anorder to show cause why a preliminary injunction should not issue to force the City to allowPlaintiffs to use their own cameras to broadcast the ceremony. The Federal District Court foundthat Plaintiffs showed a likelihood of success on the merits and would also suffer irreparableharm in the form of a temporary infringement on their First Amendment freedoms caused by theproposed one-hour tape delay in the feed.

Held:

1. Where entertainment and official ceremony have taken place on government property, suchpublicly owned property is transformed into a public forum for expressive activity, even thoughthe expressive activity was promoted solely by KMEX-TV.

2. City may not discriminate against KMEX-TV’s competitors by denying their cameras accessto the officially held ceremony even if City and KMEX-TV allow plaintiffs to use one-hourdelayed pool feed of event.

San Diego County Veterinary Medical Association v. County of San Diego,(Cal.App. 4 Dist. March 15, 2004)

____Cal.App.4th____

Bundling inexpensive dog vaccination services for sale to the public for purposes of havingmore people license their dogs within County’s power.

County scheduled three dog vaccination clinics which included an offer to sell a singlevaccination that protects against four canine diseases for $15.00 (the “wellness vaccinations”)and to administer a free rabies vaccination with the purchase of a three-year dog license.Association of private veterinarians brought an action against County alleging, inter alia, thatCounty lacked the constitutional authority to administer the wellness vaccinations and the freerabies vaccinations. The trial court ruled in favor of the County, the Association appealed, andthe appellate court affirmed the trial court decision.

Held:

“Ensuring that the greatest number of dogs will be … licensed and vaccinated for rabies is alegitimate governmental activity [and] County had a reasonable basis to conclude that the


bundling of services … would assist in promoting this goal [and the] goal of obtaining additionalrevenues by increasing number of licenses purchased was a legitimate exercise of its policepowers.”

II. Open Government and Ethics

Chaffee v. San Francisco Commission,(Cal.App. 1 Dist. January 29, 2004)

115 Cal.App.4th 461

Brown Act only requires one general public comment period per agenda even if agendizedmeeting will take place over more than one day.

The San Francisco Library Commission held a regularly scheduled meeting that was continuedto another day. Public comment was allowed before or during each agenda item. Generalpublic comment was only allowed on the second day of the meeting. Plaintiff filed a complaintfor injunctive and declaratory relief under the Brown Act and San Francisco’s SunshineOrdinance for not being provided with an opportunity to make general comments during the firstday of the meeting.

Held:

Brown Act (and Sunshine Ordinance) only requires one general comment period to be providedper agenda. The second day of a continued meeting is considered to be a single agenda.Allowing general public comment on only the second day of an agendized meeting complieswith the Brown Act.

Los Angeles Times Communications, LLC v. Los Angeles County Board of

Supervisors,


Attorneys fees must be awarded to plaintiffs for successful Brown Act suit unless defendantshows special circumstances that would make a fee award unjust.

Trial court denied post-trial motion for attorney fees after conclusion of plaintiffs’ successfulBrown Act suit against County Board of Supervisors (Board). Appellate Court reversed andremanded for a determination of the amount, and award, of attorney fees.

The trial court granted declaratory relief in holding that the Board violated the Brown Act onthree occasions. The first occasion was when the Board discussed and acted on CountyCounsel’s recommendation to not place a measure on the ballot so as to provoke a lawsuit bythe measure’s proponents while in a closed session described on the agenda as initiation oflitigation. The second and third occasions were when the Board directed its administrativeofficer to develop new Brown Act protocols while in closed sessions described on the agendasas employee evaluation and pending litigation.


Held:

1. The purpose of the attorney fee provision of Brown Act is to spur private enforcement of theAct; therefore, plaintiffs need not show public benefit when violations of the Act are shown.Rather, burden is on the defendant public agency to show that special circumstances exist,which makes a fee award unjust.

2. Respective wealth of plaintiff obtaining judicial determination of Brown Act violation isirrelevant in determination of whether special circumstances exist as to attorney fee awardbeing unjust.

Karam v. City of Burbank,(9th Cir., Cal. December 8, 2003)

352 F.3d 1188, 1191

City did not violate citizen’s First or Fourth Amendment rights when it filed misdemeanorcomplaint for trespass and obstructing a police officer against citizen for failing to leave Councilchambers after police officer ordered her to leave because the chambers were full.

After the citizen addressed the City Council, a City police officer ordered her to leave becausethe council chambers were full. The City filed a misdemeanor complaint against the citizen fordelaying or obstructing a peace officer in the performance of his duties and trespassing. A Citypolice officer then telephoned the citizen and told her she had to turn herself in or be arrested.The citizen appeared at court and signed an Own-Recognizance Release Agreement ("ORrelease"). The OR release required the citizen to obtain court permission to leave the state andto appear in court in three weeks. The court dismissed the trespassing charge before trial and,after determining that part of the police report was incorrect, dismissed the obstruction chargeas well.

The citizen then sued the City, alleging it violated her Fourth and First Amendment constitutionalrights. The district court dismissed the Fourth Amendment seizure claim, entered summaryjudgment for the defendants on the First Amendment infringement claim, found the citizen’saction to be frivolous, and awarded attorneys’ fees to the City. The Ninth Circuit affirmed thedistrict court’s ruling on the substantive claims but reversed as to the attorney fee award, findingthat the district court erred in classifying the action as frivolous.

Held:

1. The OR release restrictions were de minimus so no Fourth Amendment seizure occurred.

2. Citizen failed to establish nexus between the government action and her exercise of freespeech as no evidence showed that the “prosecution was due to any city policy, practice orcustom or was instigated at the behest of any official policymaker” and the evidence indicatedthat the prosecutors exercised their independent judgment in deciding to file the criminalcomplaint against the citizen.


Opinion of Bill Lockyer, Attorney General

No. 03-408 (September 3, 2003)86 Ops.Cal.Atty.Gen. 142

A member of the board of directors of a community services district can remain on the boardeven though that member files an action against the district challenging a development permitthe board issued to an owner of property located next to property that the member owns.However, as long as the member remains on the board, the board and the member cannotenter into a settlement agreement with respect to the lawsuit. Also, the member cannot“participate in any board discussions about the lawsuit, nor may he attempt to use his officialstatus to influence the manner in which the board conducts the lawsuit.”


No. 03-402 (October 22, 2003)


Government Code section 1091 provides for a five-year period remote interest exception, whichallows a legislative body to enter into a contract for goods or services with an entity in which amember of the legislative body (who does not participate or influence the making of thecontract) has an interest. That five-year period commences at the beginning of the legislativebody member’s current term of office rather than from the initial term of the member. Theformerly interested member may participate in the making of the contract if that member firstterminates the business interest in a manner that ensures no possibility of that member beingable to exercise any direct or indirect influence.

Opinion of Bill Lockyer, Attorney GeneralNo. 03-901 (December 19, 2003)


Irrigation District director took oath of office as a County supervisor approximately one monthafter the oath of office as a Irrigation District director. The irrigation district is wholly containedwithin the boundaries of the County for which he is a supervisor. “The common law doctrine ofincompatible public offices prohibits a person from holding two public offices at the same time ifthe performance of the duties of either office could have a significant adverse effect on theother.” “Offices are incompatible if one of the offices has supervisory, auditory, or removalpower over the other or if there would be any significant clash of duties or loyalties in theexercise of official duties. Only one potential significant clash of duties or loyalties is necessaryto make offices incompatible. If the performance of the duties of either office could have anadverse effect on the other, the doctrine precludes acceptance of the second office. If thesecond office is accepted, such acceptance constitutes an automatic resignation from the firstoffice."

Because the “county may wish to contract with an irrigation district to obtain water, electricalpower, or flood control services [and because] the irrigation district may be subject to countyapproval before constructing a building project, and the county may need an irrigation district'sagreement before putting its development plans into effect”, …[the attorney general opined] thatthe question whether Defendant is unlawfully holding the office of director of the Districtpresents substantial issues of fact and law requiring judicial resolution.



No. 03-1107 (February 24, 2004)___Ops.Cal.Atty.Gen.___

A trust fund is administered by a board whose members are appointed equally by the City andone of its labor unions. The trust fund is to be used for the purposes of a joint safety instituteformed by the City’s public works department and the labor union. The meetings of the boardneed not be open to the public under the Brown Act because the board is not a legislative body.The board is not a legislative body because (1) all of its members are not appointed by the localagency (half are appointed by the union); (2) no member of the legislative body sits on theboard; and (3) the board does not exercise any "authority that may lawfully be delegated to it bythe elected governing body” [internal brackets omitted] because the board may only perform“limited collaborative functions as part of the collective bargaining process between the [publicworks department] and the Union.”

Ebbert v. Superior Court,(Cal.App. 4 Dist. February 18, 2004)


Information developed from information disclosed under Pitchess motion procedure in unrelatedmatter does not fall within scope of statutory protective order.

Criminal defendant (Ebbert) brought successful Pitchess motion and obtained information aboutthree police officers. Ebbert’s attorney found out that one of the three officers had been thesubject of a successful Pitchess motion in an unrelated criminal case and that the defendant inthat case had hired an investigator who interviewed witnesses and wrote reports regardingthose interviews. Ebbert moved the trial court for an order clarifying the scope of the statutoryprotective order issued in the other case as he wanted to inspect and use the investigator’sreports. The trial court ruled that inspecting or using the reports would violate the protectiveorder. Ebbert then petitioned the appellate court for a writ of mandate and the appellate courtgranted the writ.

Held:

1. Statutory protective order provided under Pitchess statutes does not apply to use ofinformation developed from material disclosed pursuant to a successful Pitchess motion even ifsuch information is derivative of the disclosed material.

2. Pitchess material that is protected under statutory protective order must be redacted fromany information developed from such material that is to be provided to a third party unless suchthird party has obtained identical material through his or her own Pitchess motion.

Gilbert v. City of San Jose,(Cal.App. 6 Dist. December 18, 2003)

114 Cal.App.4th 606

City must take reasonable steps to notify gambling licensee, permittee, or applicant when amember of the public requests personal information contained in gambling application so as toprovide the applicant or person a fair opportunity to prevent disclosure of the information.


City enacted ordinance requiring key employees of gambling establishments located within theCity to obtain a license. The license application requires certain personal information from theapplicants. Employees of a 40 table gambling establishment located in the City brought anaction for declaratory relief that the ordinance was unenforceable because it did not adequatelyprotect their privacy rights under the state constitution. Alternatively, the employees soughtdeclaratory relief that the ordinance was unenforceable because it was preempted by state law.The trial court ruled in favor of the City and the employees appealed. The appellate courtaffirmed but modified the judgment to require City to provide applicants and licensees noticeprior to releasing personal information contained in their applications.

Held:

1. State Gambling Control Act provides only "minimum standards" and permits "more stringentlocal controls” (Business and Professions Code section 19803) such that it does not preemptthe ordinance at issue here.

2. Prior to disclosing personal information contained in the gambling license application, Citymust take reasonable steps to provide licensee/applicant “to whom the information pertains ofthe pendency and nature of the request for the information and to afford the [licensee/applicant]a fair opportunity to object to disclosure, to join in resisting disclosure, or to institute appropriatelegal proceedings to resist disclosure or limit the scope or nature of the matters sought to bediscovered.”

Teamsters Local 856 v. Priceless, LLC,

(Cal.App. 1 Dist. October 31, 2003)


The public interest in disclosure of specific and individual non-contract public employees’ salaryinformation is outweighed by the public interest in non-disclosure of that information.

A reporter made a California Public Records Act (CPRA) request for the “names, titles and W2wages of all [city] employees for the 12 months ending Dec. 31, 2002” to numerous SanFrancisco Bay Area cities. Some of the affected employees’ unions sought injunctive reliefalleging “that release of the employees' names would be an invasion of privacy and wouldcause irreparable harm [and] ... that release of the information regarding peace officeremployees would violate Penal Code section 832.7.”

The unions’ complaint sought preliminary and permanent injunctions. The parties stipulated thatsalary information of individual employees is “kept confidential as a part of the personnel file.”The appellate court affirmed the trial court’s granting of a preliminary injunction withholding thenames of individual public employees pending resolution of the newspaper's request for detailedemployee salary information from local governmental entities.

Held:

1. Three factor Hill test was satisfied because (1) financial privacy is a legally protected privacyinterest; (2) non-contract public employees have a reasonable expectation of privacy inindividually identifiable salary information; and (3) the public interest in the city’s performance ofits duties is satisfied by the release of salaries, broken down by position, title, base salary,overtime and bonus compensation and the public interest in disclosure of the names ofparticular city employees is outweighed by the public interest in non-disclosure of the


individuals’ names in this case because the disclosure of payroll records would constitute one ofthe greatest unwarranted invasions of personal privacy.

2. The legislative history, when viewed with common sense and in light of the law of publicemployment, supports the conclusion that employees who are not parties to employmentcontracts have no contracts to disclose.

3. Government Code section 6254.8 does not mandate that an individual's name must belinked to salary information.

4. Compliance with Penal Code section 832.7 is required when seeking payroll records ofpeace officers prior to disclosure, including notice to the officers and a hearing under sections1043 and 1046 of the Evidence Code.

III. Elections

Moraga-Orinda Fire Protection District v. Weir,(Cal.App. 1 Dist. January 29, 2004)

115 Cal.App.4th 477

Anti-SLAPP motion available against election officials who challenge voter pamphlet languageand to attorney fee award provision still applicable after underlying motion is moot.

Fire district filed a mandamus petition to challenge the accuracy of a Home Owner’sAssociation’s (HOA) rebuttal argument in a voter information pamphlet. The fire districtattempted to amend its petition three days after it was filed. The HOA filed an anti-SLAPPmotion and prevailed on its arguments that the fire district lacked standing and that theattempted amendment to the petition was untimely. An award of attorneys fees, authorizedunder anti-SLAPP statute, was denied by the trial court. The appellate court found the SLAPPissues to be moot because the mandamus proceeding was resolved on its merits but awardedattorneys fees under the SLAPP statute.

Held:

1. Even if SLAPP motion was moot when underlying action was resolved on its merits, theattorney fee request was not moot.

2. No voter pamphlet exceptions are contained in the anti-SLAPP statute. A voter pamphlet isa public forum and an election official who challenges language contained in voter pamphletscan be required to show a probability of success on the merits of the underlying action as acondition of proceeding with that action.

Lindelli v. Town of San Anselmo,

(Cal.App. 1 Dist. September 3, 2003)111 Cal.App.4th 1099

Interim franchise agreement for a shorter duration, but otherwise containing identical terms asagreement contained in ordinance that petitioner qualified for a referendum, violates the stayprovisions of Elections Code section 9241.


Town awarded waste management franchise to new provider. Opponents of new providerqualified a referendum on the ordinance awarding the new franchise. Town then accepted bidsfor an interim contract, until the election on the referendum could be held, and awarded theinterim contract to the new provider. The interim contract was for a one-year term (instead ofthe five year term contemplated under the ordinance) but otherwise contained identical terms tothe agreement contemplated under the ordinance. The opponents and the old provider filed apetition for writ of mandate arguing that the interim contract violated the stay provisions ofElections Code section 9241. The trial court denied the petition and the opponent and oldprovider appealed. The opponent and the old provider dropped their request for removal of theinterim provider on appeal and instead requested a ruling from the appellate court that theinterim contract was unlawful. Town argued that the issue was now moot, that petitioners hadfailed to exhaust administrative remedies by failing to raise the issues related to Elections Codesection 9241 at the public hearings regarding the challenged ordinance, and that the interimcontract was lawful.

Held:

1. Election law issue presented here is one of broad importance, capable of recurring and likelyto otherwise escape review. Therefore, it falls within the exception to mootness for issues ofbroad public interest and the court has discretion to consider the merits of the appeal.

2. “The opportunity to participate in a public hearing prior to a legislative action does notconstitute an administrative remedy subject to exhaustion.”

3. New legislation that only changes, from five years to one year, the length of the franchiseterm is essentially the same as the challenged franchise ordinance and thus falls within the stayprovisions of Elections Code section 9241.

IV. Personnel

Cases related to personnel and employment are covered in a separate session.

V. Finance and Economic Development

Law Offices of Cary S. Lapidus v. City of Wasco,(Cal.App. 1 January 21, 2004)


California Constitution does not prevent City from paying judgment in favor of attorney undercontingency fee agreement even if amount exceeds one year’s future City revenues and doesnot first obtain voter approval.

City had claims against a bond underwriter and hired outside counsel (Lapidus) to pursue themunder a contingency fee arrangement. Lapidus negotiated one agreement with the underwriterbefore the City decided to use other outside counsel for the same purpose. The new outsidecounsel negotiated two additional agreements with the underwriter. Lapidus prevailed inarbitration proceedings, and the award was confirmed by the superior court, for one-third of thetotal amount recovered from the underwriter for all three agreements. After five years of theCity not paying Lapidus, he filed a petition for writ of mandate to compel the City to pay. TheCity argued that it lacked the power to pay Lapidus because Article XVI, section 18 of the


California Constitution prohibits a city from incurring debt that exceeds one year’s revenuewithout voter approval. The trial court granted the petition and the appellate court affirmed.

Held:

Debt limitation found in Article XVI, section 18 of the California Constitution inapplicable to fundsCity already received as a result of Lapidus’ effort because payment of same is not dependenton a future revenue source but rather is compensation for services already performed undercontract.

Barratt American Inc. v. City of Encinitas,

(Cal.App. 4 Dist. February 10, 2004)115 Cal.App.4th 837

120 day limitations period applies to challenge to building permit and inspection fee amountadopted by ordinance or resolution but, absent language in ordinance or resolution authorizingautomatic increases based on objective criteria, does not apply to subsequent modifications tosuch fees that are not adopted by ordinance or resolution.

In 1987, City adopted an ordinance requiring building permit fees to be set by resolution andgiving the building official complete discretion to set the "determination of value or valuation" ofparticular types of planned structures. In 1992, City approved a resolution that provided a feeschedule for items such as building permits and inspection fees. The 1992 fee scheduleauthorized a calculation method in which staff calculates fees based on the square footage ofthe proposed building and on a valuation multiplier which is in turn based on the type ofstructure and proposed occupancy of the building.

Barratt sued City for a refund of building permit fees it paid in connection with residentialdevelopments it built in the City. The City calculated the amount of Barratt’s fees usingvaluation multipliers developed in 1995 rather than the valuation multipliers that the 1992resolution approved. Barratt alleged that the use of the different multiplier resulted in increasedfees and also alleged that no schedule of valuation multipliers was included in the 1992resolution.

The trial court found Barratt’s claims were time-barred under Government Code section 66022and entered judgment for City. Barratt appealed and the appellate court affirmed as to thechallenge to the 1992 resolution, reversed as to the challenge to the use of the 1995 valuationmultipliers, and remanded to the trial court to determine if the 1995 multipliers resulted in a feeincrease as applied to Barratt.

Held:

1. The limitations period contained in section 66022, which applies to lawsuits challenging thedecision of a local agency to promulgate or change a fee and requires that such an action becommenced within 120 days of the effective date of the legislation or any automatic adjustmentincrease sets forth the applicable limitations period as to the 1992 Resolution.

2. The 120-day limitations period of section 66022 does not begin to run until a modified fee isadopted by resolution or ordinance.


3. Automatic fee increases must be provided in the ordinance or resolution enacting the fee,and be based on objective criteria, to start running of 120-day limitations period of section66022 from date of increase.

Regents of University of California v. City and County of San Francisco,


120-day statute of limitations provided under Government Code section 66022 runs from thedate the fee resolution is adopted and not from the date of any subsequent act which actuallyimposes the charge.

City increased water and sewer rates by resolutions in 1996 to recover operating and capitalcosts. City published notice of the public hearing at which it considered and adopted the 1996resolutions. At the hearing, City introduced evidence showing that a portion of the rates is usedto pay capital costs. After adopting the resolutions increasing rates, City informed all of itsratepayers in writing that a portion of the increased rates would be used for capital costs.Several years after the 1996 resolutions, the Regents of the University of California sued Cityfor a refund of allegedly excessive fees. The Regents argued that the 120-day limitations periodprovided under Government Code section 66022 ran from the City’s adoption of its annualbudget resolution for fiscal 1999-2000 even though the rates had not been increased since the1996 resolutions were adopted. The trial court concluded that the statute of limitations started torun upon adoption of the 1996 resolutions and, therefore, the Regents were barred frombringing the action. The Regents appealed and the appellate court affirmed.

Held:

1. For the purposes of the statute of limitations provided under Government Code section66022, annual budget ordinances do not set rates.

2. “[T]he enactment of a utility rate or rate increase, and not a subsequent act which actuallyimposes a utility charge, triggers the 120-day statute of limitations” under Government Codesection 66022.

Bighorn-Desert View Water Agency v. Beringson,

(Cal.App. 4 Dist. January 13, 2004)114 Cal.App.4th 1213

A voter initiative cannot control the amount of the water rate, fees, and charges fixed by a publicwater agency.

Citizen qualified an initiative petition for the ballot, which would have reduced Water Agency’swater rates and charges and placed a two-thirds voter requirement for any subsequentincreases. Agency brought a declaratory relief action for a judicial declaration that the initiativewas invalid on its face and trial court granted motion. Citizen appealed and appellate courtaffirmed.

Held:

1. Usage-based water rates and related charges are not incidents of property ownership or feesfor a property-related service and as such are excluded from Proposition 218.


2. Under legislative mandate, Water Agency is authorized to charge the amounts it determinesto be necessary to meet its costs and the initiative or referendum is not available because theeffect of same would be to greatly impair or wholly destroy the efficacy of Agency’s power to fixwater rates and charges at a sufficient amount.

Pacific Gas & Electric Company v. State Department of Water Resources,


112 Cal.App.4th 477

DWR must make a determination as to whether its revenue requirements are just andreasonable but does not need to conduct a public hearing as to its determination.

PG&E brought an action against the Department of Water Resources (DWR) after DWR made adetermination that its 2001-2002 revenue requirement was just and reasonable. PG&E soughta mandate requiring DWR to withdraw that determination and comply with the AdministrativeProcedures Act (APA) by holding a public hearing as to whether the proposed revenuerequirement was just and reasonable under Public Utilities Code section 80110. PG&E alsosought a judicial declaration to invalidate the determination that the November 2001 revenuerequirement was just and reasonable.

The trial court overruled DWR’s demurrer and DWR appealed that ruling. The trial court alsoissued a peremptory writ of mandate commanding DWR to follow the APA procedures inconnection with any just and reasonable determination of its 2001-2002 revenue requirement.DWR also appealed the judgment granting that writ of mandate. Affirmed as to the DWRdetermination as to just and reasonable; reversed as to APA requirement.

Held:

1. The determination of whether the revenue requirement is just and reasonable is to be madeby DWR, but DWR is not required to conduct a hearing regarding its determination.

2. Public Utilities Code section 80110 imposes the just-and-reasonable standard on DWR'srevenue requirement.

3. DWR's revenue requirement is not a "regulation" within the meaning of Government Codesection 11342.600, and is therefore not subject to APA procedures.

Richmond v. Shasta Community Services Dist.,(Cal. February 9, 2004)

32 Cal.4th 409

Capacity charge and fire suppression fee imposed for making a new connection to a watersystem is not a property-related fee or charge under Proposition 218 and community servicesdistrict ordinance imposing water connection fee may be amended by resolution.

Community Services District supplies water to residential and commercial water users plusprovides fire suppression and emergency medical services. The District adopted an ordinance,which established a "standard connection fee" of $2,000, plus the cost of a water meter, for newwater service connections. The fee included a capacity charge of $600 for future improvements


and a fire suppression charge of $400. The remaining $1,000 was to pay or be applied to thecosts of installation (depending on the property location).

Three-and-one-half years after adopting the ordinance, the District adopted a resolutionamending the ordinance to increase the standard connection fee to $3,176 and to place theentire cost of installation on the applicant. As such, the new "standard connection fee"consisted of a $3,176 capacity charge for capital improvements to the water system and a $400fire suppression charge. The resolution stated that the $3,176 capacity charge was "basedupon estimated project costs of $762,300 for future improvements assigned to the newdevelopment of 240 future connections which equals $3,176 per connection."

Property owners challenged the resolution and the superior court granted judgment for theDistrict holding that the connection fee was a development fee exempt from Proposition 218;that the fire suppression charge was a continuation of a fee imposed before voters enactedProposition 218; and an ordinance was not required to increase the connection fee. Onplaintiffs' appeal, the Court of Appeal affirmed the judgment, except as to the fire suppressioncharge. The California Supreme Court reversed the Court of Appeal as to the fire suppressioncharge.

Held:

1. “A connection fee is not imposed simply by virtue of property ownership, but instead it isimposed as an incident of the voluntary act of the property owner in applying for a serviceconnection” and is thus not subject to Proposition 218.

2. The connection fee is not a development fee because the water connection may notnecessarily result in development.

3. Because the connection fee and the fire suppression fee “is imposed only on the self-selected group of water service applicants, and not on real property that the District hasidentified or is able to identify, and because neither fee can ever become a charge on theproperty itself, we conclude that neither fee is subject to the restrictions that [Proposition 218]imposes on property assessments and property-related fees.”

Utility Audit Company, Inc. v. City of Los Angeles,


Waiver of limitations period for sewer service overcharge refunds does not necessarilyconstitute a waiver of the limitations period for interest on the amount overcharged.

Beginning in 1972, the City began to overcharge certain property owners assessed sewerservice charges. A large number of the overcharged property owners assigned their right to arefund to Plaintiff. In 1999, the City adopted a policy of providing the overcharged propertyowners with full refunds of the actual amount overcharged without regard to any limitationsperiod. The policy did not include the payment of interest and the City appeared to believe thatit was under no legal obligation to include interest in the refund amounts. Plaintiff filed an actionto recover interest on the full refunds without regard for claims filing or limitations periods andprevailed at the trial court level on a motion for summary judgment. The City appealed.Reversed and remanded due to triable issues of fact.


Held:

1. An award of interest is consistent with the intent of Government Code section 53082, torefund wrongfully assessed sewer service fees, and section 3287 of the Civil Code supports theaward of interest.

2. A triable issue of fact remains as to whether the City waived the statute of limitations onrecovery of interest because the City was aware of the limitations period when it waived as tothe fee overcharges but consistently asserted and believed that there was no right to recoverinterest at all.

Opinion of Bill Lockyer, Attorney GeneralNo. 03-412 (September 25, 2003)


A city may enact an ordinance shifting the burden of its annual business license regulatory feefrom individual swap meet vendors to swap meet operators without prior voter approval. Thelicense fee here is imposed in an amount sufficient to cover the city’s costs in processing thelicense applications and inspecting the vendors’ premises. As such, it is a “regulatory fee” andmay be imposed without prior voter approval because it is not imposed as an incident ofproperty ownership but rather is a fee “imposed only on those persons who choose to engage inthe business, and only while they are operating the business.” [internal quotations and ellipsisomitted]. The result would be different (i.e. prior voter approval required) if the business licensefee was for revenue raising purposes as opposed to being a “regulatory fee”.

Opinion of Bill Lockyer, Attorney GeneralNo. 03-804 (January 30, 2004)


Proposition 172 was enacted in 1993 and authorized a .05 percent sales tax for local publicsafety services (police and fire). Humboldt County Counsel asked the AG if Proposition 172funds can be used to pay for independent fire protection districts. The AG opined that nothing inthe language of Proposition 172 excludes local public agencies, such as independent firedistricts, from it’s funding.

VI. Municipal Services and Utilities

Brand X Internet v. Federal Communications Commission,

(9th Cir. October 6, 2003)

345 F.3d 1120

In the Ninth Circuit, cable modem Internet services are not cable services under theCommunications Act and remain, in part, telecommunication services.

On March 15, 2002, the FCC issued a Declaratory Ruling that "cable modem service, as it iscurrently offered, is properly classified as an interstate information service, not as a cableservice, and that there is no separate offering of telecommunications service”. Several Internetservice providers and governmental agencies filed petitions with the Ninth Circuit seekingreview of the FCC ruling. The Ninth Circuit had previously interpreted the provisions of theCommunications Act as applied to cable broadband service in AT & T v. City of Portland, 216


F.3d 871 (9th Cir.2000). The City of Portland court found that the transmission element of cablebroadband service constitutes telecommunications service under the terms of theCommunications Act. Petitioners Brand X, EarthLink, and the State of California argued that theNinth Circuit was bound by its earlier interpretation of the statute, while the FCC, joined by twoof the Petitioners, argued that it was not so bound. The appellate court affirmed in part, vacatedin part, and remanded.

Held:

1. Court’s interpretation of Communications Act statute controls over later FCC interpretation ofstatute when court’s earlier interpretation was not based on deference to FCC’s interpretation.

2. Cable broadband service is not “cable service” but is in part “telecommunications service” forpurposes of Communications Act.

3. Because the transmission element of cable broadband service constitutestelecommunications service under the terms of the Communications Act “a franchising authoritymay not impose any requirement … that has the purpose or effect of prohibiting, limiting,restricting, or conditioning the provision of a telecommunications service by a cable operator."47 U.S.C. § 541(b)(3)(B).

Williams Communications v. City of Riverside,(Cal.App. 4 Dist. December 18, 2003)

114 Cal.App.4th 642

City may not charge compensation for license agreement with telephone company even if otherdata is transmitted over the telephone lines and some of the lines will not soon be used.

City charged telephone company $750,103 (but later refunded $356,779) under a licenseagreement for fiber optic cable installation in City streets. Telephone company filed an action torecover the balance claiming it was entitled to such under the Mitigation Fee Act. The trialcourt ruled in favor of the City on the merits and later awarded attorneys fees to the City. Thetelephone company’s primary argument on appeal was that the section of the licenseagreement requiring it to pay $750,103 to the City is illegal under Public Utilities Code section7901 (telephone companies have the right to use the public highways to install their facilities)and Government Code section 50030 (fee charged for installation of telecommunicationsfacilities cannot exceed reasonable cost of providing the service for which fee is charged).Appellate court reversed trial court decision in its entirety.

Held:

1. City did not show that it imposed the license fee to mitigate the cost of impacts on publicimprovements or facilities.

2. City can negotiate and enter into license agreement for placing telecommunications facilitiesin City streets, but the fact that other data is transmitted over the telephone lines, or that someof the lines will not immediately be put in use, does not allow City to receive compensation fromthe telephone company for the license agreement.


3. Mitigation Fee Act is applicable to amount charged as compensation for entering into licenseagreement because such was an “other exaction” on a development project as defined inGovernment Code sections 66000, 66020 and 66021.

VII. Public Contracting

Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corporation,(Cal.App. 4 Dist. September 12, 2003)


When City is not in breach of prime contract, City is not liable to general contractor underequitable theory of implied contractual indemnity for damages general contractor’ssubcontractor sustained due to design changes.

City contracted with a general contractor to build a 3.5 mile tunnel under the Pacific Ocean todischarge treated sewage at sea. A subcontractor supplied the general contractor with certainmaterials. The tunnel is complete and it works. However, the subcontractor sued the generalcontractor for cost overruns the subcontractor incurred as a result of design changes. Thegeneral contractor cross-complained against the City for indemnity. The jury awarded thesubcontractor $2.8 million in damages against the general contractor and determined that thegeneral contractor was entitled to 30 percent indemnity from City.

The general contractor and City appealed. The general contractor argued, inter alia, that thesubcontractor’s claims were barred because the subcontractor did not follow the disputeresolution process contained in the contract between the City and the general contractor beforepursuing litigation. The City argued, inter alia, that as a matter of law the general contractor hadno cause of action for equitable or implied contractual indemnity and the judgment against Citymust be reversed because it cannot be held liable for cost overruns on a public works projectunder an abandonment, quantum meruit or other equitable theory, including implied contractualindemnity. The appellate court affirmed in part and reversed in part.

Held:

1. The interests of the general contractor and the City are adverse to those of the subcontractorso the contractually mandated dispute resolution process contained in the contract between Cityand the general contractor is presumptively biased and unenforceable as a condition precedentto the subcontractor pursuing litigation.

2. Because City did not breach its contract with the general contractor, “as a matter of law, Citycannot be held liable to the general contractor under the equitable theory of implied contractualindemnity on a public works contract for cost overruns incurred by a subcontractor under apurchase order agreement with the general contractor. “

Coral Const., Inc. v. City and County of San Francisco,(Cal.App. 1 Dist. February 24, 2004)

116 Cal.App.4th 6

Contractor has standing to challenge City ordinance requiring contractors to make good faithefforts to use disadvantaged businesses as subcontractors when Contractor has bid in the pastand stands ready, willing and able to bid in the future on contracts governed by such ordinance.


A City ordinance enacted in 1998 requires that “[B]idders for certain types of prime Citycontracts must demonstrate their good faith efforts to provide certified [minority businessenterprises] and [woman business enterprises] an equal opportunity to compete forsubcontracts. … Any prime contract bid that fails to comply with the subcontracting program isdeclared nonresponsive.”

Specialty highway contractor with ability to do airport construction work was the low bidder on acontract to install additional signage at City’s airport. Contractor’s bid did not includesubcontractors because contractor did not intend to sub-contract for any of the work. Citydeemed Contractor non-responsive because Contractor did not “list its MBE/WBEsubcontractors in its bid....[ and Contractor] also failed to demonstrate that it made sufficientgood faith efforts to utilize MBE/WBE subcontractors by its failure to submit adequate GoodFaith Efforts documentation."

City awarded the contract to a bidder whose bid exceeded Contractor’s by 22 percent.Contractor sued City for declaratory and injunctive relief and “filed motions for summaryjudgment, summary adjudication, judgment on the pleadings, peremptory writ of mandate andpreliminary injunction” on a theory that the ordinance was invalid under the state constitution(Proposition 209). City filed a cross-motion for summary judgment, primarily arguing thatContractor lacked standing to challenge future enforcement of the ordinance. City also arguedthat the complaint was not ripe and was barred by a statute of limitations. The trial court ruledthat Contractor “did not face an 'invasion of a legally protected interest' from the Ordinance thatis both (a) 'concrete and particularized[,'] and (b) 'actual or imminent.'” Contractor appealed andthe appellate court reversed.

Held:

1. Person or entity challenging legislative act must have “some special interest to be served orsome particular right to be preserved or protected over and above the interest held in commonwith the public at large.” This standard “requires a party to prove by a preponderance of theevidence that it has suffered 'an invasion of a legally protected interest that is (a) concrete andparticularized, and (b) actual or imminent, not conjectural or hypothetical.” [internal quotationsomitted]. To meet the imminent injury part of this test, all Contractor need show is that it “hasbid in the past and stands ready, willing and able to bid in the future on contracts governed bythe Ordinance.” Contractor need not identify a specific contract that it will bid on in the nearfuture to show that its alleged injury is not conjectural or hypothetical.

2. Issue is ripe because Contractor alleged harm as a result of the ordinance being applied toits actual bid.

3. Contractor’s challenge is not time barred due to the ordinance being enacted more than oneyear prior to the complaint because Contractor is also mounting an “as applied” and an ongoingchallenge to the ordinance.

Emma Corp. v. Inglewood Unified School Dist.,(Cal.App. 2 Dist. January 6, 2004)


No bar to equitable estoppel existed against school district that was aware, and tried to takeadvantage, of contractor’s bid mistake.


Contractor was low bidder on school construction project and furnished an $815,000 bid bond.Contractor made a clerical error amounting to almost $800,000 because it did not include thecosts to provide plumbing in the bid and promptly provided the School District with noticewithdrawing the bid. The letter did not provide all the information required under PublicContracts Code sections 5101 through 5103. The District decided to take advantage ofContractor’s mistake and force either performance at the reduced price or recover against thebid bond. As part of that strategy, the District informed Contractor that, if more informationregarding the bid withdrawal was needed, the District would contact Contractor. The Districtnever contacted Contractor to obtain the additional information required under the bidwithdrawal provisions of the Public Contract Code. The bid withdrawal period lapsed, theDistrict awarded Contractor the contract at the mistaken price, and Contractor refused toperform. Contractor brought an action against the District for rescission and exoneration of thebid bond. The District cross-complained for breach of contract and payment of the bid bond.

The trial court found that, although Contractor did not substantially comply with the bidwithdrawal procedures under the Public Contract Code, District was estopped from enforcingthe contract because of its behavior in trying to take advantage of Contractor’s mistake anddismissed the District’s cross-complaint as moot. The appellate court affirmed.

Held:

Equitable estoppel is applicable against a public entity when the public entity deliberatelymisleads a mistaken bidder from complying with the bid withdrawal procedures under the PublicContract Code where the public entity “deliberately engineer[s] an attempt to enforce a contractit [knows] was [bid] mistakenly low.”

Pasadena Live, LLC v. City of Pasadena,

(Cal.App. 2 Dist. January 7, 2004)114 Cal.App.4th 1089

If written agreement provides that City will evaluate and process event producer’s applicationsfor future events on the same basis as other producers’ applications, it is a breach of thecovenant of good faith and fair dealing for City to refuse to accept event producer’s applicationsfor future events.

Event Producer and City entered into written agreement whereby (according to Producer’scomplaint) Producer was to pay $114,550 for renovation of the City’s Amphitheater in exchangefor a credit in that amount against City licensing fees for future productions. The complaint alsoalleged that City was to evaluate and process Producer’s applications for such futureproductions on the same basis as other producers’ applications. City notified Producer that itwould not authorize any of its productions for the year 2001. Producer alleged, inter alia, thatCity breached the covenant of good faith and fair dealing by refusing to process its applicationsfor future productions.

City demurred to Producer’s complaint and the trial court sustained the demurrer, holding thatthe complaint did not allege a breach of contract. The appellate court reversed, finding that thecomplaint sufficiently alleged a breach of the covenant of good faith and fair dealing.


Held:

Implied covenant of good faith and fair dealing required the City "to do everything that thecontract presupposes the City will do to accomplish its purpose. …[T]his meant that City wasrequired to consider proposals submitted by Pasadena Live.”

VIII. Public Property

Cases related to eminent domain matters are covered in a separate session.

Citizens for Better Streets v. Board of Supervisors,

(Cal.App. 1 Dist. February 26, 2004)

____Cal.App.4th____

Plain language of Streets and Highways Code section 72 does not require City to obtain fullmarket price for right-of-way lands State of California granted to City after Earthquake.

State of California granted earthquake damaged right-of-way lands (the property) to City andCounty of San Francisco (City) under Streets and Highways Code section 72 (§ 72) after the1989 Loma Prieta earthquake caused portions of the Embarcadero Freeway to collapse. Theplain language of § 72 required City to either use the property or the proceeds from the sale ofthe property “for the sole purpose of constructing an alternate system of local streets.” Cityproposed a long-term below market rate lease of one of the property parcels so it could be usedfor an affordable housing project. Taxpayers filed action and moved Court for a preliminaryinjunction restraining City (through its Board of Supervisors) from leasing the property for anunintended purpose and below market rate. The trial court denied the preliminary injunction andthe appellate court affirmed.

Held:

Because nothing in § 72’s language requires the property to be sold for the market rate priceand the proceeds from the below market lease will be used for the construction of alternate localroads, the City is in compliance with § 72.

Mt. San Jacinto Community College District v. Superior Court,

(Cal.App. 4 Dist. March 26, 2004)

____Cal.App.4th____

Property owner that improves property without advance court approval, and after service ofsummons for eminent domain action, not entitled to sue for values of such improvements underan inverse condemnation theory.

Public college district served private college with eminent domain action seeking to acquireapproximately 30 acres of vacant land. District deposited the probable compensation for theproperty. Several months later, the private college started to build educational facilities on theproperty. District took possession after the improvements were completed (due to a courtordered stay to allow such completion to occur). The trial court ruled that the district had theright to take the property and granted the district’s motion in limine prohibiting the private collegefrom introducing any evidence regarding the value of the improvements. The private collegethen filed an inverse condemnation action against district for the value of the improvements.


District moved for summary judgment and trial court denied motion finding that triable issues offact existed as to whether district had taken improvements and, if so, the valuation date. Districtpetitioned appellate court for writ of mandate directing the trial court to grant the motion forsummary judgment. Appellate court issued peremptory writ of mandate directing the trial courtto enter order granting district’s motion for summary judgment.

Held:

Private college may not recover by inverse condemnation action what it failed to properly pursuein the eminent domain action when it failed to obtain prior court authorization to buildimprovements after being served with eminent domain action.

IX. Regulating Businesses and Personal Conduct

Hotel & Motel Association of Oakland v. City of Oakland,

(9th Cir., Cal. September 17, 2003)

344 F.3d 959

Ordinances requiring all hotels, including older hotels, to abide by new maintenance,habitability, security, and record-keeping standards substantially advance City’s legitimateinterests in reducing illegal activity around hotels.

Hotel and motel owners and their association (“Association”) challenged the constitutionality ofcity ordinances placing maintenance and habitability restrictions on hotels, motels, and roominghouses ("hotels"). The ordinances require hotels to conform to maintenance, habitability,security and record-keeping standards. Legal non-conforming use hotels were classified as"Deemed Approved" hotels and were required to conform to the new standards. The Cityenacted the ordinances because it found that a continuing pattern of illegal activity existed,including prostitution and drug use, around poorly maintained hotels. Increased policing andcivil abatement actions did not adequately address such problems so the ordinances wereenacted to require better maintenance and management practices in the problem areas. TheAssociation argued that the ordinances constituted an unconstitutional taking and also argueddenial of procedural due process, equal protection violations, and that the ordinances were voidfor vagueness. The District Court dismissed the case and the appellate court affirmed.

Held:

1. Facial takings claim alleging the denial of the economically viable use of Association'sproperty is not ripe because Association’s pleadings do not allege that it “has sought, and beendenied, just compensation by the state” and “no constitutional violation occurs until justcompensation has been denied.”

2. Ordinances applying basic maintenance, housekeeping, and security regulations to all hotelsand conditioning continued operation on a business's compliance with the new regulations havea reasonable relationship to the public purpose of curtailing the illegal activity, and thussubstantially advance a legitimate government interest.


Lombardo v. Warner,

(9th Cir., Oregon December 29, 2003)353 F.3d 774

Oregon Motorist Information Act, prohibiting outdoor signs larger than twelve square feet that donot attract attention to activities conducted at the premises on which the sign is located, is avalid content neutral, time, place, and manner restriction even if it prevents the display of 32-square foot sign reading “For Peace in the Gulf” at citizen’s residence.

A citizen of Oregon wanted to display a 32-square-foot sign reading "For Peace in the Gulf” athis residence. The Oregon Motorist Information Act prohibits outdoor advertising signs of morethan twelve square feet unless the signs fall within one of several exceptions to the Act. Thedefinition of “outdoor advertising sign” included “[a]ctivities not conducted on the premises onwhich the sign is located.” Signs which “attract attention to activities conducted on the premiseson which the sign is located" [internal brackets and ellipsis omitted] are excepted from the act.The Act also provides that the content of the sign may not be considered in any decision to denyor grant a variance.

The citizen filed an amended complaint under 42 U.S.C. § 1983 alleging that the Act wasunconstitutional on its face and also violated his constitutional rights as applied. A magistratejudge recommended dismissal because, on its face, the Act burdens commercial and non-commercial speech equally is not content based, and, as applied, the citizen failed to apply for avariance. The district court dismissed the action for failure to state a claim based on themagistrate’s findings and recommendations and the citizen appealed. Affirmed.

Held:

1. Oregon Motorist Information Act is a valid content neutral, time, place, and manner restrictionbecause the Act contains neutral provisions permitting both commercial and non-commercialmessages to be displayed onsite and any decrease in non-commercial signs would be causedby the decisions of individual sign owners and not the Act.

2. Oregon Motorist Information Act does not allow officials to exercise unbridled discretionbecause it prohibits content from being used as a basis for decisions and state officials can lookto judicial precedent when applying the Act.

Slauson Partnership v. Ochoa,



In denying anti-SLAPP motion, Court may consider post-complaint facts regarding protestors’unreasonable conduct and failure to comply with stipulated injunction.

Plaintiff Slauson Partnership owned a mini-mall and leased space to plaintiff Smith and othersfor use as a club in which nude entertainment is featured. Defendant is the pastor of a churchlocated 1000 feet from the club. Church members held ongoing protests at the club andplaintiffs filed a complaint for injunctive relief against the pastor defendant and 5000 Doedefendants. The parties entered into a stipulated injunction, which set forth reasonable time,place and manner restrictions on the protests while allowing for considerable access to the mini-mall property. The protestors then violated the terms of the stipulated injunction and engaged intortuous conduct. Defendant filed an anti-SLAPP motion under Code of Civil Procedure section


425.16 and the trial court entered an order denying the motion. The appellate court affirmed thetrial court order.

Held:

1. To prevail on an anti-SLAPP motion, the moving party must first establish that the cause ofaction attacked arises from an act in furtherance of the moving party’s rights of petition or freespeech under the United States or California Constitutions. If the moving party can so establish,the burden then shifts to the non-moving party to make out a prima facie case, assuming thefacts could be proved at trial, showing a probability of success on the merits.

2. An anti-SLAPP motion is more akin to a motion for summary judgment than it is to ademurrer and thus facts occurring post-complaint were relevant to a determination of the meritsof the anti-SLAPP motion.

3. Plaintiffs demonstrated a probability of success in obtaining injunctive relief at trial because,after the defendant stipulated to an injunction, the protestors violated the terms of thatinjunction, harassed customers of the mini-mall, and engaged in acts of vandalism.

Talk of the Town v. Department of Business and Finance Services (City of Las

Vegas),

(9th Cir., Nev. September 10, 2003)343 F.3d 1063

Suspending erotic dance license for three weeks for violations of a generally applicable liquorlicense ordinance not an infringement of protected First Amendment conduct.

The City of Las Vegas conducted an undercover investigation of the practices of an erotic danceestablishment (TOT) that was not licensed to serve alcoholic beverages. The investigatorsdetermined that alcoholic beverages were constantly being brought into and consumed withinthe business in violation of City ordinances prohibiting businesses from allowing such conductwithout a liquor license. After a hearing on the matter, the City Council found that the violationshad indeed occurred and, as a penalty authorized under its liquor license ordinance, suspendedTOT’s erotic dancing license for three weeks. TOT appealed the Council’s decision to Nevadastate court and the City removed the matter to federal district court. Both sides filed motions forsummary judgment. The federal district court rejected TOT's constitutional procedural challengebut found that the City’s erotic dance license ordinance was facially unconstitutional in that it didnot provide adequate safeguards as to the suspension or revocation of the erotic dance license.TOT appealed the judgment insofar as it allowed future enforcement of the Council’ssuspension order and the City cross-appealed to challenge the district court’s opinion that thefirst amendment was in any way implicated by its actions. Reversed and remanded.

Held:

The City’s ordinance barring consumption of alcohol in unlicensed establishments does notregulate protected expressive conduct and does not place a disproportionate burden onexpressive conduct because it applies to all businesses. A generally applicable law is notunenforceable just because it may affect protected expressive conduct.


Carson Harbor Village, Ltd. v. City of Carson,

(9th Cir., Cal. January 2, 2004)353 F.3d 824

Mobile home park owner must try to obtain just compensation using state remedies beforefederal regulatory taking claim is ripe.

Mobile home park brought an action in federal district court challenging the City Rent ControlBoard’s decision to only allow an increase of $14.21 per lot even though the park’s applicationrequested rents increases from $223 to $241. The Park filed its complaint under 42 U.S.C.section 1983 and alleged that the Board's partial denial of its increase application constituted aregulatory taking of property. The City moved to dismiss the Park’s takings claim for lack ofsubject matter jurisdiction and the district court granted the motion. The district court found thatthe claim was not ripe because the Park had not yet tried to obtain compensation under statelaw and the Park appealed. The Park argued that it is not required to seek state remediesbecause such remedies are inadequate. The Ninth Circuit affirmed the district court.

Held:

1. A plaintiff may be excused from exhausting state remedies if the plaintiff demonstrates thatthe remedies are "unavailable or inadequate."

2. Park’s remedy is to seek a writ of mandate and, if the writ is granted, seek an adjustment offuture rents from the Board, and only if those remedies are then inadequate will an inversecondemnation or 42 U.S.C. section 1983 action be ripe.

Hacienda Valley Mobile Estates v. City of Morgan Hill,

(9th Cir. December 17, 2003)

353 F.3d 651

As applied challenge can be brought for premium claim under mobile home rent controlordinance if such claim is based on factors other than the legality of the challenged ordinancebut challenge is not ripe until writ seeking administrative mandamus is sought in state court.

City enacted a mobile home rent control ordinance in 1983, which was amended in 1993 toinclude a provision prohibiting mobile home park owners from increasing space rent upon thesale of mobile homes. In 2000, a park Owner petitioned the City Rent Control Commission for a$200.00 per month space rent increase and the Commission authorized an increase of only$4.03 per month. Owner challenged the Commission’s decision in federal district court. Ownerargued that the ordinance allows existing tenants to charge a premium when selling their mobilehomes because of the guaranteed low rent and that such a premium constitutes anunconstitutional taking. The district court dismissed the action finding that it lacked subjectmatter jurisdiction because Owner’s challenge was not ripe. The district court also concludedthat Owner was making a facial, and not as-applied, challenge to the ordinance. Ownerappealed the district court ruling as to Owner’s fifth amendment taking claim under 42 U.S.C.section 1983 (violation of civil rights) and argued that its claim was an as-applied challenge.The Ninth Circuit affirmed the district court but found that Owner’s challenge was an as-appliedchallenge because the ordinance did not form the sole basis of Owner’s taking claim.


Held:

1. Levald, Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir. 1993) does not stand for theproposition that all premium challenges to rent control ordinances are facial claims. An as-applied challenge to a rent control ordinance based on allegations of a premium is possiblewhen factors other than the ordinance’s legality form the basis of the challenge.

2. Federal court challenge to Rent Control Commission’s decision on rent increase request notripe until Owner seeks writ of administrative mandamus in state court.

Morgan v. City of Chino,


Due process and City's rent control ordinance allows City Council to consider rate of return oninvestment in mobile home park as a whole, as opposed to evidence regarding just one capitalimprovement, in denying requested rent increase.

City had a rent control ordinance for mobile home park space rents. Mobile home park Owner(“Owner”) paid approximately $150,000 for roadway repairs and for installation of a product thatmade the roads within the park more durable and then, based on that capital improvement,petitioned the City’s Mobile Home Park Review (rent control) Committee for a temporary rentincrease ($12.26 per month for five years). Under the City’s ordinance, in considering suchrequests, the Committee was required to:

“consider all relevant factors, including, but not limited to, increased or decreasedcosts to the mobile home park owner attributable to … normal repair andmaintenance, capital improvements, and the upgrading and addition of amenitiesor services, as well as a fair rate of return on investments”

After conducting several hearings, the Committee recommended to the City Council “atemporary rent increase of $8.53 per month for eight years … [that the installed product] was acapital improvement [and] … cost approximately $150,000, … is properly amortized over aperiod of eight years, and 9.25 percent per annum would be a reasonable rate of return [for theproduct]”.

The Council remanded the matter back to the Committee directing it to consider the Owner’sactual return on her investments, including the interior streets, and to determine whether herreturn on her park investments is fair. On remand, the Committee still limited its findings to theOwner’s capital investment in the roadway product and did not address the investments in thepark as a whole. The Council ultimately found that the Committee’s findings were inadequateand set a hearing to obtain additional evidence. At that later hearing, the Council heardevidence from the Owner and some of her renters and unanimously denied the request for atemporary increase. The Owner did not provide any evidence on her actual rate of return for thepark but relied only on the cost of the single capital improvement (roadway repairs and product).

Owner sued City for declaratory relief, administrative mandamus, and for violations ofsubstantive due process. The trial court entered judgment in favor of the Owner on all countsand awarded her over $200,000 in damages and attorneys fees. City appealed. The appellatecourt reversed the trial court judgment in all respects and awarded the City costs.


Held:

Nothing in the Constitution of the State of California, the Federal Constitution, or the City’sordinance, required the City to approve a rent increase on the sole basis of a capitalimprovement to the property. The Council applied the correct standard when it considered thecapital improvement to be only one relevant factor in deciding whether the Owner was earning afair return as a whole.

Ocean Park Associates v. Santa Monica Rent Control Bd.,(Cal.App. 2 Dist. January 7, 2004)


Rent Control Board does not have power to initiate, on its own, rent adjustments on behalf ofindividual tenants.

Apartment building undergoing numerous construction projects was subject of Rent ControlBoard’s petition to decrease rents due to the construction rendering certain common areasunusable and creating noise and disruption. Owner sought writ of administrative mandate tooverturn Board’s decision to decrease rents for all the tenants due to the construction relatedproblems. One of the Owner’s arguments was that the Board lacked authority to petition for allthe tenants of the apartment building as less than 20% of the tenants complained to the Board.The language of the enabling ordinance stated that only landlords or tenants could bringrequests for individual rent amount adjustments before the Board. The trial court denied theOwner’s writ petition. The appellate court reversed the trial court and found that the Boardlacked authority to decrease the rent for the non-complaining tenants.

Held:

Rent control ordinance clearly states that the landlord or the tenant are to initiate requests forindividual adjustments, not the Board. Board initiation of such requests represents a majordeparture from the Board’s original role and is inconsistent and in conflict with the rent controlordinance. “By taking that power onto itself, the Board transformed itself from an impartialarbiter of rent adjustments into an advocate for individual tenants.” Board does not have thepower to initiate rental adjustment requests and the trial court should have granted the Owner’spetition as to the non-complaining tenants.

Topa Equities, Ltd. v. City of Los Angeles,

(9th Cir., Cal. September 8, 2003)

342 F.3d 1065

Local rent control ordinance not federally preempted as to provisions prohibiting apartmentbuilding owner that left federally subsidized below-market rent program from increasing rents tomarket levels until after below-market tenancies are terminated.

Plaintiff owns an apartment building in Los Angeles and had participated for approximately 27years in a federal program which subsidized plaintiff’s mortgage payments in exchange forplaintiff charging below-market-level rents. After leaving the federal program, plaintiff wanted toincrease rents to market-levels. Under amendments to a City of Los Angeles ordinance thatoccurred roughly a year prior before plaintiff exited the federal program, plaintiff cannot raise therents to market-levels until existing tenancies terminate. The City ordinance exempted plaintiff’sapartment building during the time plaintiff participated in the federal program. Plaintiff brought


a federal court action for relief from the City’s ordinance on the grounds that such ordinance ispreempted by federal law. The district court granted the City’s motion for summary judgmentand the Ninth Circuit affirmed.

Held:

1. Federal program’s statutory language preempting local ordinances which restrict or inhibitthe prepayment of the subsidized mortgage does not expressly preempt local ordinanceprohibiting increases to market-level rents until after existing below-market tenancies terminate.

2. No conflict preemption exists between local ordinance and federal program’s statutoryscheme because express language of federal statute allows local governments to enact rentcontrol ordinances of general applicability.

Independent Towers of Washington v. Washington,

(9th Cir., Wash. November 18, 2003)350 F.3d 925

State statutes regulating tow truck businesses making non-consensual tows are not pre-emptedby the federal Interstate Commerce Act under non-consensual towing exception.

Independent Towers of Washington, an organization of registered tow truck operators in theState of Washington, brought a class action suit against the State of Washington asserting thatWashington State's regulation of the towing industry was preempted under the InterstateCommerce Act, 49 U.S.C. § 14501(c).

The State of Washington moved for summary judgment and asserted that the challengedregulations fell within the safety, financial responsibility, and price of non-consensual towingexceptions to preemption. The district court agreed and granted the State's motion for summaryjudgment. The Ninth Circuit affirmed the district court, finding that the appellants waived theright to appeal the ruling on many of the statutes at issue because the preemptive effect ofthose statutes was not adequately argued or analyzed in appellants’ briefs.

Held:

1. The Interstate Commerce Act does not preempt State regulation setting the price for non-consensual towing operations.

2. The Interstate Commerce Act does not preempt local safety regulations on the removal ofabandoned vehicles.

Abrams v. City of Ranch Palos Verdes,

(9th Cir., Cal. January 15, 2004)354 F.3d 1094

Abrams is licensed by the FCC as a amateur radio operator. City issued Abrams a constructionpermit for an amateur radio antenna located at Abram’s home. Ten years later, City found outthat Abrams was using the antenna for commercial purposes. City obtained an injunctionprohibiting such use until Abrams obtained a conditional use permit (CUP). City then deniedAbrams’ application for a CUP.


Abrams then filed an action in federal district court seeking declaratory and injunctive relief,damages, and attorney’s fees and costs claiming City violated his rights under the federalTelecommunications Act of 1996 (TCA) and he was therefore entitled to the remedies providedunder 42 United States Code section 1983 (§ 1983). The district court ordered the City to grantthe CUP but concluded that the TCA remedies subsumed all of Abrams’ remedies and thereforeprecluded his recovery under § 1983. Abrams appealed the district court’s decision as to theavailability of § 1983 remedies only and the 9th Circuit reversed, remanded, and directed thedistrict court to award § 1983 damages.

Held:

1. Remedies under § 1983 are available if plaintiff proves s/he has been deprived of a rightunder a federal statute and Congress has not expressly or impliedly foreclosed such remedies.

2. TCA section 601(c)(1) shows Congress’ affirmative intent to preserve § 1983 remedies.

Foley v. Superior Court,

(Cal.App. 4 Dist. March 30, 2004)

____Cal.App.4th____

City ordinance making it illegal to be a spectator at an illegal speed contest not preempted byVehicle Code sections making it unlawful to engage in or aid and abet in any motor vehiclespeed contest or exhibition of speed on a highway.

Foley was charged with being a spectator at an illegal motor vehicle speed contest under City’sordinance. Foley demurred to the criminal complaint arguing that City’s authority to criminalizespeed contests and related activities is preempted by Vehicle Code sections 23109, 23109.2,and 23109.5. The lower court overruled Foley’s demurrer and denied Foley’s subsequentpetition for writ of prohibition seeking dismissal of the complaint on the same preemptionargument. Foley then petitioned the appellate court for a writ of prohibition for the same reliefand on the same basis. The appellate court issued an order to show cause and then deniedFoley’s petition.

Held:

Vehicle Code provisions prohibiting motor vehicle speed contests or exhibitions of speed on ahighway are complementary to City’s ordinance prohibiting spectators from being present atsuch contests or exhibitions and therefore do not preempt City’s ordinance.

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

Rahimi v. City of Pittsburg,(District Court, N.D. Cal. September 22, 2003, Slip copy)

2003 WL 22213522 [Case not reported in F.Supp.2d]

Providing owner with pre-abatement hearing notice, notice of the findings of that hearing andright to appeal, and ample time allowed to bring property into compliance sufficient proceduraldue process prior to City towing 19 nuisance vehicles from private property.

City declared public nuisances on two of plaintiff’s properties and, after approving numerousextensions of time for plaintiff to bring his properties into compliance, abated the nuisances byremoving nineteen vehicles. City gave plaintiff a pre-abatement hearing notice and plaintiff didnot appear at that hearing. City then provided plaintiff with a letter detailing the findings made atthe hearing and allowing plaintiff three days from the date of that letter to abate the nuisancehimself. The letter was mailed to plaintiff and posted at plaintiff’s properties. One week afterthe deadline set forth in the letter, the City obtained an abatement warrant and had nineteenvehicles towed to a private storage. Plaintiff alleged procedural due process violations and filedan action in the district court to compel return of the vehicles.

Held:

The City’s actions in providing plaintiff with a pre-abatement hearing, sending plaintiff notice ofthe findings made at the hearing, and alerting him of his right to appeal within five days,combined with the numerous extensions of time for plaintiff to bring his property intocompliance, provided plaintiff with ample procedural due process.

City of Santa Paula v. Narula,

(Cal.App. 2 Dist. December 17, 2003)

114 Cal.App.4th 485

City ordinances are laws for the purposes of imposing attorneys fees under Code of CivilProcedure section 1033.5(a)(10)(C).

Apartment building was in violation of numerous building and safety codes. City tried to compelowners to repair the leased units for five years. The City's Appeals Hearing Board ordered theowners to repair the units and to pay the City’s costs of enforcement plus penalties and theowners refused. City recorded a lien against the apartment building for such costs andpenalties. A City ordinance authorized the lien to be foreclosed and the property sold after aCourt judgment authorizing same. The City ordinance also authorized an award of the City’sattorneys fees and costs.

The City obtained a judgment ordering the City’s lien to be foreclosed, authorizing the sale ofthe property, and that City was entitled to attorneys fees according to proof. The City thenmoved for $11,285 in attorney fees and the trial court awarded same. The owners filed amotion for reconsideration but did not appeal that ruling.

The owners then filed motions "to void judgments," expunge abstract of judgment and releaselevy. The trial court denied the motions. The owners appealed and the appellate court affirmed.


The City then filed a second motion for attorney fees and the trial court awarded $34,236, whichthe Owners appealed. Affirmed.

Held:

1. Res judicata, collateral estoppel, and the law of the case bars the owners from challengingthe validity of prior judgments.

2. Attorney fees for enforcing a judgment are authorized where they are otherwise provided bylaw and the City's ordinance is a law. Thus, a city ordinance may authorize an award ofattorney fees.

San Joaquin Motel and Hotel Property Owners Association v. City of Stockton,

Unpublished decision

(2003 WL 22255839, Cal.App. 3 Dist. October 2, 2003)

City may not require conformance with current Uniform Building Code (UBC) standards, asopposed to UBC standards in effect during original construction, for older buildings even if Cityrequires building owners to obtain new certificates of occupancy before buildings City orderedvacated can be reoccupied.

City began to aggressively enforce city building codes in its downtown area. As part of itsenforcement efforts, City issued notices to vacate if repairs were not completed within 30 days.Before the hotels could be occupied after the notices to vacate were issued, the City requiredthat a new certificate of occupancy be issued. City required the hotel owners who had beenissued notices to vacate to upgrade the buildings to conform to current Uniform Building Code(UBC) standards as opposed to the UBC standards in effect at the time of original construction.City based its decision to apply current UBC standards on the affected buildings not having thecertificate of occupancy the City required as part of its enforcement efforts. Property owners’association brought an action for preliminary injunction prohibiting City from requiringcompliance with current UBC standards and from demolishing hotels within 90 days from theowners being cited. The trial court granted the injunction and City appealed. The City arguedthat the association lacked standing to sue, failed to exhaust its administrative remedies, did notshow irreparable injury, and that the scope of the injunction was overly broad. The appellatecourt affirmed the trial court’s decision.

Held:

1. Association comprised of hotel owners has standing to bring an action for injunctive reliefregarding the “proper enforcement of the City’s codes and the impact of targeted enforcementon low-income hotel residents.”

2. “The exhaustion doctrine does not apply where the challenge is to the constitutionality of anagency’s procedures.”

3. Association’s evidence showing threat of properties being put out of business, because Citywas requiring them to conform to current UBC standards to obtain the certificates of occupancynecessary to re-occupy the buildings, was sufficient evidence to show that City’s actions poseda threat of irreparable harm to Association members.


4. Prohibition on demolishing buildings within 90 days of owners being cited supported byevidence of City’s customary practice of issuing demolition notices after issuing notices andorders to repair.

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CITY OF TRACY - League of California Cities · CITY OF TRACY Office of the City ... Ebbert v. Superior Court, 7 ... Constitution and argued that the counter and cross claims should