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December 2, 2013 | Bulletin No. 1067821.1
The Third District California Court of Appeal recently ruled that California's medical marijuana laws - the Compassionate Use Act ("CUA") and the Medical Marijuana Program ("MMP") - do not create a constitutional right to cultivate and possess marijuana, and likewise do not preempt a city's ordinance prohibiting medical marijuana cultivation. Therefore, cities may prohibit cultivation of all marijuana within their limits, including cultivation of marijuana for medical purposes.
Widow Granted Leave to File Late Claim Against Public Entity Because Delay Was Reasonable and Excusable
November 20, 2013 | Bulletin No. 1065223.1
A widow filed a notice of claim and application for leave to file a late claim with a public entity one year after a traffic accident that killed her husband. The court of appeals held that the widow’s failure to discover a basis for the public entity’s liability until seven months after the accident was excusable. (DeVore v. California Highway Patrol (November 13, 2013 (No. C071610) -- Cal.Rptr.3d ---- [13 Cal. Daily Op. Serv. 12,447].
City Planning Commission’s Certification of EIR Found Improper Because City Council Improperly Delegated CEQA Certification
November 8, 2013 | Bulletin No. 1041437.1
A city’s planning commission certified an Environmental Impact Report (“EIR”) for a city general plan update and recommended the city council approve the update. The certification and approval were not appealed to the planning commission but the city council held a hearing and certified the EIR and adopted the general plan. An organization filed suit challenging the EIR on the grounds that the approved EIR fell below California Environmental Quality Act (“CEQA”) standards and that the EIR required recirculation. The trial court granted summary judgment for the city on the grounds that the organization failed to exhaust its administrative remedies. The appellate court reversed finding that the organization properly exhausted its administrative remedies for two reasons: 1) the organization was not required to appeal the planning commission decision because the planning commission did not have authority to certify the EIR and 2) the organization administratively raised its concerns with respect to the adequacy of the EIR in its comment letter to the city council. (California Clean Energy Committee v. City of San Jose (September 30, 2013, H038740) --- Cal.Rptr.3d ---- [13 Cal. Daily Op. Serv. 12,075].
Magistrate’s Issuance of Warrant Demonstrates that Officers’ Actions are “Objectively Reasonable” and Thus Entitled to Qualified Immunity
November 8, 2013 | Bulletin No. 1041647.1
A man brought a lawsuit against police officers alleging violations of his Fourth Amendment rights. The officers conducted searches of his car, home, and workplace in connection with allegations that he disseminated indecent material to minors. The United States Court of Appeals for the Ninth Circuit held the police officers were protected by qualified immunity because they “were not ‘plainly incompetent’ in concluding that there was a fair probability that the searches would turn up evidence of stalking and dissemination of indecent material to minors.” (Armstrong v. Asselin) --- F.3d ----, C.A.9 (Alaska), November 1, 2013).
November 5, 2013 | Bulletin No. 1038651.1
After a city approved the expansion of a solid waste facility and a new solid waste transfer station, a community group sued, claiming the siting of the project violated state law by exposing the largely Latino population of the area to a disproportionate amount of pollution. The group also claimed that the project approval violated the California Environmental Quality Act (“CEQA”). The trial court dismissed both claims, finding that the antidiscrimination law did not apply because no state funding went to the city’s program, and that the CEQA claim was barred because the community group’s attorney missed a 90-day deadline to request a hearing. The court of appeal upheld the trial court finding on the discrimination claim, but reversed the dismissal of the CEQA claim. The court found that the attorney’s delay was an isolated, excusable mistake that he rapidly acted to remedy. (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116).
Winery Zoning Ordinance Allowing Establishment of Boutique Wineries Without Discretionary Permits Survives CEQA Challenge
November 1, 2013 | Bulletin No. 1037421.1
A county prepared an environmental impact report (“EIR”) and adopted a zoning ordinance allowing the development of small wineries “by right,” without a discretionary permit. A citizens group opposed to the ordinance sued, claiming the EIR was inadequate and the adoption of the ordinance violated the California Environmental Quality Act (“CEQA”). The trial court disagreed, upholding the EIR and the ordinance. On appeal, the appellate court upheld the trial court decision in all respects except that the appellate court reduced the amount charged to the citizens group for preparation of the administrative record in the case. (San Diego Citizenry Group v. County Of San Diego (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., July 30, 2013).
Wednesday, Nov. 13, 2013
City of Rio Vista
In-service workshop sponsored by the City of Rio Vista
New Law Provides that Public Agencies may not Take Punitive Action Based Solely on the Fact that a Public Safety Officer’s Name is on a “Brady List”
October 17, 2013 | Bulletin No. 1039884.1
The Governor recently approved Senate Bill 313 (“SB 313”), which adds section 3305.5 to the Government Code. Currently, the Public Safety Officers Procedural Bill of Rights Act provides that no punitive action may be taken against a public safety officer, including a denial of promotion on grounds other than merit, unless a public agency first provides the officer with procedural protections. SB 313 adds protection where a public safety officer’s name has been placed on a Brady list.
Volunteer Firefighters Qualify as Employees Under Fair Labor Standards Act and Family Medical Leave Act
October 16, 2013 | Bulletin No. 1039519.1
A volunteer firefighter alleged his termination violated the Fair Labor Standards Act (“FLSA”) and the Family Medical Leave Act (“FMLA”). The United States Court of Appeals for the Sixth Circuit reversed the district court’s grant of summary judgment for the City of Gibraltar. The court found that the volunteer firefighter was an employee of the City because he performed services with an expectation of compensation and the compensation was not a nominal fee. (Mendel v. City of Gibraltar (727 F.3d 565, C.A.6 (Mich.), August 15, 2013).
October 11, 2013 | Bulletin No. 1039201.1
In Meddock v. County of Yolo (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., September 10, 2013), a California court of appeal determined that a county cannot be held liable for an injury caused by a naturally occurring tree on unimproved property which fell on a person. The court ruled that because Government Code Section 831.2 provides immunity for an injury caused by a natural condition on unimproved property, regardless of the location where the injury occurred, the county was not liable.
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