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City May Not Use “Anti-SLAPP” Motion to Dismiss Claim That City Employee Falsely Told Potential Tenants That Property Owner Was Criminally Convicted
April 23, 2013 | Bulletin No. 1026338.2
Property owners often bristle at statements that local government staff make to prospective tenants or purchasers of their property, concerned that they will be scared away by overly harsh or inaccurate speech. When those statements are perceived to have gone too far, property owners sometimes sue for defamation. A recent court ruling helps set the boundaries between the types of defamation claims against local government that will swiftly be dismissed as “strategic lawsuits against public participation,” and those that will be allowed to proceed to court.
Agencies Are Barred From Using Two Attorneys From The Same Private Law Firm Where One Acts As Advocate And One As Advisor In A Contested Administrative Matter
April 19, 2013 | Bulletin No. 1026210.1
A police officer claimed his due process rights were violated when a partner in a law firm advocated on behalf of a department within a city at a non-binding arbitration. Subsequently a partner from the same law firm advised the city’s decision making body when it reviewed the arbitrator’s award. The court of appeal held that the principles of due process prohibited the decision maker from being advised on the personnel matter by a partner from the same law firm as a partner that advocated on behalf of the department in the non-binding arbitration. (Sabey v. City of Pomona (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., April 16, 2013).
While Sabey involves a hearing in the employment context, the holding of the case should apply to any public agency administrative hearing where one attorney from a private firm acts as an advocate and another attorney from that same firm acts as advisor to the decision maker in the same matter.
Late Filing Of Appeal Of Environmental Impact Report And Project Approval Is Not Excused Under Code Of Civil Procedure Section 473
April 10, 2013 | Bulletin No. 1025553.1
An organization sought to challenge a county’s project approval and certification of an Environmental Impact Report for a 155,000-square-foot building, but filed the case three days late. The trial court dismissed the case. On appeal, the court upheld the trial court decision, finding that the specific, strict statute of limitations in the California Environmental Quality Act did not allow for application of the more general time extension contained in the Code of Civil Procedure. (Alliance for the Protection of the Auburn Community Environment v. County of Placer (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., February 28, 2013).
April 5, 2013 | Bulletin No. 1025328.1
A cooperative corporation that operates a nonprofit medical marijuana collective challenged city ordinances that ban medical marijuana dispensaries. The court of appeal held that the ordinances are not preempted by the Compassion Use Act of 1996 (“CUA”) or the Medical Marijuana Program Act of 2003 (“MMPA”) and upheld the trial court’s decision to permanently ban the collective from selling, providing, or making marijuana available within the city. (Conejo Wellness Center, Inc. v. City of Agoura Hills, (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., March 29, 2013).
UPDATE: Court Of Appeal Changes Its Mind On The Issue Of Whether A City Misdescribed A Project’s Objectives
March 29, 2013 | Bulletin No. 1022018.1
On November 27, 2012, a court of appeal ordered a city to correct the defects in a project description and alternatives discussion in a final environmental impact report (“EIR”) because the court concluded the city had misstated the project’s objectives in the draft EIR and the final EIR. On rehearing, the court of appeal found no misstatement of the project’s objectives in the final EIR. The court concluded, “While the draft EIR did fail to adequately delineate the project’s objectives, the final EIR corrected this problem.” (Habitat and Watershed Caretakers v. City of Santa Cruz (--- Cal.Rptr.3d ----, Cal.App. 6 Dist., February 19, 2013). However, the court did not change its conclusion that the alternatives discussion was inadequate.
This Legal Alert updates our previous Legal Alert entitled, “City Erred In Certifying Environmental Impact Report That Misdescribed Project’s Objectives,” January 22, 2013.
Court Of Appeal Finds County Approval Of EIR For Sand And Gravel Mining Project Does Not Violate CEQA
March 29, 2013 | Bulletin No. 1023301.1
An organization challenged a county’s approval of a final revised environmental impact report for a project that would allow sand and gravel mining in the bed of the Cuyama River. The court of appeal affirmed the trial court’s decision that denied the organization’s challenge to the county’s approval of the environmental impact report. (Save Cuyama Valley v. County of Santa Barbara (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., February 8, 2013).
Update: U.S. Court Of Appeals Upholds Constitutionality Of Sign Ordinance Because It Does Not Improperly Discriminate Between Different Forms Of Noncommercial Speech
March 27, 2013 | Bulletin No. 1023048.1
A church challenged the constitutionality of a town’s sign ordinance that regulates the size, duration, and location of temporary directional signs that the church places in the area surrounding its place of worship to announce the time and location of its services. The ordinance has different requirements for temporary directional signs relating to qualifying events, political signs, and ideological signs. The United States Court of Appeals for the Ninth Circuit held that sign ordinance is constitutional because it does not improperly discriminate between different types of noncommercial speech. (Reed v. Town of Gilbert, Arizona (--- F.3d ----, C.A.9 (Ariz.), February 8, 2013).
Our previous Legal Alert on the earlier appeal in this case can be found at, "City's Content-Neutral Sign Ordinance Regulating Temporary Signs Is Constitutional But Discrimination Among Forms Of Noncommercial Speech Must Be Considered", January 4, 2010.
Officers Can Be Held Liable For Preventing An Ambulance That Contained A Shooting Victim From Leaving The Scene And For Unreasonably Detaining Witnesses
March 10, 2013 | Bulletin No. 1022708.2
The federal court of appeals recently rejected certain public officials’ attempt to avoid liability by claiming qualified immunity. In that case, the parents and children of a shooting victim sued a county and individual sheriff officers for delaying an ambulance containing the victim from leaving the scene, detaining and separating the family for multiple hours for questioning, and pepper spraying the victim’s father when he tried to rejoin his family. The victim ultimately died before reaching the hospital. The family also claimed that two superior officers were liable for the actions of their subordinates. Both superior officers were at the scene, but they did not participate in any of the allegedly unlawful acts. The trial court concluded that none of the officers were entitled to qualified immunity in regard to the family’s claims. The court of appeals, with one judge dissenting, affirmed the trial court’s decision finding that the officers were not entitled to qualified immunity. (Maxwell v. County of San Diego (9th Cir. Feb. 14, 2013, No. 10-56671).
February 13, 2013 | Bulletin No. 1020998.1
A rural county passed an ordinance to regulate the cultivation of medical marijuana. A group of individuals who are “qualified patients” challenged the constitutionality of the ordinance. The court of appeal held that the ordinance does not conflict with the Compassion Use Act (“CUA”) or the Medical Marijuana Program (“MMP”) because neither statute gives anyone the unfettered right to cultivate marijuana for medical use. (Browne v. County of Tehama (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., February 6, 2013).
Employee Who Was Never Separated Or Dismissed From Employment Could Not State A Claim Against Her County Employer For Failure To Reinstate Or Help Her Obtain Disability Retirement Benefits
February 1, 2013 | Bulletin No. 1020177.1
An employee on disability leave brought a lawsuit against the county that employed her for failure to reinstate her or to help her apply for disability retirement benefits. A court of appeal held that the employee failed to meet the statutory requirements for her claims against the county because she was never separated or dismissed from her employment. (Mooney v. County of Orange (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., January 11, 2013).
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