June 2011

Claim Mailed to Public Entity's Risk Management Department Substantially Complies with Claims Requirement

June 1, 2011, by Meyers Nave

In an opinion published May 26, 2011 the California Court of Appeal, Sixth Appellate District, held that a tort claim mailed to a public entity's risk management department satisfies the claims presentation requirement under Government Code Section 915. The plaintiff in the case, DiCampli-Mintz v. County of Santa Clara, H034160, underwent surgery at a County hospital, suffered complications, and claimed that the County and two of its physician employees were at fault. Her attorney mailed a claim to the two County physicians, and the County's Risk Management Department. The Risk Management Department received the claim shortly thereafter, and forwarded it to the County's attorneys.

Litigation

Right to Compensation for Loss of Business Goodwill may be Assigned

June 16, 2011, by Claudia J. Gorham

A California Court of Appeals has reversed a trial court which held that the assignment of the right to receive goodwill compensation from the operator of a business to the franchisor was ineffectual. In Galardi Group Franchise & Leasing , LLC v. City of El Cajon (June 8, 2011), the operator of a Wienerschnitzel and the franchisor ("Galardi") ented into a franchise agreement and later executed an assignment in which the operator waived his right to compensation, and assigned any claim, for lost business goodwill to Galardi. The City acquired the premises for a police facility in 2007. Galardi and the operator tried to preserve the goodwill by relocating the restaurant, however, they were unsuccessful.

Eminent Domain and Inverse Condemnation

L.A. Police Officers Used Reasonable Force in Unintentional Death of Infant, Court Affirms

June 21, 2011, by Meyers Nave

On June 10, 2005 Raul Pena took his 19 month old daughter hostage in his auto shop after threatening to kill various family members and himself. A Los Angeles Police Department SWAT team was called in and attempted to negotiate with Pena, whom the officers knew was armed with a gun. Negotiations failed, and the officers developed a plan to try to save Pena's daughter, by distracting and shooting him. During execution of the plan, Pena shot at the officers, and they shot back intending to strike Pena but not the daughter, but killed both. The daughter's mother sued the City, claiming that the officers had used unreasonable force, which caused the daughter's death.

Litigation

EPA Has Exclusive Authority to Regulate Greenhouse Gas Emissions

June 22, 2011, by Meyers Nave

On June 20, 2011, in American Electric Power Co., Inc. v. Connecticut, the U.S. Supreme Court held that federal common law public nuisance claims for abatement of carbon dioxide emissions are barred because the Clean Air Act authorizes the U.S. Environmental Protection Agency to set greenhouse gas emission standards.

Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR

June 23, 2011, by Timothy D. Cremin

Questions often arise as to whether an agency can rely on an "old" certified environmental impact report to approve a revision to a project that was never built. In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of a 2008 Addendum to a 1994 environmental impact report (EIR) to approve a revised project. The Court rejected arguments that the Addendum was insufficient because it failed to analyze greenhouse gas (GHG) impacts which were not addressed in the 1994 EIR. A GHG analysis was not required because it was not new information that could not have been known in 1994 when the EIR was certified. The Court found that GHG impacts were known as early as the 1970s. The Court also found that the City properly incorporated and approved a new water supply assessment in the Addendum. The opinion also provides good guidance on the requirement to present issues with specificity before the agency as a prerequisite for raising the issues in court (the exhaustion of administrative remedies doctrine). Click here for a more detailed analysis of the case.

Next Steps for Redevelopment Agencies After Passage of Dissolution and "Pay to Play" Assembly Bills

June 30, 2011, by Meyers Nave

On Tuesday, the Legislature approved the latest budget proposal (SB 87) and sent the previously passed trailer bills, AB 1X 26 and 27, to the Governor for signature. The California Redevelopment Association and the League of California Cities will be filing legal actions in efforts to invalidate the legislation and obtain a stay on implementation.

If the legislation is upheld, redevelopment agencies will need to decide whether they should dissolve in accordance with AB1X26, or "pay to play" in accordance with AB1X27. This is a decision that should be analyzed in light of the particular circumstances of each redevelopment agency. Agencies should evaluate projects in process, property and other assets the city and agency may lose if the agency is dissolved, whether future net tax increment will be sufficient to fund planned redevelopment activities, and whether the agency can make the payments required by the legislation.