Litigation Victories

COURT OF APPEAL AFFIRMS SUMMARY ADJUDICATION IN LA CONCHITA
LANDSLIDE CASE

The California Court of Appeal, Second District, Division Six, issued a published, unanimous opinion affirming the granting of summary adjudication in Alvis v. County of Ventura et al., 2nd Civil, Case No. B212337. That lawsuit arose out of a catastrophic, January 10, 2005, landslide that resulted in personal injury and property damage, including ten deaths. Thirty-seven plaintiffs sued the County of Ventura (“County”) seeking tens of millions of dollars in damages. Plaintiffs alleged that the landslide was partially caused by a retaining wall that the County built at the base of the hillside adjacent to the landslide area.

Richards, Watson & Gershon represented the County. The County moved for summary adjudication based on the design immunity defense established by Government Code Section 830.6 to challenge plaintiffs’ claims for wrongful death and personal injury, including dangerous condition of public property and nuisance. The County submitted evidence showing that the County Board of Supervisors approved the design of the wall, and that substantial evidence established that the approval was reasonable.

Plaintiffs contended that the approval was not reasonable because the Board was not fully advised of questions raised concerning the design by a consultant. Plaintiffs argued that the County’s exercise of discretion must be knowing or informed. The Court of Appeal disagreed, stating, “Section 830.6 does not state the approval must be knowing or informed. A court may not rewrite a statute to make it conform to a presumed intent that is not expressed.” The Court of Appeal concluded that the Board’s decision was informed because, when the Board approved the project, it had before it plans stamped by engineers and the recommendation of its professional engineering staff.

This ruling is important for governmental entities because it is the only appellate decision issued in the last two decades to address squarely whether the pproval element of design immunity requires an “informed” approval.

Plaintiffs also contended that the County lost design immunity because of changed conditions. Specifically, they claimed that water built up behind the wall that caused or contributed to the landslide. The Court of Appeal ruled that plaintiffs could not argue that water build-up behind the wall was a changed condition because the County had examined drainage in detail during the design phase. Plaintiffs could not claim that he same condition was both a design defect and a changed condition.

This ruling is important for governmental entities because it clarifies and narrows the types of defects that a plaintiff can claim to be a changed condition.

RWG’s litigation team included Robert C. Ceccon, as lead trial counsel, Michael F. Yoshiba, as second chair, Saskia T. Asamura, Kirsten Bowman, and Paralegal Manager Kerry Liberty.

For more information, please contact Robert C. Ceccon at rceccon@rwglaw.com, Saskia T. Asamura at sasamura@rwglaw.com or Michael Yoshiba at myoshiba@rwglaw.com.

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Mitchell E. Abbott and Ginetta L. Giovinco prevailed in the Court of Appeal in a contested validating action challenging the issuance of refunding certificates of participation by the City of Poway, in Poway Royal Mobilehome Park Owners Assn. v. City of Poway, Court of Appeal Number D053646. The Court of Appeal, hearing the matter on an expedited schedule, affirmed the San Diego Superior Court judgment upholding the validity of the City’s actions.

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Saskia T. Asamura and Susan E. Rusnak obtained dismissal of a lawsuit alleging violations of the Fair Employment and Housing Act in Harrison v. City of Brea, Orange County Superior Court, Case Number 30-2008-00110478. Plaintiff sued the City and 17 individual City officials and employees alleging harassment due to religion and reporting violations of law, retaliation, discrimination, and related claims. After sustaining two demurrers but allowing plaintiff leave to amend the complaint, the court ultimately ruled plaintiff failed to present any allegations to substantiate his claims. The matter is now on appeal.

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Saskia T. Asamura and Robert C. Ceccon obtained dismissal of two County employees in Fishback v. County of Ventura, Ventura County Superior Court, Case Number CIV 244304. Plaintiffs belatedly sought to bring the employees into an existing lawsuit against the County as Doe defendants long after it was filed. The County employees argued they were not proper Doe defendants because their identities were known to plaintiffs when they filed their initial complaint. When the trial court initially denied the motion to quash brought on behalf of the two employees, the employees filed a petition for peremptory writ with the Second District Court of Appeal, Sixth Division. The appellate court issued an Order and Alternative Writ that commanded the trial court either to grant the motion to quash or to show cause. The trial court entered a new order granting the motion to quash and to dismiss the action as to the two individual County defendants, and denied plaintiffs’ motion for reconsideration of that order.

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Toussaint S. Bailey and T. Peter Pierce prevailed on behalf of the City of Upland in Chang v. City of Upland, Case Number E046204, before the California Court of Appeal, Fourth Appellate District, Division Two. A group of property owners filed a petition for writ of mandate challenging a City Planning Commission decision and City Council affirmance that permitted construction and operation of a new animal shelter at a park owned and operated by the City. The San Bernardino County Superior Court ruled the claim against the Planning Commission was precluded as a matter of law because the Commission’s initial decision to permit the shelter was not the final administrative decision on the matter - a prerequisite to administrative mandamus. The trial court also rejected claims against the City and City Council because petitioners could not establish their compliance with a state statute that governs the manner in which zoning challenges may be brought against local governments. On appeal, petitioners argued that the trial court should have treated the claim against the Planning Commission as a claim against the City and City Council as well. The Court of Appeal summarily rejected petitioners’ position and affirmed the trial court’s judgment in its entirety.

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Robert C. Ceccon prevailed in the Second District Court of Appeal, Division Six, in Cule v. County of Ventura, Case Number B209795. The case was brought by a homeowner who alleged she was damaged by a landslide. RW&G represented the County of Ventura. The trial court dismissed the lawsuit against the County after RW&G argued that plaintiff failed diligently to prosecute the action, and failed to bring it to trial within two years. The Court of Appeal affirmed.

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Roy A. Clarke helped a City prevail in labor arbitration on a claim of unlawful retaliation under the Meyers-Milias-Brown Act. The union president alleged that his transfer of work location and assignment within his classification was made in retaliation for protected union activity. While acknowledging a variety of protected activity, disputes and conflicts between the City and union, the arbitrator found that the transfer had not actually harmed the union president since the pay, benefits, work and other conditions were substantially the same before and after the transfer. In addition, the arbitrator noted that the transfer was within the retained discretion of management under the MOU and the union had failed to show that the City did not have a legitimate operational basis for the change.

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B. Tilden Kim and Maricela E. Marroquin obtained a temporary restraining order and preliminary injunction on behalf of the People of the State of California and the City of Highland in People v. King, San Bernardino County Superior Court, Case Number CIVDS 906692. The City sought to prevent a motorcycle gang from hosting an illegal party at the headquarters of an alleged philanthropic organization. The Court granted the temporary restraining order and further enjoined defendants from sponsoring or hosting any events at the philanthropic headquarters without first obtaining a special event permit and from using the property for any use other than as a philanthropic headquarters.

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Maricela E. Marroquin prevailed in a small claims appeal on behalf of the Mountains Recreation and Conservation Authority (MRCA) in Johnson v. MRCA, Los Angeles Superior Court, Case Number SM 08A02841. Johnson, as President of United Lesbians of African Heritage (ULOAH) and ULOAH filed an action for breach of contract and discrimination under the Unruh Act against MRCA challenging MRCA’s denial of ULOAH’s application to use Temescal Canyon Gateway Park for a four-day retreat. The MRCA lost in small claims court and the court awarded plaintiff $5000 plus costs. The small claims appeal court reversed, ruled in favor of the MRCA, and ordered Johnson and ULOAH to pay the MRCA its costs.

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Sayre Weaver, T. Peter Pierce and Veronica Gunderson achieved victory in the United States Court of Appeals for the Ninth Circuit, successfully defending a regulation adopted by Alameda County that bans the possession of firearms on County-owned property. The regulation was adopted in the wake of a shooting that resulted in several injuries at the County Fairgrounds. In Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), the Court rejected challenges to the County’s ordinance brought by a gun show operator, and held that the ordinance is valid under the First Amendment, Second Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

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RW&G Achieves Victory
in La Conchita
Landslide Litigation

RW&G represented the County of Ventura in two lawsuits arising out of a massive landslide. On January 10, 2005, after two weeks of heavy rains, a landslide suddenly struck the town of La Conchita, which is located in an unincorporated area of Ventura County abutting Highway 101. In approximately thirty seconds, more than one hundred million pounds of debris moved into the town at speeds of up to 20 miles per hour. The landslide caused ten deaths, buried several people alive, and damaged or destroyed more than a dozen residences.

The town of La Conchita is located in a geologic hazard area and nestles at the base of a large hill that has been subject to repeated landslides. The hill is owned by a private entity. In 2000, the County constructed a retaining wall at the base of the hill after it cleared the roadway of debris from a landslide in 1995. After the 2005 landslide, more than one hundred plaintiffs filed two separate lawsuits against the County and the adjacent landowner. Plaintiffs alleged that the County was liable for damages based on theories of dangerous condition of public property, nuisance, wrongful death, and inverse condemnation. Plaintiffs asserted two theories against the County: (1) that the wall destabilized the hillside; and (2) that the wall diverted debris towards certain plaintiffs.

On September 26, 2007, the Court granted summary adjudication in favor of the County based on design immunity, finding substantial evidence that the County reasonably approved the design of the wall. As a result of this ruling, the Court dismissed all of the personal injury claims against the County.

On June 9, 2008, trial began on the remaining cause of action for inverse condemnation, with the Court to decide the issue of the County’s liability. At the same time, plaintiffs tried the liability of the adjacent property owner to the jury. More than one hundred witnesses were named, including dozens of expert witnesses, and the trial exhibits consisted of more than one hundred thousands pages of documents.

At the start of trial, plaintiffs demanded $35,000,000 from the County to settle the lawsuit. The County offered to dismiss the lawsuit in exchange for a waiver of costs. On July 10, 2008, while plaintiffs were still presenting their case-in-chief, plaintiffs dismissed their inverse condemnation claim against the County in exchange for a waiver of costs. Plaintiffs reserved the right to appeal the Court’s ruling on the County’s motion for summary adjudication.

The combination of the Court’s ruling on the summary adjudication motion,and the plaintiffs’ unusual decision to dismiss the County in the middle of presenting their case was a significant victory for the County. After more than two years, the County paid no money to any plaintiff. RWG successfully defended the County against all claims filed against it.

RWG’s litigation team included Robert C. Ceccon, as lead trial counsel, Michael F. Yoshiba, as second chair, Saskia T. Asamura, Kirsten Bowman, and Paralegal Manager Kerry Liberty.

For more information, please contact Robert C. Ceccon at rceccon@rwglaw.com or Michael Yoshiba at myoshiba@rwglaw.com.

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County of Ventura Prevails
in Landslide Litigation

On September 26, 2007, the Ventura County Superior Court granted the motion for summary adjudication of the County of Ventura in Alvis v. La Conchita Ranch, Case No. CIV238700 (and 22 related and consolidated actions). The lawsuit arose out of a catastrophic landslide that occurred on January 10, 2005, which resulted in personal injury and property damage, including 10 deaths.

Thirty-seven plaintiffs sued the County of Ventura (“County”) seeking tens of millions of dollars in damages. Plaintiffs alleged that the landslide was partially caused by a retaining wall which had been built by the County at the base of the hillside adjacent to the landslide area. The wall was built to remove debris from the roadway from a prior landslide in La Conchita in 1995.

Richards, Watson & Gershon represented the County. The County moved for summary adjudication based on the design defect immunity established by Government Code section 830.6 to challenge plaintiffs’ claims for wrongful death and personal injury, including dangerous condition of public property and nuisance.

The County submitted evidence showing that the County Board of Supervisors approved the design of the wall, and that substantial evidence established that the approval was reasonable. The County submitted declarations from its employees offering opinions concerning the design of the wall, and the approval process. Plaintiffs argued that the County should not have approved the design of the wall, and they submitted the declaration of an expert geotechnical engineer questioning its design.

The Court agreed with the County, and ruled that the declarations offered by the County were substantial evidence, and that the contrary declaration offered by plaintiffs’ expert was vague. The Court dismissed all of the wrongful death and personal injury claims because the Court found that the County established as a matter of law that it was entitled to statutory design immunity.

For more information, please contact Robert C. Ceccon at rceccon@rwglaw.com or Michael Yoshiba at myoshiba@rwglaw.com.

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Wireless Providers Barred From Recovering Damages From Municipalities

The U.S. Ninth Circuit Court of Appeals has held that wireless service providers who are denied use permits by municipalities may not recover compensatory damages from those municipalities under the federal Telecommunications Act. In James A. Kay v. City of Rancho Palos Verdes, decided on September 21, 2007, the Ninth Circuit concluded that when Congress amended the Telecommunications Act in 1996 by imposing narrow limitations on zoning authority over wireless facilities, including antennas, Congress did not intend for wireless providers to recover damages if local authorities violated those limits and denied a permit. Two years ago, in the case City of Rancho Palos Verdes v. Abrams, the U.S. Supreme Court held that wireless providers may not recover attorney’s fees or civil rights damages against municipalities who violate the Telecommunications Act. Taken together, the Kay and Abrams decisions mean that local officials may exercise their discretion in reviewing wireless provider applications without fear of civil rights damages or damages under the Telecommunications Act.

Richards, Watson & Gershon represented the City of Rancho Palos Verdes in both cases. James A. Kay, Jr., et al. v. City of Rancho Palos Verdes, et al., 2007 DAR 14783 (9th Cir., September 21, 2007).

For more information, please contact T. Peter Pierce at tpierce@rwglaw.com.

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RW&G SUCCESSFULLY DEFENDS MISSION SPRINGS WATER DISTRICT WATER WELL ENVIRONMENTAL IMPACT REPORT

California Appellate Court Rules EIR Does Comply with CEQA

In an important case involving the adequacy of the environmental impact report (“EIR”) for a new well proposed by the Mission Springs Water District, the California Court of Appeal, Fourth District, Division Two, upheld the EIR and affirmed the right of the District to approve the well despite its adverse impacts on biological resources upon a finding that the need to provide water to those within its service area outweighed those adverse impacts. Counsel for the District, Rochelle Browne, successfully rebutted the claims of the Sierra Club that the EIR was defective because it identified the direct impact of the well on biological resources, particularly the mesquite hummock habitat, as less than significant even though it acknowledged that the impact was cumulatively significant. The opinion held that the EIR properly concluded that the impact on the mesquite hummocks was a cumulative impact and further that mislabeling an impact as cumulative rather than direct will not render an EIR inadequate or misleading so long as the impact is fully disclosed and that finding an impact to be cumulative rather than direct does not relieve an agency of its obligation to require all feasible mitigation. The opinion also contains an unusually detailed analysis of the EIR which provides a useful guide for evaluating the adequacy of an EIR. Sierra Club, et al. v. Mission Springs Water District, Fourth Civil No. E039194. A copy of the opinion is available by request to Rochelle Browne at rbrowne@rwglaw.com.

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The United States Supreme Court ruled in favor of the City of Rancho Palos Verdes in City of Rancho Palos Verdes v. Mark J. Abrams (Docket No. 03-1601). Eight justices joined in the Opinion of the Court, authored by Justice Scalia, holding that the limitations on local zoning set forth in the Communications Act of 1934, as amended by the Telecommunications Act of 1996, may not be enforced through an action under 42 U.S.C. section 1983 (and accordingly, attorney's fees are not available under 42 U.S.C. section 1988). Justice Breyer also wrote a separate concurring opinion. Justice Stevens concurred in the judgment. For more information, please contact Peter Pierce at tpierce@rwglaw.com.

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Rochelle Browne and Ginetta L. Giovinco were successful in representing the City of Upland in a CEQA challenge to Upland's approval of a conditional use permit for a recreational vehicle and boat storage facility on the tip of a closed landfill. Based on the city's brief, the court rejected all of petitioner's arguments that the EIR improperly failed to address all the impacts of the closed landfill.

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Amy Greyson and Inder Khalsa drafted the Ninth Circuit amicus brief on behalf of 62 California cities in San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004). The Ninth Circuit affirmed summary judgment for Morgan Hill against all claims that denial of a rezoning application violated the free exercise clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA").

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Mitchell E. Abbott and Patrick K. Bobko, after more than three years of litigation, successfully represented the City of Beverly Hills in upholding the constitutionality of the Beverly Hills Adult Entertainment Ordinance against a legal challenge brought by an adult cabaret.

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Rochelle Browne succesfully represented the City of Carson and the Carson Mobilehome Park Rent Review Board against a federal legal challenge by Carson Harbor Village Mobilehome Park. The case, Carson Harbor Village Ltd. v. City of Carson, et al., arose from the City of Carson's handling of applications for rent increases made by Carson Harbor, a 420-space, 70-acre mobile home park located within the City. The rent increases requested by Carson Harbor were partially denied by the City of Carson's Mobilehome Park Rent Review Board, resulting in the filing by Carson Harbor of a federal district court complaint claiming a violation of the Fifth Amendment's Taking Clause. The claim was dismissed by the district court in June 2002. The Ninth Circuit Court of Appeals' published decision affirms the federal district court's dismissal of the takings claim.

"The published decision (2004 DAR 91) agrees with the City's position that Carson Harbor had no federal takings claim because Carson failed to utilize the available state court remedies," said Ms. Browne. "Carson Harbor argued that it need not use state court remedies because recent California Supreme Court decisions demonstrate that there is no adequate compensation remedy in the California courts for takings in rent control cases. The Ninth Circuit rejected that argument." A copy of the opinion is available by request to rbrowne@rwglaw.com.

Lisa Bond successfully represented the City of Carson in a significant federal court environmental law case regarding alleged pollution from storm water runoff and involving claims under CERCLA, RCRA, the federal Clean Water Act and various common law theories. The case, Carson Harbor Village Ltd. v. Unocal Corporation, et al., concerned a property owner"s attempt to impose pollution-related costs in excess of $2.7 million on the city and other defendants, and to force the city to acquire the contaminated property at issue. United States District Judge Margaret Morrow granted summary judgment for Carson and denied the plaintiff"s motion for summary judgment.

Ms. Bond litigated the Carson Harbor Village case on behalf of Carson over a seven year period. The action was closely-watched by public entities and property owners due to the plaintiff"s assertion that Carson was liable for the costs of cleaning up property allegedly contaminated by pollution in storm water runoff. Having previously granted summary judgment in Carson"s favor on five other environmental claims, the district court ruled that the city was not liable under CERCLA either.

"The case is an important environmental ruling to cities for at least two reasons," Ms. Bond explained. "First, it will have far-reaching impact by restricting public entities" potential liability as 'arrangers" or 'operators" under CERCLA. Second, if public entities comply with the provisions of NPDES permits, pollution-related claims against them that allege violations of the Clean Water Act or common law nuisance and trespass are barred."

The victory in the Carson Harbor Village case is the latest in a series of major litigation successes obtained by RW&G on behalf of Carson during the firm's 35 year representation of the city. A copy of the opinion is available by request to lbond @rwglaw.com.

Rochelle Browne and David M. Snow successfully represented the City of Temecula in an important challenge to the County of Riverside's approval of a large specific plan without properly analyzing or mitigating the projects traffic impacts. Temecula asserted that the county had failed to properly address traffic impacts and cumulative impacts, and had also failed to impose feasible mitigation measures. The court agreed and ordered the county to prepare a supplemental environmental impact report before again considering whether to approve the project. This significant victory furthers Temecula's ongoing battle to force developments outside of its boundaries to mitigate their own traffic impacts, rather than relying on its circulation system to meet the regional transportation demands.