City Ordinance violated 8th amendment cruel and unusual punishment.

Jones v. City of Los Angeles 9th Cir. decided 04-14-2006

Municipal ordinance prohibiting sitting, sleeping, or lying on sidewalks violates Eighth Amendment’s cruel and unusual punishment clause

SC County Regulatory taking upheld

On or about February 25th, the 6th District Court of Appelate upheld SC County trial court that no regulatory taking occured on stated facts Shaw v. County of Santa Cruz (2009) 170 Cal.App.4th 229

Voting on motions, resolutions and ordinances in Watsonville

Four votes are required to approve an ordinance or resolution. WMC 2-1.208 Council action must be in the form of either motions, resolutions, or ordinances. WMC Sec. 2-1.201

Motions shall be used to express the Council’s decisions on routine questions or matters of temporary importance or to refer matters to the staff and shall be moved, seconded, and adopted by a voice vote, unless a roll call is requested by a Council member. Motions shall not be used for appropriation or expenditure of funds. Resolutions shall be used to express administrative decisions of the Council of a permanent or lasting nature and shall be introduced, seconded, and adopted by a roll call vote.

Resolutions shall be used to adopt the budget after the publication required by Section 1104 of the Charter. The Council may by resolution amend or supplement the adopted budget by transferring unused balances appropriated for one purpose to another, or by appropriating available revenue not yet appropriated in the budget.

Ordinances shall be used to adopt legislative formal policy, laws in exercise of the police power, and in other instances required by law or the Charter of the City.

Crtain provisions of the Government Code Section 54957.1 of the Brown Act requires certain actions to be reported out of closed session and depending on the nature of the vote, the actual for and nay votes and abstentions and presumably the nature of the abstention unless it was already reported before entering closed session.

When two thirds vote is required:

WMC 2-1.113 Procedural rules of order. Subdivision (a)(3) Limit or extend limits of debate. Any Council member may move to put limits on the length of debate. The motion shall be made and seconded and shall require a two-thirds (2/3) vote of the full Council to pass.

2-1.104 Prohibited action. The Council shall be prohibited from taking any action on any item not appearing on the posted agenda, unless:

(a) The Council determines by majority vote that an emergency situation exists. Each newspaper and radio or television station which is entitled to special notice shall be notified of such emergency meeting at least one hour before such meeting. No closed session shall be held during an emergency meeting. All special meeting requirements shall otherwise be applicable to an emergency meeting;

(b) The Council determines by a two-thirds (2/3) vote of the full Council, or, if less than two-thirds (2/3) (five (5) Council members) are present, then by unanimous vote of the Council members present, that the need to take action on the item arose subsequent to the posting of the agenda; or

Charging for making records available for reproduction

In order to understand subdivision (b) of Evidence Code Section 1563, look at subdivision (b)(1) which provides that the reasonable costs you can charge before delivering the documents include but are not limited to the following:

i. Ten cents ($0.10) per page for standard reproduction of documents of a size 81/2 by 14 inches or less;
ii. twenty cents ($0.20) per page for copying of documents from microfilm;
iii. actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena;
iv. reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof;
v. actual postage charges; and
vi. the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.

Subd (b)(3) requires you to provide a statement itemizing such costs.

Subdivision (b)(6) provides that Where the records are delivered to the attorney, the attorney’s representative, or the deposition officer for inspection or photocopying at the witness’ place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by a third person for retrieval and return of records held offsite by that third person. If the records are retrieved from microfilm, the reasonable cost, as defined in paragraph (1), shall also apply.

So if you are merely providing records which will be photocopied by others, I think your cost is capped at $15 unless you went off site. Please call if you have questions.

Watsonville Pilots Assn et al v. City of Watsonville

A summary will go here.

Mobile home park rent board properly used preferred modified maintenance net operating income formula to determine rent increase.

Stardust Mobile Estates, LLC appealed from an order and judgment substantially denying its petition for writ of mandate concerning the application of the City of San Buenaventura mobile home rent control ordinance by the City Rent Review Board.

Stardust asserted on appeal that the trial court erred by

• (1) upholding the Rent Board’s use of a formula with a partial inflation index to determine the allowable rental increase;
• (2) upholding the Rent Board’s denial of a base year rental adjustment;
• (3) dismissing Stardust’s claims that the application of the rent control ordinance violated its constitutional right to be compensated for the taking of its property; and
• (4) denying Stardust procedural due process.

With respect to the denial of a base year rental adjustment, Division 6 of the Second Appellate District remanded to the Ventura County Superior Court to determine whether the Rent Board should reconsider the requested base year rental adjustment after providing Stardust the opportunity to make an offer of proof. In all other respects, the Court of appeal affirmed the judgment.

The City of Ventura used Ken Baar to determine the fair rate of return and hired Don Lincoln’s law firm out of San Diego to represent the City. The City has used Baar in the past and Don Lincoln and henry Heater defended a constitutional attack on the City of Watsonville’s rent control ordinance in the past.

Hiring retired police officers does not require meet and confer

Court Of Appeal Rules That City’s Hiring Of Retired Employees To Temporary Non-Career Positions Is A Fundamental Managerial Decision Over Which City Was Not Required To Meet And Confer. Sacramento Police Officers Assn. v. City Of Sacramento

On January 31, 2007, California’s Third District Court of Appeal ruled that the City of Sacramento was not required to meet and confer with the Sacramento Police Officers Association before filling a dramatic shortfall in police staffing by hiring retired officers as temporary non-career employees. The Court held that the City’s program reflected a fundamental managerial policy decision, exempting it from the meet and confer requirements of the Meyers-Milias-Brown Act (MMBA).

Importance: This decision is the first case to follow the California Supreme Court’s decision in Claremont Police Officers’ Association v. City of Claremont (2006) 39 Cal.4th 623. It complements and helps explain the Claremont decision, and provides important guidance to all local government employers in California – especially those employers who are using or considering using retired annuitants to address short-staffing in their police or sheriffs’ epartments.

Variance properly denied

In Ciraulo v. City of Newport Beach, decided by the 3rd Division of the Fourth Appellate District of the California Court of Appeal on appeal from the Orange County Superior Court, affirmed the trial court’s denial of a writ of mandate seeking to make the City of Newport Beach allow a 125 square foot rooftop elevator foyer, bathroom and fireplace where the plans only showed an elevator tower. The homeowner claimed innocense because they said they told their contractor to get a permit for the change and he said he did. Also, there was some indication the City building inspector failed to notice the expaned roof top structure was not on the plans. Court said it didn’t matter. City properly denied the variance application.

California Supreme Court decides CSUMB EIR deficient for failure to mitigate off-campus effects

City of Marina v. Board of Trustees of the California State University
California Supreme Court. S117816
Filed: July 31, 2006

The California Supreme Court filed its decision in the above referenced case this morning holding that it was an abuse of discretion for the Board of Trustees to certify the CSUMB EIR taking the small campus up to 25,000 students while not mitigating the effects under the California Environmental Quality Act. The EIR failed to identify and adopt specific measures that the Trustees found will mtigate most of the environmental efffects of campus expansion. Full mitigation of five of the environmental effects of the project will require action not just by CSUMB campus but also by the Fort Ord Reuse Authority (FORA). the five remaining effects were drainage, water supply, traffic, wastewater management and fire protection.

CSUMB defended saying the California Constitution [Art. XIII, Sec. 3, Art. (a)] prohibited CSUMB mitigating off-campus effects and also that the Trustees cannot feasibly mitigate CSUMB’s significant environmental effects.

The Supreme Court reversed the sixth court of appeal and affirmed the trial court decision.

City of Carson Redev. Agency could recover all money paid as consideration by innocent victims of mayor’s extortion scheme.

Carson Redevelopment Agency v. Padilla C.A. 2nd
July 5th, 2006

When a public official violates the Hobbs Act, title 18 of the United States Code section 1951(a), by soliciting and obtaining an extortion payment in exchange for approval of a public contract, that contract runs afoul of Government Code section 1090 and may be avoided pursuant to section 1092.

Section 1092 provides: “Every contract made in violation of any of the provisions of Section 1090 may be avoided at the instance of any party except the officer interested therein. No such contract may be avoided because of the interest of an officer therein unless such contract is made in the official capacity of such officer, or by a board or body of which he is a member.” %% Regardless of whether the third party who obtained the public contract is an innocent victim, the public entity is entitled to recover all consideration it paid to the third party. With this holding in mind, we conclude that the trial court properly granted summary judgment in favor of respondent Carson Redevelopment Agency (the Agency) on its complaint to recover $850,000 from appellants Michael and Bertha A. Padilla (the Padillas). The $850,000 was paid to the Padillas through a public contract that was approved and signed only after they paid $75,000 in extortion money to Agapito Diaz Fajardo (Fajardo), the former mayor pro tempore of the City of Carson.

The Court of Appeal affirmed the judgment entered in favor of the Agency and required that the the “victim” of the bribe request disgorge all $850,000.