CHW’s quarterly newsletter on public law topics is out. You can see it here.

This issue has articles on:

  • Developments in the California supreme Court regarding municipal revenues;
  • The SB 1383 mandate for organics recycling and efforts to soften the pending deadlines for local governments; and,
  • A recent Court of Appeal decision construing new housing laws broadly against charter city home rule authority.

We also touch on the firm’s current webinar offerings. You can see that listing here.

Check it out!

The California Department of Finance has now posted a weblink to the form cities can use to request American Rescue Plan Act funds here. Both City’s designated contact person for State-issued Coronavirus Relief Funds and the City Manager should receive a unique username and password to log into the Department of Finance’s webform application.

The application must include the information some basis information about the city, including:

  1. City name, Taxpayer ID Number, DUNS Number, and Address;
  2. Authorized representative name, title, and email;
  3. Contact person name, title, phone and email;
  4. Financial institution information.

In addition, the City must sign and return a copy of the Award Terms and Conditions (available here), the Assurances of Compliance with Title VI of the Civil Rights Act of 1964 (available here), and a Certification Form (available here).

Applications are due no later than June 23, so be sure to timely submit your application materials!

Cal/OSHA held a special meeting on June 9 to discuss potential revisions to the COVID-19 Emergency Temporary Standard adopted on June 3, in light of California Department of Public Health mask guidance issued on June 9. The Cal/OSHA Board voted to withdraw the revisions to the COVID-19 regulations adopted on June 3. Cal/OSHA staff will bring another proposal to the Board on June 17.

The June 17 proposal is expected to modify the Regulations adopted last week to align with the new CDPH guidance. Most notably, the CDH guidance states masks are not required for unvaccinated individuals in most circumstances, including indoors unless in specific facilities. Unvaccinated individuals are still required to wear masks “in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).” Based on discussion at the Cal/OSHA meeting, the June 17 amendments to the Regulations are expected to focus solely on updating face covering requirements, not other requirements from the Regulations adopted last week like physical distancing.

The Regulations in effect before June 3 remain in effect until Cal/OSHA adopts a new version.

After a marathon 10-hour meeting on June 3, the California Division of Occupational Safety and Health (“Cal/OSHA”) Occupational Safety & Health Standards Board has approved revisions to its COVID-19 Emergency Temporary Standards. (8 C.C.R., §§ 3205 et seq.)

Most notably, all employees must still wear face coverings when indoors or when outdoors and less than six feet from another person, regardless of vaccination status. There are only limited circumstances when employees are not required to wear face coverings, including new exceptions for vaccinated employees either: (1) when all persons in a room are fully vaccinated and not displaying COVID-19 symptoms; or (2) when a vaccinated employee is outdoors and does not have COVID-19 symptoms. This is more stringent than the Centers for Disease Control and Prevention’s guidance on masks for vaccinated individuals, which recommends allowing fully vaccinated individuals to resume most activities without wearing masks or physically distancing. The regulations also tighten the definition of face covering to expressly exclude “scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”

In addition, Cal/OSHA’s regulations require employers to comply with one of the two following provisions until July 31, 2021:

  1. All employees working indoors or at outdoor mega events must be separated from other individuals by at least six feet, regardless of vaccination status, unless:
    1. The employee is wearing a respirator required by his or her employer pursuant to a respirator protection program;
    2. The employer can demonstrate six feet of separation is not feasible, and the employees are kept as far apart as possible; or
    3. There is only momentary exposure while persons are in movement.
  2. All employees who are not fully vaccinated are provided respirators for voluntary use in compliance with requirements of a respiratory protection program under 8 C.C.R. section 5144(c)(2).

In other words, employers can either continue to require physical distancing or instead implement voluntary respirator use for unvaccinated employees. As of July 31, 2021, employers must offer respirators to all unvaccinated employees who are working indoors or outdoors at mega events and is no longer required to enforce physical distancing. Employees’ use of respirators, as opposed to regular face coverings, is voluntary. Respirators include any device “approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” The respirators must be provided consistent with 8 C.C.R. section 5144(c)(2) which requires, among other components, the City determine use will not create a hazard for its employees.

We do not expect this current iteration of the regulations to last long. At its June 3 meeting, the Occupational Safety & Health Standards Board initially rejected the proposed revisions, then accepted them only after first agreeing to form a subcommittee to promptly review potential amendments. The Board expressed intent to bring back additional regulations in July. We will keep you up-to-date as those potential changes become available!

The Legislature continues its efforts to increase the state’s housing supply, regardless of local land use policies and priorities. Senate Bill 9, introduced by Senate President Pro Tem Toni Atkins, will require cities to approve by right through ministerial action up to four units on existing single-family parcels.  Senate Bill 9 has passed the State Senate and is now pending in the Assembly. The bill is opposed by many cities and Cal Cities. Senate Bill 9 would require up to four residential units to be allowed per existing lot in most single-family residential zones statewide, without any discretionary review.  Recent amendments to the bill clarified that the intent is that this applies to charter cities as well as general law cities.

The bill requires ministerial approval of a lot split into two separate lots, and requires cities to approve most projects constructing two units on any single-family residential parcel. This expands the existing law requiring cities to approve accessory dwelling units, commonly known as second units, to now encompass two full-scale residential units on each single-family zoned parcel. Cities and counties would be limited to imposing objective zoning and design standards, such as height limits and setback requirements, unless those standards would physically preclude the construction of two residential units. Senate Bill 9 does not apply to developments that would require the demolition or alteration of housing that is restricted to very low-, low-, or moderate-income housing, or developments on a registered historic landmark or within a designated historic district. As with recent ADU legislation, local parking requirements are limited if the project is within one-half mile of a transit corridor, or there is a car share vehicle located within one block of the parcel.

Local agencies would be required to consider ministerially “urban lot” splits, defined as being “located within a city the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.” The minimum size for each resulting lot is 1,200 square feet.  Each lot shall be of roughly equal size.  The bill also contains the same exemptions as Senate Bill 35, prohibiting lot splits on several types of protected lands, e.g. wetlands, very-high fire hazard severity zones, unless the project complies with state mitigation requirements, hazardous waste sites, and conservation easement protected lands.

Under Senate Bill 9 eligible property owners would be able to split an urban lot into two lots, then build a duplex on each lot, and thereby build four units, where previously one unit would have been allowed.

Senate Bill 9 was previously introduced as Senate Bill 1120 during the 2019-2020 legislative session and passed both the Senate and the Assembly, but failed to advance to the Governor’s desk as the Assembly approved an amended version of SB 1120 only three minutes before the midnight deadline late last year, leaving the Senate no time to vote on Senate Bill 1120. The bill continues several years’ past efforts by Senator Weiner and other housing advocates, including the 2019’s Senate Bill 50. The next hearing is set for June 9, 2021 in the Assembly Committee on Local Government.

In 2017, the Court decided California Cannabis Coalition v. City of Upland, a dispute over an initiative to allow marijuana dispensaries in that city. It concluded that an initiative is not subject to some of Proposition 218’s limits on taxes proposed by city councils and county boards of supervisors. Its broad language opened the door to the possibility that a special tax proposed by initiative could be immune from the requirement for two-thirds voter approval. Three Court of Appeal decisions have now walked through that door, concluding that initiative special taxes can be approved by simple majorities of votes — two involving San Francisco (here and here) and one involving Fresno.  All three led to petitions for review in the California Supreme Court and the Supreme Court denied all three petitions. Thus, without deciding a case, the California Supreme Court has made very clear that the law is now settled — special taxes proposed by initiative require only simple majority voter approval.

CHW’s quarterly newsletter on public law topics is out. You can see it here.

This issue has articles on:

  • A landmark Court of Appeal decision reducing the number of votes required to adopt an initiative special tax;
  • A new statute governing redistricting after 2020 Census data are available next March; and,
  • A recent win for a public agency in a dispute with a utility about the cost to relocate utility lines to facilitate a public works project.

We also touch on the firm’s current webinar offerings. You can see that listing here.

Check it out!

Civil service commissions handle employee discharge appeals in most California counties and many cities. A recent case from the Second Appellate District, Deiro v.  Los Angeles County Civil Service Commission, clarified the jurisdiction of the Los Angeles County Civil Service Commission when an employee is both discharged and takes disability retirement.

The plaintiff in Diero was a deputy sheriff injured on duty in 2012. In 2015, he applied to LACERA for service-connected disability retirement. Shortly after his application was granted, but before his retirement began, the Sheriff’s Department discharged the deputy for bad conduct.  The deputy appealed to the Commission, but also began his disability retirement. Although the plaintiff had retired, overturning the discharge decision would have had a measurable impact on his retirement based on seniority credits and salary increases. After several years, the hearing officer proposed plaintiff’s discharge be reduced to a suspension. Just before the Commission adopted the recommendation, the Sheriff’s Department moved to dismiss because the Commission lacked jurisdiction over a retired deputy. The Commission agreed and dismissed the administrative appeal.

The Second Appellate District opinion focused primarily on three cases: Zuniga v. Los Angeles County Civil Service Com. (2006) 137 Cal.App.4th 1255, County of Los Angeles Dept. of Health Services v. Civil Service Com. of County of Los Angeles (Latham) (2009) 180 Cal.App.4th 391, and Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392.  Zuniga and Latham set a bright line rule, based on the Commission’s jurisdiction in the Los Angeles County Charter and Civil Service Rules, that when an employee retires during the pendency of a civil service appeal, her future status as an employee is by definition no longer at issue and the commission lacks jurisdiction to hear a wage claim brought by a former civil servant.

Plaintiff, however, argued that Hudson established a broad exception, that the Commission retains jurisdiction when an employee takes disability retirement while appealing his discharge.  The Second Appellate District disagreed.  Explaining the “egregious circumstances permeating” the Hudson case, the Court highlighted that the Hudson plaintiff had contested both her discharge and the finding of permanent disability, fought to return to work, and was ultimately successful. Conversely, there was no indication that the Diero plaintiff would return to work, and therefore no reason to deviate from the Zuniga/Latham rule.

Civil service commission jurisdictional requirements are unique, and may be broader or narrower than the jurisdiction of Los Angeles County. However, Diero affirms that jurisdictional issues should be addressed early before the civil service commission, to avoid lengthy and unnecessary administrative appeals.

 

The First District Court of Appeal recently ordered published its decision in Denny v. Arntz in which it ruled that statutory challenges to the sufficiency of ballot materials cannot be made post-election.  The ruling helpfully construes Elections Code section 16100 to exclude post-election challenges based on alleged flaws in the ballot question and voter information pamphlet.

Here, Denny filed a post-election challenge to Proposition A, which proposed a 30-year bond issuance of $425,000,000 to protect San Francisco’s waterfront, including the Embarcadero and associated seawall.  Voters approved the bond issuance by a resounding 82.5 percent.  Denny sought to overturn the results, claiming a myriad of faults with the ballot materials including, among others, that the voter’s digest and ballot question were not impartial and the ballot question did not conform to the format requirements of the Elections Code.  Denny alleged these faults amounted to “offense[s] against the elective franchise” within the meaning of Elections Code section 16100, subdivision (c).

The Court affirmed the trial court ruling sustaining San Francisco’s demurrer without leave to amend. Statutory challenges to the sufficiency of ballot materials must be pursued pre-election and filed during the 10-day public inspection window for the material at issue.  By contrast, section 16100 permits post-election challenges in limited situations, such as misconduct of a precinct board, illegal votes cast or bribery by a candidate, and only when such actions are demonstrated to have affected the election’s outcome.  Denny’s claims, which all rested on the ballot materials and voter guide, fell outside section 16100’s scope.

While dispensing with Denny’s statutorily based challenge, the Court recognized that Owens v. County of Los Angeles permits post-election challenges if ballot materials are so misleading or inaccurate as to implicate voters’ due process rights.  But the standard of proof in such a claim is much higher, and Denny alleged no such due process claim.

For fellow election law practitioners, Denny is helpful in delimiting post-election challenges permitted by section 16100, subdivision (c), and reinforcing that statutory claims regarding ballot materials and voter guides must be made pre-election or not at all.

The Second Appellate District of the California Court of Appeal held that arbitration clauses are unenforceable in continuing care retirement community tenancy agreements.

Harris and four other residents (“Harris”) live in the University Village Thousand Oaks (UVTO) continuing care and retirement community. Residents of UVTO must sign a contract before moving in. Pursuant to the contract, residents pay various monthly fees for a residence, care, and services. The contracts include the right to live in a specified living unit. The monthly fee is based upon the type of unit. Additionally, UVTO contracts require tenants to agree to binding arbitration to resolve any claims or disputes related to UVTO.

Harris sued UVTO alleging that UVTO made false representations about facility security, future increases in monthly fees, and what charges monthly fees cover. The trial court ordered arbitration of Harris’ claims over their objections. At arbitration the arbitrator issued an award for UVTO on all causes of action. Harris filed a motion with the trial court to vacate the award arguing that arbitration clauses are not enforceable in tenancy agreements in retirement communities. The trial court denied their motion and Harris appealed.

California Civil Code Section 1953(a)(4) prohibits the waiver of procedural litigation rights, such as requiring mandatory arbitration, in any dwelling lease or rental agreement. The trial court ruled that continuing care retirement community tenancy agreements are not standard residential leases. Therefore, Section 1953(a)(4) did not apply and the arbitration language in UVTO’s contract was enforceable.

Section 1953(a) states “Any provision of a lease or rental agreement of a dwelling” that requires tenants to waive their rights to engage in litigation is unenforceable. The California Civil Code chapter that includes Section 1953 is located within California Civil Code Section 1940. Section 1940(a) specifies the chapter’s provisions apply to “all persons who hire dwelling units located within this state including tenants, lessees, boarders, lodgers, and others, however denominated.” Section 1940(c) defines “dwelling unit” to mean a structure or part of a structure that is used as a home, residence, or sleeping place. The appeals court found that the language regarding “boarders” and “lodgers” applies to the board and lodging provisions of continuing care contracts.

Accordingly, the Court found that the plain language of these California Civil Code provisions means that tenants of continuing care retirement communities are entitled to the same rights as tenants under more common residential leases. The Court remanded the case for trial on Harris’ original claims.

Damage claims under 42 U.S.C. § 1983 – and really any personal injury claims — are broken down into two categories: economic and noneconomic damages. Pain and suffering, mental anguish, and loss of consortium are commonly sought in large numbers as noneconomic damages to enhance a plaintiff’s out-of-pocket damages. Prior to 1986, a plaintiff could recover all of her economic and noneconomic damages from one party, even if she pursued multiple defendants. Proposition 51 — the California Fair Responsibility Act — changed that. Codified at Civil Code 1431.2, it imposes several liability for noneconomic damages, while still allowing joint liability for economic damages. Several liability means each defendant can pay noneconomic damages only in proportion to his or her own fault.

This past week, the California Supreme Court in B.B. v. County of Los Angeles unanimously ruled that intentional tortfeasors cannot use Proposition 51 to reduce their liability for noneconomic damages. Resolving a split among California’s appellate courts, the Court ruled that Civil Code section 1431.2, subdivision (a), “does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.”

In the case, L.A. County sheriffs used deadly force against Darren Burley, an African American. The officers suspected Burley was under the influence of drugs, and he resisted arrest for assaulting a woman. During the struggle, Deputy David Aviles pressed one knee into the center of Burley’s back, and another onto the back of his head. The jury found Aviles committed battery by using unreasonable force against Burley. Ultimately, the jury found decedent 40% responsible, Deputy Aviles 20% responsible, and the remaining deputies negligent and collectively 40% responsible. The trial court later entered judgment against Aviles for the entire amount of noneconomic damages — $8 million, even though the jury found Aviles only 20% at fault — because he committed an intentional tort.

The Second District Court of Appeal reversed, ordering the judgment against Aviles reduced to his proportional fault. It relied on the language of Civil Code section 1431.2, which provides in relevant part: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.” The Court of Appeal applied the statute to intentional tortfeasors, allowing them to reduce their liability based on the negligent acts of others. The Second District expressly rejected a contrary holding by the Fourth District in Thomas v. Duggins Construction Co., Inc.

The Supreme Court reversed. In the opinion authored by Justice Chin, the Court ruled the statute’s application to cases decided “under principles of comparative fault” includes negligence and strict product liability, but not intentional torts. Detailing the common law pre-Proposition 51 and Code of Civil Procedure § 875, the Court concluded the law uniformly held that reduced liability under principles of comparative fault is not available to intentional tortfeasors. And relying on Thomas, the law post-Proposition 51 was no different. The Court rejected arguments this was inconsistent with Proposition 51’s language and created unfair results, as argued by amici curiae the Association of Southern California Defense Counsel and the Association of Defense Counsel of Northern California and Nevada. Instead, it held “[t]he preceding discussion demonstrates that California principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others,” and that section 1431.2, subdivision (a) just incorporates these principles of comparative fault. The Court found no inequity with treating intentional tortfeasors differently from negligent or strictly liable tortfeasors with respect to the doctrines of contributory negligence and contribution. Burley’s family may now recover the full amount of their noneconomic damages — it is not reduced by the proportion of fault attributed to Burley.

With last week’s decision, plaintiffs will be even more incentivized to press their State law claims against individual officers to seek the gamut of noneconomic damages. Those found guilty of an intentional tort cannot shift liability to negligent actors — they are instead on the hook for the full amount of noneconomic damages.

Justice Chin referenced in the opinion the “deeply troubling and difficult issues involving race and the use of police force,” but noted the opinion was limited to the scope of section 1431.2. The ruling, thus, “does not turn on either the decedent’s race or the fact that a law enforcement officer, rather than a civilian, committed the intentional tort.” In his concurrence, Justice Liu hit these issues head-on, addressing the history of civil rights laws, his critique of the federal qualified immunity doctrine, and calling for relief for “citizens who continue to bear the cruel weight of racism’s stubborn legacy.” In his words, “[a] wrongful death judgment with substantial damages is one way of affirming the worth and dignity of Darren Burley’s life, and I join today’s opinion. But the racial dimensions of this case should not escape our notice.” Justice Liu’s point-by-point analysis of the current civil rights legal landscape is certainly a call for action, and may well result in a Legislative response, whether in development of additional remedies, addressing shortcomings in the law as Justice Liu sees it, or stronger legislative oversight of police. These are all evolving issues, and we will continue to keep you updated on developments.