Municipal Law

The reasons for the recall are listed by Scott Beard, the proponent, Wendy McCammack’s appointment to the City of San Bernardino Planning Commission, Rialto-based developer, and Seventh Ward resident:

The grounds for the recall are as follows: Mr. Penman is the duly elected City Attorney, and as such is accountable for the actions of that office and of his subordinates. Mr. Penman has been derelict in his official duties by failing to properly enforce the law regarding personal use of public property by members of the Common Council. In addition, Mr. Penman’s office’s selective enforcement of City codes and his failure to timely update and codify city codes, ordinances, and other matters lawfully passed by the City Council has created confusion and insecurity in the City’s residents and businesses regarding accuracy of the City’s published law.

Council Member Virginia Marquez, First Ward

The reasons listed for the recall in the Notice of Intention are listed by the proponent, Christian Fernando Flores (who was reported in the Sun as a student at California State University, San Bernardino):

The grounds for the recall are as follows: Council Member Marquez was elected to office
in November of 2009 and has since that time has failed to protect the health, safety, and welfare
of the residents of the City of San Bernardino and demonstrated dereliction to the duties of her
elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible
program leading to the misuse of the City’s General Fund. Council Member Marquez’s actions
and failures to act, have propelled the City of San Bernardino into financial crisis, and have led
to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City. The City
of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of
the bankruptcy and its proceedings.

Further, Council Member Marquez has violated the public trust by repeatedly failing to
reach consensus with the other members of the San Bernardino City Council on basic issues of
City finances, and ignored advice of the City’s Executive Staff for the previous two years
regarding financial concerns. Her actions have led to massive reductions in City services and
police and fire personnel, causing an increase in crime rates, businesses leaving the City, and
contributed to overall blight within the City.

Council Member Fred Shorret:

The proponent of the recall against Fred Shorett, 4th Ward Council Member, Stephen T. Dawson, who is the chairperson of the United Transportation Union, states:

The grounds for the recall are as follows: Council Member Shorett was elected to office in March of 2009 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible program leading to the misuse of the City’s General Fund. Council Member Shorett’s actions and failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Council Member Shorett has violated the public trust by repeatedly failing to reach consensus with the other members of the San Bernardino City Council on basic issues of City finances which would allow the City of San Bernardino to emerge from the bankruptcy proceedings and begin revival of its economy. The City of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of the bankruptcy and its proceedings.

Mayor Patrick J. Morris:

Scott Beard, also the proponent of the recall against City Attorney James F. Penman, gives these reasons:

The grounds for the recall are as follows: Mayor Morris was elected to office in February of 2006 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by failing to veto fiscally irresponsible votes and fiscally irresponsible programs leading to the misuse of the City’s General Fund. Mayor Morris’s [sic] failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Mayor Morris has violated the public trust by repeatedly failing to facilitate consensus with the members of the San Bernardino City Council on basic issues of City finances, and ignored advice of the City’s Executive Staff for the previous two years regarding financial concerns. His action and inaction have led to massive reductions in City services and police and fire personnel, causing an increase in crime rates, businesses leaving the City, and contributed to overall blight within the City.

The original PDFs, which are not the embedded redacted versions you see here, have some metadata that explains a little about the origin of the PDFs that were obtained. The Notice of Intent involving Mayor Patrick J. Morris was created on April 28, 2013 at 10:04:50 PM, with the application being Microsoft Word 2010, with “Michael” listed as the author. The Notice of Intent to Virginia Marquez was titled C:\My Files000 — SanBernardinoMatter\NOI.2013.1stWard(Marquez).wpd, also authored by “Michael.” It was created on April 28, 2013 at 2:19:17 PM. The original file was on WordPerfect (as you can see by the extension), but the PDF was created by Acrobat Distiller 9.0.0. The Fred Shorret document was created by Microsoft Word 2010, also authored by “Michael.” It was created on April 28, 2013 at 3:40:59. The City Attorney James F. Penman document was also on Word 2010, on April 28, 2013, at 10:00:13.

What does this metadata mean? That whoever created the PDF (but not necessarily the author of the petitions), was named Michael, and that at least one of the documents was created on WordPerfect. WordPerfect is, or was, largely used by attorneys. No conclusions can be drawn from this metadata. The Michael may refer to Michael McKinney, the Orange County-based publicist for the recall proponents. It could be someone else entirely.

Unfortunately, the petitions to recall Second Ward Council Member Robert Jenkins, Third Ward Council Member John Valdivia, Fifth Ward Council Member Chas Kelley, Sixth Ward Council Member and Mayoral Candidate Rikke Van Johnson and Seventh Ward Council Member Wendy McCammack were unavailable.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104,

Redlands, CA 92374

T: (909) 708-6055

Filed under Bankruptcy, Charter, City Attorney, City Clerk, City Council, City of Los Angeles, City of San Bernardino, City Treasurer, Elections, Mayor, Municipal Law, San Bernardino, San Bernardino City Attorney's Office, San Bernardino City Charter, San Bernardino City Clerk, San Bernardino Municipal Code, State of California Tagged with Charter of the City of San Bernardino, Christian Fernando Flores, City of San Bernardino, Fred Shorett, James F. Penman, John Valdivia, Michael McKinney, Patrick J. Morris, Recall, Rikke Van Johnson, Robert Jenkins, San Bernardino, Scott Beard, Stephen T. Dawson, Virginia Marquez, Wendy McCammack

The Recall Process Under the Charter of the City of San Bernardino

April 29, 2013 1 Comment

The current Charter of the City of San Bernardino, Article VII is entitled “Initiative, Referendum and Recall.” Section 122 of the Charter reads (with annotations):

Section 122. The Recall. Proceedings may be commenced for recall of the

holder of any elective office of this City and the election of a successor of the

holder sought to be removed by the service, filing and publication of a notice of

intention to circulate a recall petition. Such proceedings may not be commenced

against the holder of an office unless, at the time of commencement, the holder

has held office for at least ninety days and no recall petition has been filed against

such holder within the preceding six months. A petition demanding the recall of the

officer sought to be recalled shall be submitted to the City Clerk. The petition shall

be signed by not less than fifteen percent (15%) of the voters of the City, or in the

case of a City Council Member elected by ward twenty-five percent (25%) of the

voters of that ward, according to the County Clerk’s last official report of

registration to the Secretary of State. No signature may be affixed to the petition

until the proponents have served, filed and published a notice of intention to

circulate a recall petition, containing the name of the officer sought to be recalled

and the title of his/her office, a statement in not more than 500 words of the

grounds on which the recall is sought, and the name and address of at least one,

but not more than five proponents. The notice of intention shall be served,

personally or by certified mail, on the officer sought to be recalled, and a copy

thereof with a certificate of the time and manner of service shall be filed with the

clerk of the legislative body. Within seven (7) days after the filing of the notice of

intention, the officer sought to be recalled may file with the City Clerk an answer in

not more than 500 words to the statement of the proponents and if an answer is

filed, shall serve a copy thereof, personally or by certified mail, on one of the

proponents named in the notice of intention. At the time the proponents publish

the notice and statement referred to above, the officer sought to be recalled may

have the answer published at his/her expense. If the answer is to be published the

officer shall file with the City Clerk at the time the answer is filed a statement

declaring his/her intent that the answer be published. The statement and answer

are intended solely for the information of the voters and no insufficiency in the form

or substance thereof shall affect the validity of the election or proceedings. The

notice and statement as referred to above, and the answer, if it is to be published

shall be published at least once in a newspaper of general circulation, as described

in Sections 6000 to 6066 of the Government Code, adjudicated as such.

Seven (7) days after the publication of the notice, statement and answer, if it

is to be published, the recall petition may be circulated and signed. The petition

shall bear a copy of the notice of intention, statement and answer, if any. If the

officer has not answered, the petition shall so state. Signatures shall be secured

and the petition filed within ninety (90) days from the filing of the notice of intention.

If such petition is not filed within the time permitted by this section, the same shall

be void for all purposes. The signatures to the petition need not all be appended to

one paper; but each signer shall add to his/her signature his/her place of

residence, giving the street and such other identification as may be required by the

registration law. One of the signers of each such paper shall make oath before an

officer qualified to administer oaths, that the statements therein made are true, and

that each signature to the paper appended, is the genuine signature of the person

whose name purports to be thereunto subscribed. Within thirty (30) days after the

date of filing such petition the City Clerk shall examine and ascertain whether or

not said petition is signed by the requisite number of qualified electors and, if

necessary, the Council shall allow extra help for that purpose, and the City Clerk

shall attach to said petition a certificate showing the result of said examination. If,

by the City Clerk’s certificate, the number of signatures on the petition is shown to

be insufficient, it shall be returned forthwith by the Clerk to the filer(s) thereof who

shall have an additional thirty (30) days from the date the petition is returned to

them by the Clerk to obtain the required number of signatures. The City Clerk shall,

within thirty (30) days after such additional thirty (30) day period to obtain

additional signatures, make like examination of said petition, and, if his/her

certificate shall show the same to be insufficient it shall be void for all purposes. If

the petition shall be found to be sufficient, the City Clerk shall submit the same to

the Council without delay and the Council shall thereupon order and fix a date for

holding said election, not less than fifty (50) days, nor more than seventy (70) days

from the date of the City Clerk’s certificate to the Council that a sufficient petition is

filed.

The ballots used when voting upon said proposed recall shall contain the

words “shall (title of office and the name of the person against whom the recall is

filed) be recalled?” and the words “yes” and “no.”

The Council and the City Clerk shall make, or cause to be made, publication

of notice and all arrangements for conducting, returning and declaring the results

of such election in the same manner as other City elections.

Qualified candidates to succeed the person against whom the recall is filed,

shall be listed on the ballot, except that the incumbent shall not be eligible to

succeed himself/herself in any such recall election.

In any such removal election, if a majority of the votes cast is for “yes” on

the question of whether or not the incumbent should be recalled, the candidate

receiving the highest number of votes shall be declared elected. The incumbent

shall thereupon be deemed removed from the office upon qualification of his/her

successor. In case the party who received the highest number of votes should fail

to qualify within ten (10) days after receiving notification of election, the office shall

be deemed vacant. The successor of any officer so removed shall hold office

during the unexpired term of his/her predecessor. (Effective March 16, 2005)

Any elected official in the City of San Bernardino can be recalled using this procedure. The limitations are stated above in which the office holder must be in office at least 90 days, and no recall petition has been filed against the office holder in the preceding six months. The elected officials of the City of San Bernardino are the Mayor, the seven members of the Common Council, the City Clerk, the City Treasurer, and the City Attorney.

The Municipal Code further gives the procedure for recall elections as follows:

2.56.160 Recall elections.

A recall election to remove an elected officer pursuant to Charter Section

122 shall be ordered, held and conducted and the result thereof made known and

declared in the same manner provided in this chapter for municipal primary and

general elections except as follows:

A. Time for Obtaining Signatures. Nomination papers shall be issued and

verification deputies appointed to obtain signatures to nomination papers of

any candidate at any time not earlier than the thirty-fifth day nor later than

five p.m. on the twenty-ninth day before the recall election.

B. Date filed with City Clerk. All nomination papers shall be filed with the City

Clerk not later than five p.m. on the twenty-ninth day before the recall

election.

C. Not earlier than the thirty-fifth day, nor later than the tenth day before a recall

election, the City Clerk shall publish a notice of the election at least once in

one or more newspapers published and circulated in the City. The notice

shall be headed “Notice of Election,” and shall contain a statement of:

1. The time of the election;

2. The offices to be filled, specifying full term or short term, as the case

may be;

3. The hours the polls will be open.

D. Absentee Ballots. Not earlier than the twenty-sixth day, nor later than the

seventh day before a recall election, any voter entitled to vote by absent

voter ballot as provided in Elections Code Section 14620 [See now §3003],

may file with the City Clerk either in person or by mail, his written application

for an absent voter’s ballot. The application shall be signed by the applicant,

shall show his place of residence, and shall make clear to the City Clerk the

applicant’s right to a ballot.

Applications received by the City Clerk hereunder on or after the

fortieth day but prior to the twenty-sixth day before election shall not be

returned to the sender, but shall be held by the City Clerk and processed by

him following the twenty-sixth day prior to election in the same manner as

if received at that time.

(Ord. 3601 (part), 1976; Ord. 2048 §10, 1954.

A: 1255 W. Colton Ave. Suite 104,

Redlands, CA 92374

T: (909) 708-6055

Filed under Charter, City Attorney, City Clerk, City Council, City of Los Angeles, City of San Bernardino, City Treasurer, Los Angeles County, Mayor, Municipal Law, San Bernardino, San Bernardino City Attorney's Office, San Bernardino City Charter, San Bernardino City Clerk, San Bernardino Municipal Code, State of California Tagged with Charter of the City of San Bernardino, City of San Bernardino, San Bernardino

Legal word of the day: Prolix

March 5, 2013 Leave a comment

Sometimes, you need a five dollar word instead of a five cent word. The word is “prolix.” Prolixity, according to Black’s Law Dictionary, Sixth Edition is the “unnecessary and superfluous statement of facts in pleading or in evidence.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court from a sovereign citizen, what I called a constitutionalists in the past. Here is a restatement of the Complaint, without the actual prolixity:

Plaintiff claims the City is a corporation or political division of the State of California. Complaint, Pg. 2, Para. 4. Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City” Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino. Complaint, Pg. 9, Para. 13. However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property. Complaint, Pg. 9, Para. 15. Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.” Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.” Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law. Complaint, Pgs. 10-11, Para.18. Plaintiff also claims that the defendants have failed to swear an oath. Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.” Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.” Complaint, Pg. 17, Para.29. Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.” Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.” Complaint, Pg. 19, Para. 35. The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.” Id., Pg. 19, Para. 36. The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985. Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section. Complaint, Pg. 21, Para. 42. Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land. Id. at Para. 43. The individual defendants conspired in the same manner as in the previous cause of action. Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken. Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.” Complaint, Pg. 22, Para. 48. The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.” Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action. Complaint, Pgs. 23-24, Para. 53. Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.” Id., Pg. 24. Para. 55. Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title. The defendants never made a response, thus defaulting on the jurisdictional challenge. Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810. Complaint, Pgs. 25-6, Para.62. The City had a duty to know the actual founding date and change the claimed founding date to 1905. Id., Pg. 26, Para. 64. Plaintiff again claims that the individual defendants conspired. Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office. Complaint, Pg. 27, Para. 68. Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.” Id. at Para. 69. The individual defendants had a duty to swear to the oath before they took actions. Id. at Para. 70. The individual defendants then conspired in the same way alleged in the first cause of action. Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.” Complaint, Pg. 30, Para. 80.

I believe I attacked the complaint using either this case, or a similar case, which taught me the word prolixity in context of F.R.C.P. Rule 8:

A heightened pleading standard is not an invitation to disregard’s Rule 8‘s requirement of simplicity, directness, and clarity. The “particularity” requirement of a heightened pleading standard, requiring “nonconclusory allegations containing evidence of unlawful intent,” as opposed to “bare allegations of improper purpose,” has among its purposes the avoidance of unnecessary discovery. Branch, 937 F.2d at 1386. If the pleading contains prolix evidentiary averments, largely irrelevant or of slight relevance, rather than clear and concise averments stating which defendants are liable to plaintiffs for which wrongs, based on the evidence, then this purpose is defeated. Only by months or years of discovery and motions can each defendant find out what he is being sued for. The expense and burden of such litigation promotes settlements based on the anticipated litigation expense rather than protecting immunity from suit. Judgment and discretion must be applied by district judges to determine when a pleading subject to a heightened pleading standard has violated Rule 8, but there is nothing unusual about a standard requiring judges to exercise judgment and discretion. We have affirmed dismissal with prejudice for failure to obey a court order to file a short and plain statement of the claim as required by Rule 8, even where the heightened standard of pleading under Rule 9 applied. Schmidt v. Herrmann, 614 F.2d at 1223-24. In Schmidt, as in the case at bar, the very prolixity of the complaint made it difficult to determine just what circumstances were supposed to have given rise to the various causes of action. McHenry v. Renne (9th Cir. 1996) 84 F.3d 1172, 1178.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

Filed under 42 United States Code section 1983, Civil Procedure, Civil Rights, Federal Court, Land Use, Law Practice Management, Legal Research, Municipal Law, Real Property Law Tagged with Constitutionalism, F.R.C.P. Rule 8, prolix

Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law (and you’ll be fined $2 before P&As).

January 17, 2013 Leave a comment

When I was a Deputy City Attorney for the City of San Bernardino, I never once saw this section enforced, with its circa 1964 $2 fine:

10.16.140 Removal of ignition key.
A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.
B. Any person convicted under this section shall be punished by a fine of not less
nor more than two dollars; and such person shall not be granted probation by
the court, nor shall the court suspend the execution of the sentence imposed
upon such person.
(Ord. MC-460, 5-13-85; Ord.3880 §2 (part), 1980; Ord.2613,1964; Ord. 1652 Art. 4 §14, 1941.)

What’s the background on this law?

First, the 1941 ordinance, Ordinance 1652 is available online. The ordinance repeals a variety of ordinances and adopts an overarching scheme for regulating traffic in the City of San Bernardino. Difficulty? Article 4 has no section 14. Another added difficulty, is that I didn’t see any similar language anywhere in the text of the ordinance. However, the language (especially the two dollars) sounds archaic.

The Municipal Code annotation is incorrect, because the section does not come from Ordinance 1652 as originally adopted. Ordinance 2613 from 1964 amended Ordinance 1652 by adding section 14. There is no legislative history or findings in the ordinance itself (and there are no minutes online), which reads in pertinent part:

SECTION FOURTEEN: No person having charge or control of a
motor vehicle shall allow such vehicle to stand upon any street,
alley or parking lot upon which there is no attendant, when such
motor vehicle is unattended, without first locking the ignition
of said vehicle and removing the ignition key from such vehicle.
Any person convicted under this Section shall be punished
by a fine of not less nor more than Two Dollars ($ 2. 00); and such
person shall not be granted probation by the Court, nor shall the
Court suspend the execution of the sentence imposed upon such
person.

Ordinance 3880 (November 20, 1979) (not 1980 as shown in the annotations), Section 2 amended Section 14 to be titled SECTION FOURTEEN: Removal of Ignition Key.

The ordinance was codified in 1980, I believe, but I have not seen that ordinance. It divided it into section (a) and (b), capitalization was changed, as was the reference to ($2.00) in section (b).

MC-460, Section 120, enacted May 15, 1985, amended the codified version, 10.16.140(a) to read:

A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.

The backup from the City Attorney’s Office included removing archaic laws, but apparently, section B remained.

Item 7i on the July 2, 2012 agenda included a re-adoption of this section as part of a cleanup regarding reorganized departments, however, upon watching the video of that meeting (there does not appear to be minutes available online), it was tabled on a 7-0 motion by Council Member Wendy J. McCammack because of the need for further reorganization by the City Manager.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

Filed under City Attorney, City Clerk, City of San Bernardino, Code Enforcement, Municipal Law, Parking, Parking, San Bernardino City Attorney's Office, San Bernardino City Clerk, San Bernardino Mayor, San Bernardino Municipal Code, San Bernardino Superior Court Tagged with Ignition Key, San Bernardino Municipal Code section 10.16.140

How To Use A Court Interpreter in San Bernardino Superior Court

January 10, 2013 1 Comment

As long-time readers know, I am a member of the Hon. Joseph B. Campbell American Inn of Court. Last night was a monthly meeting, and the program was one of the best since I became a member in the earlier part of the last decade. The program included a skit that showed how interpreters were used in a criminal trial, both with American Sign Language interpreters and Spanish interpreters. When I was a Deputy City Attorney for the City of San Bernardino, the court interpreters were invaluable in communicating with primarily monolingual Spanish speakers in code enforcement cases. While the performers in the skit provided a great deal of information, here is some information derived from the hand outs:

How To Use a Court Interpreter

The interpreter is your voice in court.

So, it is important to . . .

Listen carefully to the interpreter.

Wait for the interpreter to finish talking before your answer.

Do not speak in English, even if you speak a little. It is confusing for the judge.

Do not interrupt, even if someone in court says something bad about you. You will get a chance to speak.

Take notes. If someone says something untrue, write it down. Then when it is your turn to speak, you can tell the judge your side.

Source: How to Use a Court Interpreter, Superior Court of California, County of San Bernardino, pamphlet in English and Spanish, undated.

Additionally, a handout with the title of the presentation, “Lost in Translation” dated January 2013 says:

Our guest Spanish Language Interpreters ask that we, as attorneys and judicial officers, always keep the following things in mind . . .

- Don’t speak fast.

- Don’t use humor or figures of speech. [Note: The examples given were, "you're really in a pickle" or "bird of a different feather"]

- Don’t give the jury instruction on interpreters or modify it.

[Note: The interpreter referred to CALJIC Instruction 121 which reads:

"Some testimony may be given in <insert name or description of language other than English>. An interpreter will provide a translation for you at the time that the testimony is given. You must rely on the translation provided by the interpreter, even if you understand the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note and giving it to the (clerk/bailiff)." The notes state: "The committee recommends that this instruction be given whenever testimony will be received with the assistance of an interpreter, though no case has held that the court has a sua sponte duty to give the instruction. The instruction may be given at the beginning of the case, when the person requiring translation testifies, or both, at the court's discretion. If a transcript of a tape in a foreign language will be used, the court may modify this instruction. (See Ninth Circuit Manual of Model Jury Instructions, Criminal Cases, Instruction No. 2.8 (2003).) If the court chooses, the instruction may also be modified and given again at the end of the case, with all other instructions."

The interpreter presenting strongly objected to the part of the instruction which states: "If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note" undermined the certified interpreter's training and experience and emphasized that the instruction was not mandatory, and that the judicial officer could leave that objectionable line out of the instruction.]

- Always speak directly. [Note: attorneys should speak to the witness, and the witness should answer the attorney. Do not speak to the interpreter directly].

- Beware of false cognates.

- Spanish is 30% longer than English.

- The Only person who never stops speaking during proceedings is the interpreter.

The American Sign Language interpreters said that they are required to provide a translation that included emotions such as shouting or sarcasm. The Spanish language interpreters said that it was a matter of style for them to provide the translation in the same tone or volume.

Thank you to the leaders of the Inn for providing such an educational program, particularly Judge John Pacheco and Donna Connally, and to the court interpreters that helped us understand the process.

Address: 1255 W. Colton Ave. Suite 104

Redlands, CA 92374

Website: http://michaelreiterlaw.com

Filed under Code Enforcement, Criminal Code Enforcement, Criminal Law, Municipal Law Tagged with Interpreter, Michael Reiter Attorney at Law

City of Corona City Attorney – Now In-House

January 9, 2013 Leave a comment

People are searching to find out about the City Attorney of the City of Corona. While the person did not change, recently, the form of City Attorney changed from outside counsel to an in-house City Attorney and an in-house City Attorney’s Office. The Press-Enterprise reported on December 31, 2012 that the City Attorney would be moving in-house. The story says

The new legal team includes [Dean] Derleth, a separate full-time attorney, a part-time attorney, a paralegal and a clerk.

A search of the State Bar website shows three in-house attorneys with the City of Corona at the time of this posting, City Attorney Dean Derleth, John Higginbotham and Jamie Raymond. All, prior to the creation of the in-house positions, were attorneys for Riverside municipal law firm Best Best & Krieger LLP. When I was a contract neutral and unbiased hearing officer for the City of Colton on an as-needed basis from May 19, 2011 through June 30, 2012, Dean Dertleth was the City Attorney. John Higginbotham was the Deputy City Attorney for the City of Colton representing City staff in the hearing. I have never worked with Jamie Raymond in any capacity.

By Michael Reiter, Attorney at Law.

Address: 1255 W. Colton Ave. Suite 104

Redlands, CA 92374

Website: http://michaelreiterlaw.com

Filed under City Attorney, Municipal Law

California Personal Injury Litigation and Proof of Service for Electronic Service

January 7, 2013 Leave a comment

Electronic service is a cost-effective manner of service, whether done in Federal cases with CM/ECF, or in California superior courts by stipulation, or in conjunction with electronic filing. For California superior court cases, the Judicial Council has created an optional proof of service for electronic service, FORM POS-050/EFS-050, which needs to be used in conjunction with Form POS-o50(P). However, if you follow the requirements of California Rules of Court Rule 2.251(g) the practitioner does not need to use the optional Judicial Council form.

California Rules of Court Rule 2.251(g) requires the following information:

(1)Proof of electronic service may be by any of the methods provided in Code of Civil Procedure section 1013a, except that the proof of service must state:

(A)The electronic service address of the person making the service, in addition to that person’s residence or business address;

(B)The date and time of the electronic service, instead of the date and place of deposit in the mail;

(C)The name and electronic service address of the person served, in place of that person’s name and address as shown on the envelope; and

(D)That the document was served electronically, in place of the statement that the envelope was sealed and deposited in the mail with postage fully prepaid.

(2)Proof of electronic service may be in electronic form and may be filed electronically with the court.

Address: 1255 W. Colton Ave. Suite 104

Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Filed under Civil Procedure, Dangerous Dogs, Evidence, Motor Vehicle Accidents, Municipal Law, Park Accident, Pedestrian Accident, Personal Injury Law, Personal Property Law, Proof of Service, Requests for Admission, San Bernardino County Incorporated Cities and Towns Tagged with Electronic Service, Michael Reiter Attorney at Law, Personal Injury, Proof of Service

The Results of the San Bernardino County California Election November 6, 2012

November 7, 2012 Leave a comment

Over on sbdpolitics.com, the results, as of about 6:05 a.m. on November 7, 2012, of the election as it pertains to San Bernardino County, with a focus on the City of San Bernardino and surrounding cities.
Here is the abbreviated version: Gloria Negrete McLeod over Joe Baca in the 35th; Gary Miller over Bob Dutton in the 31st; Cheryl R. Brown over Joe Baca Jr. in Assembly District 47; Gloria Macias Harrison, John Longville, Nick Zumbos, and Kathleen Henry for San Bernardino Community College Board of Trustees; James Ramos over Neil Derry in the Third Supervisorial District, Robert Lovingood over Rick Roelle in the First Supervisorial District; City of Highland Council unchanged, Pete Aguilar reelected in Redlands, Measure Q beats Measure R, and Measure N passes handily.

Filed under County of San Bernardino, Elections, Municipal Law Tagged with Elections 2012

Did the San Bernardino Unified School District Violate Education Code Section 7054 Regarding Advocacy For Measure N on The November 6, 2012 Ballot?

October 22, 2012 Leave a comment

Measure N is the San Bernardino City Unified School District’s bond measure is to sell $250,000,000 (250 million dollars or a quarter billion dollars) in aggregate principal of bonds with a maturity not to exceed twenty-five years. The ballot statement and resolution do not give the total cost to the bond issue including principal and interest. The District’s estimate is that it will cost property owners $34 per year for each $100,000 of assessed value to pay the principal and interest on the bonds (which is in addition to any existing bonds). It was placed on the ballot by the Board of Education on August 7, 2012 by a six to one vote. The members voting for were Barbara Flores, Mike Gallo, Margaret Hill, Bobbie Perong, Lynda Savage, Judi Penman. Danny Tillman voted no. The measure requires a 55 percent “yes” vote to pass per Proposition 39 (2000) and Education Code section 15264. In connection with Measure N, the San Bernardino Unified School District has sent mass mailings, including this piece:

California Education Code section 7054 reads, as of today:

(a) No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.

(b) Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met:

(1) The informational activities are otherwise authorized by the Constitution or laws of this state.

(2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.

(c) A violation of this section shall be a misdemeanor or felony punishable by imprisonment in a county jail not exceeding one year or by a fine not exceeding one thousand dollars ($1,000), or by both, or imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months, or two or three years.

Therefore, a school district cannot use funds for the purpose of urging the support or defeat of any ballot measure or candidate. California Education Code section 7054(a). However, a limitation to California Education Code seciton 7054(a) is that a school district may expend public resources to provide information to the public about the possible effects of any bond issue if two conditions are met. The informational activities are otherwise allowed by law, and the “information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.” California Education Code section 7054(b). The violation of this section is a wobbler, punishable as a misdemeanor or felony. California Education Code section 7054(b).

In the resolution of August 7, 2012, the San Bernardino Unified School District Board of Directors made this finding:

WHEREAS, the District needs to install lighting, replace and fix fences and update security
alarms to keep students safe during and after school and to protect our schools from gang
members who break into schools, vandalize and steal equipment; . . .

The front of the mailer states “From the Desk of School District Police Chief Joseph Paulino”

The letter says

Dear Neighbor:

As School District Police Chief, my job is to keep our students and school sites safe.

I also seek to protect our schools from intruders who break into schools, vandalize, steal school equipment and tag walls with graffiti. Unfortunately, many of our schools have outdated security alarms, inadequate fences and limited lighting.

Measure N is on your local ballot. Among the priorities included in Measure N are the following safety and security upgrades to San Bernardino and Highland schools:

Maintain safe, clean clasrooms

Repair/replace leaky roofs

Remove asbestos and other hazardous materials

Repair/replace fire alarms, security and electrical systems

Replace old playground equipment with new, safer equipment

Remember to vote on Measure N.

Sincerely,

/s/

Chief Joseph Paulino

San Bernardino School District

Police Department

The Measure does not give an actual project list (meaning, x amount is going to do x at Cajon High School on x date). However, there is a more generic project list, and this is the relevant section:

School Safety and Energy Efficiency School Projects
Goal and Purpose: The District must protect its schools from gang members who break
into schools, vandalize and steal equipment and tag walls with graffiti. Unless the District
replaces outdated security alarms, inadequate fences and limited safety lighting, it can’t
keep them out. To keep students safe during and after school, projects such as proper
lighting, fences and security alarms are needed:
Student Safety
• Repair and replace security and electrical systems, such as security lighting, fencing,
gates and classroom door locks.
• Upgrade fire alarm systems including fire safety equipment and sprinklers to make
students safe in the event of an emergency.
• Upgrade schools to meet handicap accessibility requirements.
• Remove hazardous materials like asbestos and lead paint from older school sites.
• Increase after-school program space to reduce juvenile violence.

The headline’s question is whether the District’s statement has violated California Education Code section 7055 regarding advocacy for Measure N. The California Supreme Court decision in Stanson v. Mott (1976) 17 Cal.3d 206 is important to consider in such cases. The Court ruled:

On June 4, 1974, California voters approved a $250 million bond issue to provide funds for the future acquisition of park land and recreational and historical facilities by state and municipal authorities. One day before the election, plaintiff Sam Stanson filed the present taxpayer suit, alleging that defendant William Penn Mott, Jr., director of the California Department of Parks and Recreation (department), had authorized the department to expend more than $5,000 of public funds to promote the passage of the bond issue. Asserting the illegality of such use of public funds, plaintiff sought a judgment that would require Mott personally to repay the funds to the state treasury and any other appropriate relief.

. . .

As we explain, past decisions in both California and our sister states establish that, at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign; in the present case, no legislative provision accorded the Department of Parks and Recreation such authorization. Although the department did possess statutory authority to disseminate ‘information’ to the public relating to the bond election, the department, in fulfilling this informational role, was obligated to provide a fair presentation of the relevant facts. Since plaintiff specifically alleged that public funds were expended for ‘promotional,’ rather then ‘informational,’ purposes, his complaint stated a valid cause of action, and the trial court erred in sustaining defendant’s demurrer. If plaintiff proves the allegations of his complaint at trial, he will be entitled to at least a declaratory judgment that such expenditure of public funds was improper, and, perhaps, to injunctive relief as well.

Whether defendant Mott may be held personally liable for the funds which have already been spent presents a more difficult question. Although early California decisions held public officials strictly liable for any unauthorized expenditure of public funds, even when such expenses were incurred in good faith, subsequent legislation has considerably narrowed the circumstances under which public employees are generally held personally accountable for resultant losses. In accommodating the policy underlying this legislative development with the long-recognized public interest in protecting the public treasury from potential mismanagement or abuse, we conclude that defendant may be held personally liable to repay expended funds only if he failed to exercise due care in authorizing the expenditure of the funds. Stanson v. Mott (1976) 17 Cal.3d 206, 209-210.

What is the difference between promotional and informational? Stanson v. Mott says it’s a fine line, but in the case of Mr. Stanson v. Mr. Mott, left it to the trial court to decide:

Problems may arise, of course, in attempting to distinguish improper ‘campaign’ expenditures from proper ‘informational’ activities. With respect to some activities, the distinction is rather clear; thus, the use of public funds to purchase such items as bumper stickers, posters, advertising ‘floats,’ or television and radio ‘spots’ unquestionably constitutes improper campaign activity (see, e.g., Mines v. Del Valle, supra, 201 Cal. at p. 276, 257 P. 530; Porter v. Tiffany, supra, 502 P.2d at p. 1386), as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. (See 51 Ops.Cal.Atty.Gen. 190, 194 (1968); Stern v. Kramersky, supra, 375 N.Y.S.2d 235.) On the other hand, it is generally accepted that a public agency pursues a proper ‘informational’ role when it simply gives a ‘fair presentation of the facts’ in response to a citizen’s request for information (see Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677; Stern v. Kramarsky, supra, 375 N.Y.S.2d 235, 239—240; 51 Ops.Cal.Atty.Gen. 190, 193 (1968)) or, when requested by a public or private organization, it authorizes as agency employee to present the department’s view of a ballot proposal at a meeting of such organization. (See Ed.Code, s 1073;cf. Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677.)

Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a ‘fair presentation of facts’ relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to ‘Vote Yes,’ have nevertheless been found to constitute improper campaign literature. (See 35 Ops.Cal.Atty.Gen. 112 (1960); 51 Ops.Cal.Atty.Gen. 190 (1968); cf. 42 Ops.Cal.Atty.Gen. 25, 27 (1964).) In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case. Stanson v. Mott (1976) 17 Cal.3d 206, 221-222.

The question, then, is this presentation “fair and impartial? The mailer does not say Vote for Measure N, (it says “vote on Mesaure N”). On the other hand, it says that the Chief wants to keep students and school sites safe, and protect schools from intruders, and that many schools have outdated security alarms, inadequate fences and limited lighting. It then says that Measure N is on the ballot. It then says that the priorities included in Measure N are the following safety and security upgrades. Arguably, each of these things are true. However, someone may argue that in placement of the needs and the solutions to that need together, the San Bernardino Unified School District has gone from a strictly informational piece about Measure N to advocating for voters to vote for Measure N. Further, the style of the mailer looks like a campaign advocacy piece, showing the picture of the Chief in his uniform, showing stock photos of alarms and a fire pull box, and a drug free, gun free, school zone sign.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

Filed under Bonded Indebtedness, Elections, Municipal Law, San Bernardino, San Bernardino City Unified School District Tagged with election-2012, Measure N, San Bernardino City Unified School District

Garage Sales and Yard Sales (and permits) in the Cities of Highland, Colton, Rialto, San Bernardino, Grand Terrace, Loma Linda, Redlands, Yucaipa and unincorporated San Bernardino County

October 17, 2012 Leave a comment

People want to know how to get yard sale and garage sale permits in the East Valley, and they find this site because of this article about the City of San Bernardino’s yard sale ordinance. Therefore, here is a chart to give a basic (but not complete) understanding of the rules and regulations regarding yard sales in the East Valley, here defined as the Cities of Colton, Rialto, San Bernardino, Grand Terrace, Loma Linda, Highland, Redlands, Yucaipa and unincorporated San Bernardino County such as Muscoy, Mentone, Oak Glen, Devore, Arrowhead Suburban Farms, Devore Heights, and Del Rosa. Per the City Clerk of Loma Linda, there is no yard sale ordinance in the City of Loma Linda as of 10/17/2012. Note also that homeowners associations (HOAs) probably have additional restrictions (particularly East Highlands Ranch) which you should look into.

City/Unincorporated	Permit Required	Permit Cost	Where?	Duration
Colton	Yes	$2, except charity, nonprofit, religious	Finance Department	3 d, 8am-8pm
Grand Terrace	Yes (Except Exemptions)	$5	Finance Department	3 d, 8am-8pm
Highland	Yes	$7	Finance Department	3 d, 8am-8pm
Loma Linda	N/A	N/A	N/A	N/A
Redlands	Yes	$2.50	Treasurer	3 d or 2d each over consecutive weekends; 8 am-8pm
Rialto	Yes (Except Exemptions)	$5.40	Finance Department	3d, daylight
San Bernardino	No (anomoly regarding Estate Sales)	N/A	N/A	3d, daylight
Yucaipa	After 1st sale	$2.50 (sales 2-4)	Front Desk, City Hall	3d, 8am-8 pm
Unincorporated San Bernardino County	No (See SBCC section 84.25.030(e) unless exceed standards of 84.10.	N/A	N/A	3d, 8am-5 pm

City/Unincorporated	Frequency	Display	Signage	Exemptions	Ordinance	Codified At	Violation
Colton	1/quarter	Not in PROW	During, onsite	Court sales	Ord 1483 (1975); 0-3-1989 (1989)	Colton Municipal Code Chapter 5.45	Misdemeanor
Grand Terrace	2/yr	Not in PROW	2 onsite, unlit, 4ft area, 5 day limit, not on PROW, trees, fences, utility poles, removed at end	Court sales, charitable, nonprofit, religious	Ord 35 (1980)	Grand Terrace Municipal Code Chapter 5.40	Infraction
Highland	3/12 mo	Safety	1 onsite doublesided, 6 ft area, 5′ tall, 24 hours before until end.	Court sales	Ord 239 (1998)	Highland Municipal Code section 5.04.370	Infraction
Loma Linda	N/A	N/A	N/A	N/A	None	N/A	N/A
Redlands	3/12 mo	Not in PROW, safety, only during sale		Court sales	Prior Code secs 24001-10; Ord 2684 (2007), 2779 (2012),	Redlands Municipal Code Chapter 5.68	Infraction
Rialto	4/calendar yr only first weekend in March, June, September and December	Not in PROW, front or side yards	2 onsite, 4ft area, 4directional signs, prohibited in PROW, >864 sq in., with permission of property owner.	Nonprofits,	Ord 1416 (2008)	Rialto Municipal Code Chapter 5.69	Infraction; misdemeanor for <3/yr
San Bernardino	12/yr only on 3rd weekend of mo	Not in PROW, safety, only during sale	3 onsite unlit 24 hr prior until end; 4 Directional 2 sq ft on private property w/consent	Estate sales as to frequency nonprofits as to frequency	Ord MC-1344 (2011)	San Bernardino Municipal Code Chapter 8.14	Infraction/misdemanor (woblette)
Yucaipa	4/12 mo	Not in PROW	1 onsite, not in PROW	Court sales	Ord 102 (1992)	Yucaipa Municipal Code Chapter 5.22	Infraction
Unincorporated San Bernardino County	4/yr	Not in PROW	2 onsite, 4ft area, 4 directional signs, prohibited in PROW, 864 sq in., w/permission of property owner.	None	Ord. 411 (2007)	San Bernardino County Code Chapter 84.10	Infraction; misdemeanor for >3/yr

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055