How Not to Handle Government Claims – Good Advice For California Public Entities

By Michael Reiter, Attorney at Law

Here is an anecdote of what not to do as a California Public entity.  The particular entity shall remain anonymous, because as a former government attorney, I am embarrassed for them.  It is a Joint Powers Authority within San Bernardino County.  This particular entity is not involved in a lot of litigation, so I understand why the front-line staff was not trained to deal with the situation.

Before you file a lawsuit against California public entities (with some exceptions, such as a 42 United States Code section 1983 case, or a constitutional tort like inverse condemnation), you are required to file a government claim (which used to be known as a tort claim).  The procedure is found in Government Code section 900 et seq.

Cities and counties get sued enough that you will easily be able to get a claim form and sometimes even instructions to file from them.  Many cities have the claim form online. The best practice is for cities and counties have claim forms that are fillable PDFs.

This particular entity did not have a claim form.  I had called to confirm this fact before hand.  I had to explain to them what I wanted to do, and they finally told me that they did not have such a thing.  That is not a problem, the requirements are found in the Government Code.

I went into the agency’s public entrance.   I told the front counter employee that I was there to file  government claims.  The counter employee did not understand.  The counter employee said  that it should have a purple stamp from the court.  The counter employee then said that  I told the counter employee that the claim had to be filed first (the claim is a prerequisite for suit).  The counter employee then went to find a supervisor.  The counter employee came back and told me that she had been instructed to return the paperwork to me and say goodbye.  I asked politely if there was anyone else I could speak to.  The supervisor came out.  I explained the process, and how the Government Code required that the claim be presented.  I told the supervisor and the counter employee, that they should keep the original of each claim, stamp it in, and give me back a stamped, conformed copy.  I told them that they should send it to their attorneys at a well-known local and statewide municipal law firm.  To their credit, the front-line staff gave me my conformed copies.  The problem was not with the front-line staff, but with higher level staff that has not trained the front-line staff.

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

 

Is the City of Redlands a General Law City or a Charter City?

By Michael Reiter, Attorney at Law

I get some of my post ideas through queries that are listed in my site’s statistics section.  The title of this post, Is the City of Redlands a General Law City or a Charter City,  is well-within my expertise to answer because I was the Assistant City Attorney of the City of Redlands from 2006 to mid-2010.  The answer is the City of Redlands is a general law city.  Redlands has never been a charter city, and I don’t think the issue has ever been put to the voters.

As Assistant City Attorney of the City of Redlands, I would sometimes search documents in the City Clerk’s Office  for cases or matters.  The City of Redlands itself had a slightly different form of government until the 1940s, with a Board of Trustees instead of a City Council, but I think that had to do with how cities were organized under California law at the time. 

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

Duties of the City Clerk Under California Law In a General Law California City

By Michael Reiter, Attorney at Law

In a general law California city, the City Clerk’s duties are created by state law and by city or town ordinances and resolutions.  State law establishes the duties of  a general law City Clerk in Government Code section 40801, et seq.

The Duties of the California general law City Clerk are:

1. Clerical: Keep accurate record of the legislative body and board of equalization in books bearing appropriate titles and devoted exclusively to such purposes  with a comprehensive general index. The City Clerk shall keep an ordinance book and record all certified city ordinances.   The record with the certificate is prima facie evidence of the ordinance’s passage, publication and contents.  The official records should not be filed in any court proceeding.  The City Clerk is the custodian of the city seal.  The City Clerk can administer City oaths, take and certify City affidavits and depositions, and appoint deputies.  (Government Code sections 40801, 40806, 40807, 40813, 40814);

2. Financial: The City Clerk is the City’s accounting officer and shall retain records reflecting the City’s financial condition.  The City Clerk shall cause to be published a summary of the City’s financial report (required by Government Code section 53891 in the form prescribed by the the State Controller) once in a newspaper of general circulation, or if no newspaper, according to code, and posted no later than 120 days after the fiscal year’s close, and the clerk’s financial and accounting duties can be transferred to the finance director.  The City clerk is the ex officio assessor for the assessment and collection of city taxes unless delegated to the county.  (Government Code sections 40802, 40804, 40805, 40805.5, 40810); and

3. Other:  The City Clerk shall perform “such additional duties as are prescribed by ordinance.” ( Government Code section 40812).

 

The City Clerk also has duties created by the Election Code regarding elections and other duties in the Government Code, such as notifying the county board of supervisors regarding the change of a place name or number (Government Code section 34092).  The Government Claims Act allows a government claim to be filed with a city clerk.  Government Code section 915(a)(1).  The City Clerk is also receives Statements of Economic Interest under the Political Reform Act, as well as other duties under the Act.  Government Code section 87500(f).
Other duties can be prescribed by ordinance.  The City of Rancho Cucamonga, for example, requires certain documents on appeals to be filed with the City Clerk.  As I have mentioned before, often California Public Records Act requests are routed through or answered by the City Clerk.  The City Clerk in Redlands sold Fourth of July tickets at the University of Redlands on behalf of  the Redlands 4th of July Committee, Inc.  Many City Clerks process passports for the State Department.

 

A charter law City’s City Clerk’s duties will be created by the City’s Charter.  For example, the City of San Bernardino’s City Charter, Section 60 is very similar to the Government Code’s prescribed duties.

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

In California, may disabled people park an unlimited time on streets without posted time limitations?

By Michael Reiter, Attorney at Law

 

In California, may disabled people park an unlimited time on streets without posted time limitations?  A recent California Court of Appeals decision says no.

When I was a Deputy City Attorney for the City of San Bernardino, I became an expert on Parking Citation Appeals to the San Bernardino Superior Court pursuant to California Vehicle Code section 40230.  In my time as an attorney, no party was ever more angry than a disabled person, with a valid disabled placard or license plate, cited for parking on the cross-hatches, particularly if the Judge or Commissioner upheld the citation.

This case was heard in the Second Appellate District, Sixth Division in Spicer v. City of Camarillo (May 31, 2011)  2011 WL 2120460.  This is a rare case where the first paragraph  gives you black letter law:

A local ordinance limits parking times on city streets. On those streets where posted signs limit the parking times, the Vehicle Code permits disabled persons displaying a placard to park an unlimited time. On streets where no such signs are posted, may disabled persons park an unlimited time? We conclude they may not because no statute permits such unlimited parking.  Id. at *1

The procedural posture of the case is a somewhat unusual.  Plaintiff sued the City for  “declaratory and injunctive relief and violation of his civil rights pursuant to Civil Code section 52.1”  Id.  The facts were stipulated by both sides, neither party submitted any evidence, and a bench trial was held.

Basically, the plaintiff parked for more than seventy-two hours in a location without a posted time limit, in violation of the Camarillo Municipal Code and the Vehicle Code.  His vehicle was towed and impounded.  The Court of Appeal and the trial court rejected plaintiff’s statutory, constitutional and res judicata arguments.

 

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

New California Case Rules Plaintiff Entitiled to Recover the Reasonable and Necessary Costs Caused by Someone Who Wrongfully Injured Cat

By Michael Reiter, Attorney at Law

A new case in the First District Court of Appeals, Division 1, Kimes v. Grosser (May 31, 2011), 2011 WL 2128649:

“Under Civil Code section 3333 plaintiff may present evidence of the bills incurred to save the cat’s life and is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat. Defendants are entitled to present evidence why the costs were unreasonable under the circumstances.” Id. at *4.

The Court gives the background of the case is:

Plaintiff Kevin Kimes alleges as follows: His pet cat Pumkin was shot with a pellet gun on October 28, 2005, while perched on a fence between his property and that of defendants Charles Grosser et al. Emergency surgery costing $6,000 saved Pumkin’s life, but left Pumkin partially paralyzed, and plaintiff incurred an additional $30,000 in expenses caring for Pumkin because of the injury. Plaintiff contends the shot that wounded Pumkin was fired from defendants’ backyard, and defendants Charles or Joseph Grosser were responsible for the “willful[ ] and malicious[ ]” shooting.

Plaintiff filed this suit to recover amounts paid for Pumkin’s care as a result of the shooting, and punitive damages. Defendants filed motions in limine to exclude evidence of plaintiff’s expenses caring for Pumkin, a cat they described as “an adopted stray of very low economic value,” on the theory that their liability was limited to the amount by which the shooting reduced Pumkin’s fair market value. When the court granted the motions at the outset of the trial, plaintiff declined to proceed, effectively conceding that Pumkin had no market value that justified the expenses of trial. Plaintiff’s appeal is from the judgment of dismissal entered on his failure to prosecute. Id. at *1

The dismissal was reversed by the Court. The takeaway from this decision is that animals will not be treated exactly like other property.

I once argued in the alternative that the value of an animal was limited to its fair market value. That dog was a German Shepherd named Woman. The dog attacked the police officers during a neighborhood evacuation when an unexploded bomb was found nearby. Non-lethal force (mace) was used before the dog was shot, and the dog survived for another year before being put down.

Unlike the case with Pumkin, the judge ruled that Woman’s shooting was within the discretionary immunity under the Government Code, and because the officers were immune, the City of San Bernardino was immune. Judgment was entered in favor of my client, the City of San Bernardino. There is a saying that “this case is a real dog” and sometimes, it is true.

In my time as an attorney, I’ve come across a variety of pet names. The City of San Bernardino had an arson dog named Cinder. Another Deputy City Attorney had an appeal of a determination to destroy a dog named Biscuit (who was later absolved because there was a “counterfeit Biscuit” running around the neighborhood, causing the mayhem attributed to Biscuit). Dangerous dog hearings and appeals are the less glamorous side of municipal law.

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

Filing a 42 United States Code section 1983 Case alleging police misconduct: California Superior Court or United States District Court (Federal)

By Michael Reiter, Attorney at Law

 

Can you file a 42 United States Code section1983 case alleging police misconduct in a California Superior Court?  Yes, but it is in general a poor idea for one reason:  peace officer employment records are protected by the Pitchess Motion process under California law.  As a Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands, I handled both defense of Pitchess Motions and Federal Civil Rights cases, so I have some insight into the process.

However, the Federal Courts do recognize some limits to discovery of peace officer personnel records.  For example, in this slip opinion from the Southern District of California:

“Federal Rule of Civil Procedure 26(c) provides that a court may limit discovery to protect from annoyance, embarrassment, oppression, or undue burden or expense. Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Government personnel files are considered official information. See, e.g., Zaustinsky v. University of Cal., 96 F.R.D. 622, 625 (N.D.Cal.1983), aff’d, 782 F.2d 1055 (9th Cir.1985). In determining what level of protection to afford the official information privilege, courts balance the interests of the party seeking discovery against the interests of the governmental entity asserting the privilege. See Kelly v. City of San Jose, 114 F.R.D., 653, 660 (N.D.Cal.1987). The party requesting the information must describe how the information sought is “reasonably calculated to lead to discovery of admissible evidence, identifying interests … that would be harmed if the material were not disclosed, and specifying how that harm would occur and how extensive it would be.” Id. at 671. The courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir.1990); Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384-85 (5th Cir.1980); Zaustinsky, 96 F.R.D. at 625.”  Snowten v. City of San Diego (2010)  2010 WL 2998846, *2.

In lieu of an in-camera hearing, the parties may agree to a stipulated protective order.  Defendants may be willing to do so to avoid running up plaintiff’s attorneys’ fees, and save their clients fees, as well.

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

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708