Waiver of California Civil Code section 1542 and Unknown Claims in Personal Injury Litigation

By Michael Reiter, Attorney at Law

In California, a release is often the end of a dispute or lawsuit.  Commonly, you will see language waving California Civil Code section 1542.  California Civil Code section 1542 reads:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Waiving rights under California Civil Code section 1542 is so routine, many attorneys mistakenly use the pre-2005 version of the section (which added “or her” in three places).  Releases are among the most copied documents amongst lawyers.  The problem is that some copy verbiage that does not necessarily apply in every situation (for example the Insurance Code verbiage where there is no insurance carrier is involved).

In a case where there was no express California Civil Code section 1542 waiver, the court still found that the release waived all claims:

Plaintiff testified he understood he was releasing claims arising under all statutes the agreement referred to, even those he did not understand. This knowledge is sufficient to withstand the provisions of Civil Code section 1542. Nothing in that statute requires that it be designated in the release or that a party specifically waive its provisions. While it might have been more comprehensive to have a reference to Civil Code section 1542 in the release, “ ‘To be effective, a release need not achieve perfection….’ [Citation.]” (Skrbina v. Fleming Companies, supra, 45 Cal.App.4th at p. 1368, 53 Cal.Rptr.2d 481.) Thus, as to defamation and the overtime claim, the release is enforceable.  Perez v. Uline, Inc. (2007) 157 Cal. App. 4th 953, 959,

Even when the release recites a waiver of California Civil Code section 1542, that may not be enough to actually waive the rights and release the tortfeasor:

Furthermore, mere recital, as in the release signed by plaintiffs, that the protection of Civil Code, section 1542 is waived, or that the release covers unknown claims or unknown parties is not controlling. Whether the releaser intended to discharge such claims or parties is ultimately a question of fact. Leaf v. City of San Mateo (1980) 104 Cal. App. 3d 398, 411, 163 Cal. Rptr.

That does not mean that the obligations are not discharged at the time of signing.  Some cases find that mistake or fraud require the release’s rescission.  Some cases find that the waiver is valid, based on the facts of the situation:

Review of the circumstances confirms our interpretation that the release was designed to extinguish all claims extant among the parties. First, Winet was represented by counsel and was aware at the time he entered into the release of possible malpractice claims against Price relating to certain services Price had rendered to him.  With this knowledge and the advice of counsel concerning the language of (and the import of waiving) section 1542, Winet expressly assumed the risk of unknown claims. Second, it is significant that the parties were able to, and did, fashion language memorializing their agreement to preserve identified claims from the operation of the release when such was their intention, specifically, the Canoga Storage Partners, Ltd. malpractice claim exclusion. Finally, Winet was represented by his own counsel, who explained to Winet the import of the release in general and of the waiver of section 1542 in particular. Under these circumstances we may not give credence to a claim that a party did not intend clear and direct language to be effective. (Bodle v. Bodle (1978) 76 Cal.App.3d 758, 764, 143 Cal.Rptr. 115 [“Where a formal contract has been prepared by persons learned in the law, the words should be given their ordinary legal import.”].)  Winet v. Price (1992) 4 Cal.App.4th 1159, 1168.

The moral of the story is that claimants and their attorneys should very carefully review any release before signing.  If specific causes of action or claims need to be preserved (for example, insurance bad faith), they should be expressly removed from the release.   The release should not be boilerplate that does not apply to the situation, and should be narrowly tailored to the facts of the situation.  The  should be satisfied with the deal before signing the release, because there may be no opportunity to undo the deal after the release is signed.

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.

Copyright 2011 Michael Reiter, Attorney at Law.

California Welfare and Institutions Code section 8102 Return of Firearms Petition

By Michael Reiter, Attorney at Law.

One of the more unusual procedures that sets Municipal Law from the ordinary practice of law is the petition process set forth in Section 8102 of the California Welfare and Institutions Code. This procedure has to do with the return or destruction of firearms seized from people subject to a Welfare and Institutions Code section 5150 hold.   These are commonly called Return of Firearms Petitions.  California Welfare and Institutions Code section 8102 reads in pertinent part:

(b) Upon confiscation of any firearm or other deadly weapon from a person who has been detained or apprehended for examination of his or her mental condition, the peace officer or law enforcement agency shall notify the person of the procedure for the return of any firearm or other deadly weapon which has been confiscated.

Where the person is released, the professional person in charge of the facility, or his or her designee, shall notify the person of the procedure for the return of any firearm or other deadly weapon which may have been confiscated.

Health facility personnel shall notify the confiscating law enforcement agency upon release of the detained person, and shall make a notation to the effect that the facility provided the required notice to the person regarding the procedure to obtain return of any confiscated firearm.

(c) Upon the release of a person as described in subdivision (b), the confiscating law enforcement agency shall have 30 days to initiate a petition in the superior court for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others, and to send a notice advising the person of his or her right to a hearing on this issue. The law enforcement agency may make an ex parte application stating good cause for an order extending the time to file a petition. Including any extension of time granted in response to an ex parte request, a petition must be filed within 60 days of the release of the person from a health facility.

(d) If the law enforcement agency does not initiate proceedings within the 30-day period, or the period of time authorized by the court in an ex parte order issued pursuant to subdivision (c), it shall make the weapon available for return.

(e) The law enforcement agency shall inform the person that he or she has 30 days to respond to the court clerk to confirm his or her desire for a hearing, and that the failure to respond will result in a default order forfeiting the confiscated firearm or weapon. For the purpose of this subdivision, the person’s last known address shall be the address provided to the law enforcement officer by the person at the time of the person’s detention or apprehension.

(f) If the person responds and requests a hearing, the court clerk shall set a hearing, no later than 30 days from receipt of the request. The court clerk shall notify the person and the district attorney of the date, time, and place of the hearing.

(g) If the person does not respond within 30 days of the notice, the law enforcement agency may file a petition for order of default.

That’s basically the procedure. Each entity and court implements the section a little differently.  In the  City of  San Bernardino, the petition is in the name of the Chief of Police and filed by the City Attorney’s Office. Section 8102(f) states that the Clerk shall notify the person and the district attorney, which suggests that the District Attorney can file the petition.
For example, here is the minute order from a petition wherein the City of San Bernardino sought a judicial determination on the return of weapons:

ACTION CAME ON FOR STATUS HEARING ON PETITION SEEKING JUDICIAL DETERMINATION RE: RETURN OF
FIREARMS OR DEADLY WEAPONS (W&I SECTION 8102).
–
THE COURT FINDS THAT NO ANSWER HAS BEEN FILED; THAT THE RESPONDENT HAS NOT CONTACTED THE CITY
ATTORNEY; AND THAT THE RESPONDENT DID NOT APPEAR IN COURT TODAY.
–
THE COURT ORDERS A DEFAULT JUDGMENT ENTERED ON BEHALF OF THE PETITIONER, CITY OF SAN
BERNARDINO, AND AGAINST THE RESPONDENT, [Omitted]
–
THE COURT FURTHER ORDERS WEAPON(S) DESTROYED PURSUANT TO THE LAW.
STAGE AT DISPOSITION: ALL OTHER JUDGMENTS BEFORE TRIAL.
CASE DISPOSITIONED BY JUDGMENT
ACTION – COMPLETE

In this case, the petitioner did not respond, and the court ordered the weapon(s) destroyed pursuant to law.  You can find the City of San Bernardino’s cases by searching for the name of the police chief or past police chiefs.

In Redlands, when I was Assistant City Attorney, this situation only came up once when the Police Department, in the name of the People of the State of California, tried to do it by themselves, and brought it to the City Attorney’s Office when the respondent responded.

The City of Ontario does it a little differently.  Those cases are filed in the name of the Ontario Police Department versus the gun owner.   The District Attorney is added as a third party, but the petition is prosecuted by the City Attorney.

Here is an example of a minute order in a similar default hearing involving the Ontario Police Department:

THE SAID DEADLY WEAPON IS SUBJECT TO DISPOSITION PURSUANT TO SECTIONS 12028 AND 12032 OF THE
PENAL CODE.
STAGE AT DISPOSITION: ENTRY OF JUDGMENT – DEFAULT JUDGMENT BY COURT BEFORE TRIAL (CIV)
DISPOSITION: ENTRY 0F JUDGMENT DEFAULT BY COURT BEFORE TRIAL

Even in San Bernardino County and San Bernardino County Superior Court, you can see there are different ways that the courts handle these petitions, and different ways that city attorneys, and others, file these petitions.

The appeals courts give other variations of this theme.  In the People of the State of California v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, the Ventura County District Attorney’s Office filed the petition in the name of the People, and sued the property in question like in an asset forfeiture case.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

      Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

W: http://michaelreiterlaw.com

The Relationship Between the City Manager and the City Attorney in California

By Michael Reiter, Attorney at Law

I have worked in three cities: I was a clerk in the City of Santa Clara in an in-house City Attorney’s Office of a charter city with an appointed City Attorney; I was a Deputy City Attorney in the City of San Bernardino, with an elected City Attorney, and I was the Assistant City Attorney of the City of Redlands, a general law city with an in-house appointed City Attorney.   There was only one City Attorney and City Manager for the City of Santa Clara during my tenure, only one City Attorney and one City Administrator transformed by a charter change to City Manager in San Bernardino, yet there were two City Managers and one interim City Manager during my time as an Assistant City Attorney in Redlands.   In Redlands and San Bernardino, the same City Attorneys reign still, and the City Attorney of Santa Clara, Mike Downey only retired within the last decade after decades of service.

Typically, the relationship in a general law city between the City Attorney and the City Manager is that they are both appointed by the Council, and subject to removal by the Council.  That means they have similar interests.  Typically, both the City Attorney and the City Manager have to keep the Council happy and do their respective jobs, and only rarely will they be on the opposite side of any issue.  In the best situations, the City Attorney can assist the City Manager in accomplishing the City Manager’s duties in accordance with municipal, state and Federal law.

In a charter city, it depends on what the Charter says, but I am not aware of any Charter that subordinates the City Attorney to the City Manager.  Certainly, Santa Clara, San Bernardino and Riverside do not. Typically, the functions are separate, and the two must work together in the same way as in a general law city to meet the city’s needs, whether administratively, during budgeting and on employment matters.

An elected City Attorney, a relatively rare position, has an independent base of power granted by the electorate, subject to removal from office by regular election or recall.  This can create a different dynamic between the appointed City Manager and the elected City Attorney, because their interests are not necessarily the same.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517

     Redlands, CA 92373-5235

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Vicarious Liability of an Owner for Permissive Use in California Motor Vehicle Accidents

By Michael Reiter, Attorney at Law.

When I was the Assistant City Attorney of Redlands and a Deputy City Attorney in the City of San Bernardino, I handled a fair number of motor vehicle accident cases on behalf of the City and its employees.  These cases included a police officer who allegedly ran a red light, a police officer that allegedly rear-ended a car on a freeway ramp, a police officer that allegedly sideswiped a car in a carpool lane,  an animal control officer who allegedly rear ended a woman, a city employee that allegedly backed up into a man turning into his driveway, a pair of citizen volunteer patrol members who allegedly turned into a woman on a bicycle, and a parks employee who allegedly ran over a man sleeping in the park.  The injuries claimed ranged from soft tissue injuries to major hip injuries.  I also defended cities in dangerous condition of public property cases involving motor vehicles and catastrophic injuries, including the death of a motorcyclist, and another one where the passenger on a motorcycle was injured when the motorcyclist ran a stop sign.

A defense to the owner of a vehicle, where the driver and owner lack an employee-employer or principal-agent relationship, is  Vehicle Code section 17151(a).   Typically, the cases listed above involved a a employer-employee relationship. Vehicle Code section 17151(a) reads:

The liability of an owner, bailee of an owner, or personal representative of a decedent imposed by this chapter and not arising through the relationship of principal and agent or master and servant is limited to the amount of fifteen thousand dollars ($15,000) for the death of or injury to one person in any one accident and, subject to the limit as to one person, is limited to the amount of thirty thousand dollars ($30,000) for the death of or injury to more than one person in any one accident and is limited to the amount of five thousand dollars ($5,000) for damage to property of others in any one accident.

Also not included within this statute is negligent entrustment or negligent maintenance of the vehicle by the owner.  There is no limit on the liability of an owner under common law.

In a very recent California Supreme Court case, the Court held that the “respondeat superior doctrine makes an employer liable, irrespective of fault, for an employee’s tortious conduct in the scope of employment.”  Diaz v. Carcamo (2011) 51 Cal.4th 1148, 126 Cal.Rptr.3d 443, 449.  “If the employee did not drive negligently, and thus is zero percent at fault, then the employer’s share of fault is zero percent. That is true even if the employer entrusted its vehicle to an employee whom it knew, or should have known, to be a habitually careless driver with a history of accidents.”  Id. at 453-454.

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.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517

     Redlands CA 92373-5235

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Are Records of Complaints Public Records In California Under the California Public Records Act?

By Michael Reiter, Attorney at Law

Are records of complaints disclosable public records in California under the Public Records Act?

“Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident . . .”  Government Code section 6254(f).

The California Supreme Court, in Hayne v. Superior Court (2001) 26 Cal. 4th 1061, held that the “records of investigation exempted under section 6254(f)  encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency.”  Id. at  1071.   Therefore, records of complaints to law enforcement agencies may be exempt under section 6254(f).  Government Code section 6254(f) is one of the few sections that protects records, but requires the public agency to provide information to the public derived from records, but not the records themselves.  Many agencies just provide face sheets that has all the required information to be disclosed.

California Government Code section 6254(k) exempts disclosure of  records, “the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”  The official information privilege, found in California Evidence Code section 1040.  Official information is “information obtained in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”   California Evidence Code section 1040(a).  There is a separate section protecting the disclosure of the identity of an informant.  Evidence Code section 1041.
One court used the California Public Records Act’s catch-all exemption, Government Code section 6255 to deny records regarding the identity of complainants :

“The Public Interest in Nondisclosure of Airport Noise Complainants’ Personal Information Clearly Outweighs the Public Interest in Disclosure Under the Particular Facts of this Case.”   City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1022.

Sometimes public entities release records that are subject to an exemption.  In many cases, the public entity can release records subject to an exemption, even though an exemption exists.  Much of that is attributable to the nature of the regime at the public entity.  Some public entities are more open than others.  If someone has the opportunity to make an anonymous, credible complaint, that opportunity should be taken.  Another way is to use a third-party to make a complaint.  Expect that if a complaint is made, the public entity will not protect the complainants’ anonymity.

For public entities, it is good public policy to protect complainants when possible.   Most code enforcement is done on a complaint-basis, and the efficacy of a program is reliant on the public informing the public entity of violations.  Therefore, agencies should allow anonymous complaints, or do their best to protect complainants.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517

     Redlands CA 92373-5235

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

City of San Bernardino’s 1908 Charter Amendments

By Michael Reiter, Attorney at Law

By 1908, the electorate of the City of San Bernardino decided to make changes to the 1905 Charter.   None of these changes survive in the Charter today, but it is interesting to see the evolution of what has been referred to as the “constitution” of the City of San Bernardino. These changes over the years have shaped both the City of San Bernardino as an entity, and the city, as a geographical unit.  I have drafted a legislative version (with additions and strikeouts of the 1905 Charter with the amendments to the Charter added by the 1908 election and approved by the California Legislature.

Here are the changes:

The election replaced the 1905 Sec. 182 with a new Section 182 (though it made only a few changes).  The selection process for choosing the Chief of Police was changed.  The duties of the chief were changed, making him the ex-officio tax collector, and a full member of the board of health.  The mayor and common council were given the power to give the Chief of Police no more than one percent of the tax collected, in addition to the $1,500 annual salary given in section 24 of the Charter.

Sec. 182. On or before after twelve o’clock noon of the third second Monday of Aprilin May, 1907next succeeding his election, the mayor shall appoint, a chief of police, subject to the confirmation of the common council, some competent person who shall be known as the chief of police of the City of San Bernardino. The chief of police, for the suppression of any riot, public tumult, disturbance of the public peace, or any organized resistance against the laws of public authorities in the lawful execution of their functions, shall have the powers that are now, or may hereafter be conferred upon sheriffs by the laws of this state, and shall in all respects be entitled to the same protection; and his lawful orders shall be promptly executed by deputies, police officers and watchmen in the city, and every citizen shall also render aid when required for the arrest of offenders and maintenance of public order. He shall execute and return all process issued and directed to him by any legal authority; and shall enforce all ordinances of the city, and arrest all persons guilty of a violation of the same. He shall prosecute before the competent tribunal all breaches, or violations of city ordinances.

He shall also have charge of the city prison and prisoners confined therein, and all those who are sentenced to labor upon the streets, or public works of the city, and shall see that all orders and sentences in reference thereto are fully executed and complied with, and shall perform such other duties as may be prescribed by the mayor and common council.

The chief of police shall be ex-officio a member of the board of healthtax collector, and ex-officio license tax collector, and a member of the board of health.  He shall collect all taxes and license taxes as prescribed by law and the ordinances of the city.  As tax collector and license collector the mayor and common council shall have power to fix extra compensation for the chief of police not to exceed one per cent of the amount actually collected, which shall be in addition to his salary otherwise fixed in this charter.

The 1908 election added a new section 195, subdivision thirteen to read,

Thirteenth—In their discretion to admit non–resident children to any of the departments of the public schoolsof the city, upon the payment, at such time terms and conditions as the board may direct, of tuition fees to be fixed by the board; provided that the tuition fee required and collected shall in no case be less than the cost per capita of maintaining the school to which the pupil is admitteddeem just;

Basically, this change allowed the Board of Education to decide the terms and conditions to admit children outside the district.  It is not clear when this section was deleted from the charter, but probably either at the 1961 election or the 1973 election.

The election added Section 238a, which established a minimum wage of $2 a day for public works, and requiring that workers on San Bernardino Public Works projects be “native born or naturalized citizens”:

Section 238a. The time of service of any laborer, workman, or mechanic employed in or upon any of the public works of the city of San Bernardino, or in or upon any work done by or for said city is hereby limited and restricted to eight hours during any one calendar day and no person shall be employed in or upon any such works except he be a native born or naturalized citizen of the United States, and the minimum wages of laborers employed in the execution of any such works shall be $2.00 per day; and there shall be inserted in every contract entered into for any such work a stipulation that no person shall be employed in the execution of such contract who is not a native born or naturalized citizen of the United States, and that in the performance of such work eight hours shall be the maximum number of hours that any laborer, workman or mechanic shall be required or permitted to work on any calendar day, and that $2.00 per day shall be the minimum wages paid to any person employed by the contractor in the execution of his contract: provided, that this section shall not apply to cases of extraordinary emergency, caused by fire, flood or danger to life or property, or to work upon any public, military or naval defenses or works in time of war.

The only trace of section 238a today is a note in the current (2004) City Charter which states in an annotation that “Section 238, Subsection (a) repealed by election held February 6, 1973).  It probably was amended some time between 1908 and its repeal in 1973.”  To give some context, according to the State of California’s Department of Industrial Relations, California’s first minimum wage was .16 an hour in 1916, so assuming an eight hour day, the minimum set by the Charter was high for the times.  I do not know the history or the impetus for the citizenship requirement.

California Senate Concurring Resolution No. 3 [1909]  had this preamble which discussed the election and a little of the legislative history of the 1908 amendments:

Whereas, the mayor and common council of the city of San Bernardino did by ordinance number 399, adopted by said mayor and common council on the 19th day of October, 1908, and approved by the mayor of said city on the 19th day of October, 1908, and pursuant to section eight of article eleven of the constitution of the State of California, duly propose to the qualified electors of said city certain amendments to the charter of said city to be submitted to said qualified electors at a special municipal election to be held for that purpose, in said city, on the 28th day of December 1908: and,

Whereas, said proposed amendments were, and each of them was, published for twenty days, in a daily newspaper printed and published in said city and of general circulation therein, to wit. The Evening Index said publication ending on the 16th day of October, 1908; and,

Whereas, the mayor and common council of said city did, by an ordinance known as Ordinance No. 401, which was duly adopted on the 23rd day of November, 1908, call and order the holding of a special election in said city of San Bernardino, on the 28th day of December, 1908. (at least forty days after the publication of said proposed amendments for twenty days, in said daily newspaper of general circulation in said city of San Bernardino, to wit: The Evening Index) and did provide in said ordinance for the submission of said proposed amendments to the said charter at said special election, which said ordinance was approved by the mayor of said city on the 23rd day of November, 1908, and was published, for at least ten days prior to the time appointed for the holding of said election, in “The Evening Index.” a daily newspaper printed and published in said city; and,

Whereas, at said election a majority of the qualified electors voting thereon voted in favor of the ratification of and did ratify three of said proposed amendments to said charter: and,

Whereas, the common council of said city of San Bernardino, pursuant to said charter did, at a special meeting thereof, held at 7.30 o’clock P. M. on the second day after said election, duly canvass the returns of said election and duly found, determined, and declared that a majority of such qualified electors voting thereon, had voted for and ratified three of said proposed amendments to said charter: and,

Whereas, said three amendments to said charter, so ratified by a majority of the qualified electors of said city voting at said election are in words and figures as follows, to wit:

The next amendment o the Charter was passed in 1913.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

City of San Bernardino’s 1905 Charter

By Michael Reiter, Attorney at Law

This week, I’m focusing on the City of San Bernardino.  I am starting with the City of San Bernardino’s original 1905 Charter.  The 1905 Charter is the beginning of the modern structure of the City of San Bernardino.  It created the Mayor and Common Council.  You can still see much of the same verbiage that is found in today’s Charter (passed in full by the voters on November 2, 2004, almost one hundred years later).

Linked here is the City of San Bernardino’s original charter from 1905.   The current version omits the preamble and the freeholder’s certificate.  The current version of the document was drafted while I was a Deputy City Attorney for the City of San Bernardino.  I did not have a hand drafting the current Charter as part of my duties as Deputy City Attorney.  However, there may have been a discussion about keeping the freeholder’s certificate, as it certainly was considered a part of the Charter before then.

Here is the preamble from the 1905 Charter, giving the background for adopting the Charter:

Whereas, The City of San Bernardino, a municipal corporation of the County of San Bernardino, State of California, now is and was at all time herein referred to, a city containing a population of more than three thousand five hundred inhabitants and less than ten thousand inhabitants; and

Whereas, At a special municipal election, duly held in said city on the 30th day of July, 1904, under and in accordance with the law and provision of Section eight of Article eleven of the Constitution of said State of California, a board of fifteen freeholders, duly qualified, was elected in and by said city, by the qualified electors thereof, to prepare and propose a charter for the government of said city; and

Whereas, Said board of freeholders did, within ninety days after said election, prepare and propose a charter for the government of the said City of San Bernardino; and

Whereas, The said charter was on the 27th day of October, in the year 1904, signed in duplicate by the members of said board of freeholders and was thereupon duly returned and Charter of filed with the president of the board of trustees of said City of San Bernardino, and the other copy thereof was filed with and in the office of the county recorder of the County of San Bernardino; and

Whereas, Such proposed charter was thereafter published in the San Bernardino Daily Times-Index and in the San Bernardino Daily Sun, each being daily newspapers of general circulation in said City of San Bernardino. The said charter being published for a period of twenty days and more, the first publication thereof was made within twenty days after the completion of said charter; and

Whereas, Said proposed charter was, within not less than thirty days after the completion of said publication, submitted by the board of trustees of the City of San Bernardino to the qualified voters of the City of San Bernardino at the special election previously duly called and therein held on the 6th day of January, 1905; and

Whereas, At said last mentioned special election, a majority of said qualified electors of said city voting at such special election, voted in favor of the ratification of such charter as proposed as a whole; and

Whereas, Said board of trustees after canvassing said returns, duly found and declared that the majority of said qualified electors, voting at special election, had voted for ratifying said charter; and

Whereas, The same is now submitted to the legislature of the State of California for its approval and ratification as a whole without power of alteration or amendment, in accordance with Section eight of Article 11 of the Constitution of the State of California; and

Whereas. Said charter so ratified is in words and figures following, to wit:

The Charter gave the City of San Bernardino a limited version of home rule.  Instead of the Board of Trustees of a City of the Fifth Class, it now had a Mayor and Common Council.

There are some key differences between the Charter today and the 1905 Charter.  The 1905 charter created a judicial department (a police court), that no long exists.  The 1905 Charter governed and created a Board of Education which is now the governing body of the San Bernardino Unified School District.  The original charter created the now-defunct City Assessor, and the City Engineer and Superintendent of Streets.  The latter two positions are no longer mentioned in today’s Charter.  The City no longer has a Health Board, those functions are performed by the County.  However, the basic structure of the 1905 Charter is shared with the current Charter.  Section 55, though amended, still governs the elected City Attorney.

Here is the freeholder certificate attached to the original Charter, which was omitted from the 2004 Charter:

We, the undersigned, members of the board of fifteen freeholders of the City of San Bernardino, in the State of California, elected at a special election held in said city on the 30th day of July, 1904, to prepare and propose a charter for such city, under and in accordance with Sections 8 and 8 1/2 of Article XI of the constitution of this state, have prepared and we do hereby propose the foregoing as and for a charter for said city.

In witness whereof we hereunto sign our names in duplicate at said City of San Bernardino, this 27th day of October, A. D. 1904.

A. G. KENDALL, President;

JOHN ANDRESON,

H. M. BARTON,

M. L. COOK,

GEORGE M. COOLEY,

J. J. HANFORD,

W. S. HOOPER,

L. D. HOUGHTON,

JOS. INGERSOLL,

JAMES MURRAY,

W. M. PARKER,

H. C. ROLFE,

J. W. CATICK, Secretary.

State Of California, County Of San Bernardino,       }

City Of San Bernardino.                }ss.

I, C. F. Riley, President of the board of trustees of the City of San Bernardino, State of California, do hereby certify that the board of freeholders whose names appear signed to the foregoing proposed charter, together with F. B. Daily and I. R. Brun, who were absent at the time the said charter was signed, and whose names do not appear signed thereto, were, on the 30th day of July, 1904, at a special municipal election held in said City of San Bernardino, on said day, duly elected by the qualified voters of said city, to prepare and propose a charter for said city; that each of said freeholders had been a qualified elector and freeholder for more than five years previous to said election; that the foregoing is a true copy of said charter prepared and returned to me as president of said board of trustees within ninety days after said election, as required by Section eight of Article eleven of the constitution of this state; that such proposed charter was then published in the Daily Times-Index and in the Daily Sun of San Bernardino, for more than twenty days, and that the first publication of said proposed charter was made within twenty days after the completion of said charter; that within not less than thirty days after the publication of said charter as required by said Section eight to-wit: On the sixth day of January, 1905, said charter was submitted at a special election duly held therein for the purpose of ratifying or rejecting said proposed charter.

That said proposed charter as a whole was duly ratified at said election by the majority of the votes of the qualified electors of said city, and that the returns of said election were duly canvassed by the board of trustees of said City of San Bernardino on the ninth day of January, 1905, and the result thereof declared as above set forth and that in all matters and things pertaining to said proposed charter the provisions of said section of the constitution and of the laws of the State of California, pertaining to the adoption of the charter, have been fully complied with in every particular.

In witness whereof I have hereunto set my hand and affixed the corporate seal of said city this 10th day of January, 1905.

C. F. RILEY, President of the Board of Trustees of the City of San Bernardino.

Attest:                                                                         HARRY ALLISON,

[seal]                                                              City Clerk.

Students of San Bernardino History may recognize some of the names.

Albert G. Kendall was a County Supervisor from 1918 to 1926 and namesake of Kendall Drive in San Bernardino, and according to the 1900 Census, County Assessor.  John Andreson is the namesake of the Andreson Building, and was later County Supervisor in the 5th District of San Bernardino from 1926 to 1940.  At the time of the signing, he was with Farmer’s Exchange Bank.  George M. Cooley owned Cooley Hardware.  The other names are a little more obscure.  Per the 1900 Census,  Hiram M. Barton was a fruit dealer. Marian L. Cook  was a civil engineer, John Hanford was a handyman, William S.. Hooper was a banker, Lagona D. Houghton owned a cigar store, Joseph Ingersol was a liquor merchant. James Murray was a saloon keeper, Wilbur M. Parker was a machinist.  Horace C. Rolfe was a lawyer, Joseph W. Catick was an undertaker, I.M. Brun owned a liquor store (not from the Census), and  Frank B. Daily was an attorney.  Charles F. Riley, the President of the Board of Trustees of the City of San Bernardino at the Charter’s adoption, was a proprietor of a soda works in 1900.  Harry Allison, the City Clerk in 1905, was a telegraph operator in 1900.  Joseph Catick was later mayor, elected to two non-consecutive two year terms.

The 1905 Charter sat unamended until amendments passed in 1908.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave.,  Suite 104

Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Adoption and Amendments to the San Bernardino City Charter by Election

By Michael Reiter, Attorney at Law

The City of San Bernardino is a charter city, and since the charter was first adopted on January 6, 1905, it has been amended from time to time, with a complete readoption in 2005.

Below is a list of dates when the voters of San Bernardino considered adopting, adding to, or amending existing sections to the Charter of the City of San Bernardino.  There is at least one other election in the mid 1950s which added section 186 to the Charter.  Not all measures passed, most notably the Measure M election on November 7, 2000 and the Measure C election on November 2, 2010.  There are probably elections with failed charter sections that are not listed.

January 6, 1905 [Special Charter Election, Charter of the City of San Bernardino, adopted by a majority]

December 8, 1908 [Special Municipal Election, Unknown title amending section 182 (Chief of Police), amending section 195, Subdivision 13 (Schools, Non-Residents),  and added Section 238a  (Wage and Hour Law for Public Works) , adopted by a majority]

April 18, 1913 [Proposed by Mayor and Common Council as “Proposed charter amendment number one”, amending section 133 (Bonded Indebtedness), adopted by a majority] [Special Municipal Election]

March 18, 1919 [Proposed by Mayor and Common Council, “Proposed Charter Amendment No.1, No.2, No.3, No.4, and No. 5, adopted by a majority] Special Municipal Election]

April 11, 1921 [Proposed by Mayor and Common Council, “Proposed Charter amendment number one”  amending section 1, “Proposed charter amendment two” repealing section 10, “Proposed Charter amendment three” amending section 40, “Proposed amendment Four, repealing section 224, “Proposed charter amendment number five” repealing section 234, and “Proposed charter amendment number two”, amending section 133 (Bonded Indebtedness , adopted by a majority [Special Municipal Election]

November 7, 1922 [Special Municipal Election]

November 4, 1924  [Special Municipal Election]

April 13, 1925 [Special Municipal Election]

April 8, 1935 [Proposed Charter Amendments 1, 2, 3, 4, 5, all adopted] [Special Municipal Election]

March 15, 1937 [Proposed Charter Amendments 1, 2, 3, 4, 6, 7, 8 adopted, amendment 5 defeated] [Special Municipal Election]

March 20, 1939 [Proposed Charter Amendment No. 1, adopted by a majority]  [Municipal Primary Election]

November 3, 1942 [Propositions Number One, Two and Three, adopted by a majority, Propositions Number Four, Five, Six, and seven defeated]  [Special Municipal Election]

May 16, 1944 [Special Municipal Election]

November 7, 1944 [Proposed Charter Amendment Two and Three adopted by a majority, Proposed Charter Amendment One defeated, Special Municipal Election]

March 19, 1945 [Proposed Charter Amendment No. One, Two and Three adopted by a majority] [Special Municipal Election consolidated with a Municipal Primary Election]

April 11, 1949 [Proposed Charter Amendment Number One, Two and Three] [Special Municipal Election]

March 20, 1951 [Proposed Charter Amendments Number One, Two, Three, Four, Rejected, Five, Six and Seven, adopted by a majority] [Special Municipal Election consolidated with a Municipal Primary Election]

April 12, 1955 [Proposed Charter Amendments Number 1 amending section 55 (City Attorney), Number 2, Number 3 (adding section 186 regarding police and fire salaries), adopted and Number 4, rejected]  [General Municipal Election]

June 5, 1956 [Measure N adopted by a majority, Measure O and P, rejected by a majority] [Special Municipal Election consolidated with the Consolidated Direct Primary Election]

March 19, 1957 [Primary Municipal Election]

June 3, 1958 [Special Municipal Election consolidated with the statewide Primary Election]

March 17, 1959 [Primary Municipal Election]

March 21, 1961

February 5, 1963 [adding section 116, andamending section 11,approved by a majority] [Primary Municipal Election]

February 2, 1965 [Proposed by Mayor and Common Council, amending section 141 (City Treasury), approved by a majority] [Primary Municipal Election]

June 7, 1966 [Proposed by Mayor and Common Council,  amending Section 3 (Creating 7 wards), amending sections 10, 11, 13, 14, 30, 31 136, 160, 215, 219 and 282, and repealing 53], approved by a majority] [Special Municipal Election Consolidated with the Direct Primary Election

February 4, 1969 [Proposed by Mayor and Common Council, amending sections 33, 135, 60 (City Clerk), repealing sections 136, 137, 138, 236 and 237, amending section 213, 214, 215, 216, 217, 218, 249,  [Primary Municipal Election]

February 6, 1973

June 4, 1974

November 2, 1976 [Held with a Presidential General Election]

March 6, 1979

November 1984

November 1988 [Held with a Presidential General Election]

March 7, 1989

June 2, 1992

March 7, 1995

November 5, 1996 [Measure E, Mayor’s Veto Power, adopted, (18,404 votes Yes (56.6%), 14,103 No (43.3%)] [Held with a Presidential General Election]

November 2, 1999 [Measure X, adopted (8,016 votes Yes (86.6%), 1,234 votes No (13.3%))] [Consolidated Election]

November 7, 2000 [Measure M, Adopt New Charter,  defeated (23,691 votes No (67.7%), 11,277 votes Yes (32.2%)) ] [Held with a Presidential General Election]

November 6, 2001 [Measure H, Incompatibility of Offices, adopted (5,628 votes Yes (64.3%), 3,116 votes No (35.6%)]; [Measure I, Approval for Hiring Outside Counsel, amend section 241, adopted (5,459 Yes (60.3%), 3,592 No (39.6%))] [Consolidated Election]

November 5, 2002 [Measure C, Salary of Mayor amend section 24, adopted (10,355 Yes (52.2%), 9,458 No (47.7%)]; Measure D, Council Salary, defeated (9,333 Yes (47.6%), 10,235 No (52.3%))] [General Election]

November 2, 2004 [Measure G,  Adopt New Charter (1905 Charter with changes) adopted (23,214 Yes (61.83%), 14,333 No (38.17%))] [Held with a Presidential General Election]

November 2, 2010. [Measure C, Appointed City Attorney, Treasure and Clerk, defeated, (11,333 Yes (36.86%), 19,409 No (63.14%))]  [General Election]

The tally, by decades (assuming that the first year (say, 1990) belongs to the next decade and is not the last year of the previous decade):

1900s: 2

1910s: 2

1920s: 4

1930s: 3

1940s: 5

1950s:6

1960s:5

1970s: 4

1980s: 3

1990s:4

2000s: 4

2010s: 1

By my count, attempted adoption or amending of the Charter has happened 43 times in a little over 100 years.

The history of the San Bernardino City Charter is interesting, and I will discuss it more in the future.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

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

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Who will win the November 2011 City of San Bernardino City Attorney’s Election?

Friday Aside: How The Competition Between Apple, Google, Amazon, And Facebook Is Good For Everyone

By Michael Reiter, Attorney at Law

Three of the companies listed above are California businesses (regardless of their actual incorporation).

I enjoy Apple’s mobile products to a degree, though I use a PC for work.  I switched from Yahoo, which I began using in 1995 to Google in 1999 after a friends’ fiancee told me about it during dinner at the Venetian.  I cannot remember my first use of Amazon, but probably in the late 1990s.  I only sparingly use Facebook, but I probably would have been on it non-stop if it had been formed fifteen years earlier.

Though I am still not convinced Facebook belongs in the category of the four companies, these four West Coast companies have the ability to dominate American life for decades.  That is ultimately good for the consumer, and I hope no one company will ever emerge victorious.

These companies are not directly competing with each other in every market segment.  Federal antitrust law will keep them from being vertically and horizontally integrated behemoths.  However, when they compete with each other, it is ultimately good for consumers, and their competition has influenced other industries as well.

Google’s key concept is organizing information.  Information is Google’s product.  Of course, their actual product is advertising, but you can go a great ways without having to give Google money.  That alone is a victory for consumers.  Google amuses and delights me in new ways.  Of course, I’ve never tried to get a hold of human being at Google (though one once contacted me to see if I was a satisfied customer).  I can imagine that could be difficult if you have a problem.

Apple’s key concept is “it just works.”   I have had some technical problems with Apple products over the years, but they have been problems with networking (which has been the bane of my existence since the early 1990s), restrictions on music created by the rights holders, and the fact that iTunes for Windows has become bloatware.   Otherwise, I haven’t had any major problems with Apple products.

Amazon’s key concept is excellent customer service, and low prices.  Yes, electronic retailing is an unfair advantage against brick and mortar, but the automobile was unfair to the carriage industry.  Why is Amazon’s customer service excellent?  Because I have never had to use it.  Even when I had a return, I read the website, and I returned it.

Facebook.  Other people like Facebook, and I’ll leave it at that.  I think they have major challenges in the year’s ahead.  The internet is laden with casualties: Myspace, Napster, and other that could not compete.  I am hoping Facebook survives, not as a hegemon, but as a legitimate contender to keep the others in check.

I enjoy music, though perhaps not to the degree I did when I could walk between Amoeba Records and Rasputin Records on a daily basis on Telegraph Avenue.   Here, I see a three-way competition between Apple, Google and Amazon.  I have shied away from physical media in the past few years, because of the ease of legal digital downloads.  Even though Apple has made a mostly-closed ecosystem with iTunes/iDevice integration, Amazon has gotten my attention with its low prices.  Five dollar albums and .69 single tracks blows iTunes’ now-standard (though with some exception) $1.29 single track prices.   I no longer have the equipment or time to care about the quality difference between the formats.  This is good for music (because it encourages legitimate music buying), and good for the consumer.  Google has the ability, especially if it can leverage Youtube, to become a player in music.

The competition for social networking seems to be Facebook dominating, with others taking shots.  Apple can’t seem to get a coherent social networking strategy together, and Google has the best shot because of their bags of cash.  To me, it reminds me of how Microsoft bought its way into consoles with the Xbox.   Facebook is already in the search business, and they will use their market power in social networking to compete in the core markets of the other three giants.

The competition for information is between Apple, Amazon, and Google.   Apple has iBooks, Amazon has Kindle (and soon, a tablet running Google’s Android), and Google has Android.  I hope no one wins this one.  On one hand, you have Google scanning whole libraries, and making public domain materials available for free.  Their gambit for, effectively, compulsory licensing of all works would have done wonders for the spread of information.  Amazon’s model is paid content, but often, paid content is king.   Apple has superior, human-based design and functionality.   I just hope we get to the point where we can have the best of all worlds.  Right now, you can have your Kindle content on your iPad and iPhone, and your Google content on your iPad and iPhone.  It would be nice to be able to have an Amazon device that played your Apple Store content, but for legal reasons, that probably isn’t going to happen without more pressure from the Department of Justice.
Video competition is nowhere near where it should be for a variety of reasons, and I hope that the market power of Apple, Amazon and Google can slowly change that.  In a future perfect for consumers, you can have unbundled multichannel video for one price, no matter where or how you view it.  You’ll be able to buy or rent, all-you-can eat, or a la carte, and buy a movie once and own it once and for all.  Of course, that’s not the model of the content companies.

There is sometimes some consumer benefit to monopoly power.  With pre-breakup AT&T, you didn’t have to fret about what kind of phone to get.  Ultimately, I think the lack of simplicity is outweighed by the telecommunication, media, and information technology options we have today.