November | 2011 | Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California

Filed under Minor's Compromise, Personal Injury Law Tagged with Michael Reiter Attorney at Law, Minor's Compromise

What is a “dangerous condition of public property?”

November 28, 2011 Leave a comment

Michael Reiter, Attorney at Law

A public entity may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability. Before I was in private practice helping plaintiffs, I received a good education in a variety of dangerous condition of public property cases when I was Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands.

A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is foreseeable that it will be used.” Government Code § 830(a). A public entity is liable for injury caused by a dangerous condition of property it owns or controls if the plaintiff establishes that (1) the property was in a dangerous condition at the time of injury; (2) that the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and either (i) a public employee, within the scope of his or her employment, negligent or wrongly committed an act or omission that created the condition or (ii) the entity had actual or constructive notice of the dangerous condition in sufficient time before the injury to take protective measures against the dangerous condition. California Government Code §§ 830, 835.

What are the kinds of scenarios that might involve two public entities, or a mix of public entities and private entities? The scenarios I have seen as an attorney have included:

1. A city, a water district, and a private land owner, where a sidewalk panel was removed to replace a meter box, and the sidewalk panel was never replaced. The plaintiff tripped and fell.

2. A city, a school district, and an adjoining land owner, and a nonprofit youth organization, where the plaintiff tripped over a utility cover, wherein the surrounding compacted dirt had eroded over the years, but no sidewalk ever existed.

3. A city, a county, and a private land owner, and a private party, where a motorcyclist died at an intersection jointly controlled by the city and county, when the motorcyclist was struck by the private party’s automobile.

4. A trip and fall that happened only in one city, but the plaintiff sued two cities because it was not clear which entity owned or controlled the sidewalk.

5. An injury to a person who was waiting at a bus stop from a city tree in a city park, but at a bus stop owned and controlled by a joint-powers authority transit system.

6. A flooding case wherein the flood control channel was owned by a county flood control agency, but the culvert and bridge were owned by a city.

California Government Code section 830(c) states “‘Property of a public entity’ and “public property” means real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the entity.”

“Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.” Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.

Obviously, ownership is a key fact to prove. Control can be more difficult. In the case of a jointly controlled intersection, there is typically an agreement between the two public entities. Obtain and examine that agreement (either through discovery or by using the California Public Records Act). Control can be established by deposing maintenance workers who have personal knowledge of the maintenance work done at the property, and to a limited extent, with written discovery.

In Bonanno v. Central Contra Costa Transit Authority, the California Supreme Court ruled that “the location of public property, by which users are subjected to hazards on adjacent property, may constitute a dangerous condition” under Government Code sections 830 and 835. Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 815-816.

Therefore, there are factual scenarios where more than one public entity can be responsible for one injury by pleading and proving a dangerous condition of public property cause of action. In the flooding scenario noted above, the plaintiff also pled an inverse condemnation cause of action.

A: 300 E. State St. Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

By Michael Reiter, Attorney at Law

Filed under Agreements, California Public Records Act, City of Highland, City of Redlands, City of Riverside, City of San Bernardino, Dangerous Condition of Public Property, Dangerous Intersection, Demand for Inspection, Depositions, Discovery, Evidence, Form Interrogatories, Insurance, Inverse Condemnation, Motor Vehicle Accidents, Municipal Law, Park Accident, Pedestrian Accident, Personal Injury Law, Real Property Law, San Bernardino City Attorney's Office, Trip and Fall Tagged with Dangerous Condition of Public Property, joint liability, Michael Reiter Attorney at Law, Personal Injury, public entity, torts

AB 1344 (Feuer and Alejo) Chaptered: A Reaction to the City of Bell Scandal

November 23, 2011 Leave a comment

Even though I no longer work as Assistant City Attorney for the City of Redlands or a Deputy City Attorney for the City of San Bernardino, municipal law continues to fascinate me, and I still help governments, business entities, organizations, and private citizens with their municipal legal issues. Even if I did not, the process of municipal government and the interplay between law and politics is fascinating.

The City of Bell scandal has had a large impact on cities, from cities jettisoning the City of Bell’s auditors, to citizens taking another look at how government works. AB1344 is an attempt to fight the last war, and try to close perceived loopholes that allowed the situation in Bell to occur. Here is the Legislative Counsel’s Digest for this bill, which was signed by Governor Brown and chaptered on October 9, 2011, and will be operative on January 1, 2012:

AB 1344, Feuer. Local governance.

(1) Existing law requires a charter commission to submit, among other things, a city charter to the voters of a city at either a special election called for that purpose, at any established municipal election date, or at any established election date, provided that there are at least 88 days before the election. Existing law also authorizes the governing body of any city or city and county to, among other things, propose a charter and submit the proposal for the adoption to the voters at either a special election called for that purpose or at any established municipal election date or at any established election date, provided there are at least 88 days before the election.
This bill would require a city charter or charter amendment, whether submitted to the voters by a charter commission or the governing body of the city or city and county, to be submitted at the next established statewide general, statewide primary, or regularly scheduled municipal election date, provided there are at least 95 days before the election. This bill would also require a proposal to adopt a charter, whether submitted to the voters by a charter commission or the legislative body of a city or city and county to include in the ballot description an enumeration of new city powers as a result of the adoption of the charter, including, but not limited to, whether the city council will, pursuant to an adopted charter, have the power to raise its own compensation and the compensation of other city officials without voter approval.

(2) The Meyers-Milias-Brown Act contains various provisions that govern collective bargaining of local represented employees. The Ralph M. Brown Act requires that all meetings of a legislative body of a local agency be open and public and all persons be permitted to attend unless a closed session is authorized. Existing law requires all contracts of employment between an employee and a local agency employer to include a provision which provides that regardless of the term of the contract, if the contract is terminated, the maximum cash settlement that an employee may receive shall be an amount equal to the monthly salary of the employee multiplied by the number of months left on the unexpired term of the contract, with a maximum of 18 months. This bill would, on and after January 1, 2012, additionally prohibit an employment contract for a local agency executive, as defined, from providing an automatic renewal of a contract that provides for an automatic compensation increase in excess of a cost-of-living adjustment or a maximum cash settlement in excess of certain limits, as specified. By expanding the duties of local officials, this bill would impose a state-mandated local program.

(3) Existing law sets forth the penalties for misuse of public resources or falsifying expense reporting, including, but not limited to, loss of reimbursement privileges, restitution to the local agency, civil penalties for misuse of public resources, and prosecution for misuse of public resources, including imprisonment for 2, 3, or 4 years, and disqualification from holding office, as specified. This bill would, on and after January 1, 2012, require a contract executed or renewed between a local agency and an officer or employee of the local agency to include a provision that requires an officer or employee of a local agency who is convicted of a crime involving an abuse of his or her office or position, as defined, to fully reimburse the local agency for specified payments made by that local agency to the officer or employee. The bill would also require an officer or employee of the local agency, who is convicted of a crime involving an abuse of his or her office, to fully reimburse any such payments that are made by the local agency in the absence of a contractual obligation between the agency and the officer or employee.

(4) The Ralph M. Brown Act enables the legislative body of a local agency to call both regular and special meetings. The act requires the legislative body of a local agency to post an agenda containing a brief general description of each item of business to be transacted or discussed at a regular meeting, in a location that is freely accessible to members of the public. The act also requires the presiding officer of the legislative body to deliver written notice to each member of the legislative body, and to each local newspaper of general circulation and radio or television station requesting notice in writing if the presiding officer of the legislative body calls a special meeting. This bill would require the legislative body, or the presiding officer of the legislative body, to provide notice of each meeting, including special meetings, on the local agency’s Internet Web site, if the local agency has one, as specified. In addition, this bill would prohibit any legislative body from holding a special meeting regarding the salary, salary schedule, or other form of compensation for any local agency executive.

(5) The bill would express a legislative finding and declaration that, to ensure the statewide integrity of local government, the provisions of the act are an issue of statewide concern and that, therefore, all counties and cities, including charter counties, charter cities, and charter cities and counties, would be subject to the provisions of the bill.

(6) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Specifically, this bill amends Elections Code sections 9255 and 9260; adds Chapter 10.1, commencing with section 3511.1 to Division 4 of Title 1 of the Government Code; amends Government Code sections 34457 and 34458; adds Government Code section 34458.5, Adds Article 2, commencing with section 53243 to Chapter 2 of Part 1 of Division 2 of Title 5 of the Government Code, amends Government Code sections 54954.2 and 54956.

A: 300 E. State St. Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Filed under City of Redlands, City of San Bernardino, Elections, Meyers-Milias-Brown Act, Municipal Law, Ralph M. Brown Act, San Bernardino County Incorporated Cities and Towns Tagged with AB 1344 Feuer, Charter City, Charter County

Certified Final Results of City of San Bernardino and San Bernardino City Unified School District November 8, 2011 Election

November 22, 2011 Leave a comment

By Michael Reiter, Attorney at Law

Today, the San Bernardino County Registrar of Voters Provided the certified final official results for the November 8, 2011 Election:

San Bernardino City Unif School Dist Gov Brd Mbr

200/200 100.00%

Vote Count Percent

ANNA M. COX 1,825 4.05%

WILLARD A. HUGHES 533 1.18%

MARGARET B. HILL 6,671 14.79%

MIKE GALLO 4,647 10.31%

LYNDA K. SAVAGE 5,482 12.16%

DAMON L. ALEXANDER 3,243 7.19%

ELSA VALDEZ 3,079 6.83%

JUAN M. LOPEZ 3,581 7.94%

HENRY WILLIAM NICKEL 1,594 3.53%

GIL NAVARRO 2,400 5.32%

DAN DEANE 3,068 6.80%

TERESA PARRA 4,218 9.35%

SHARON ”BOBBIE” PERONG 4,751 10.54%

Total 45,092 100.00%

City Attorney SAN BERNARDINO

148/148 100.00%

Vote Count Percent

DAVID L. MCKENNA 6,019 48.28%

JAMES F. ”JIM” PENMAN 6,447 51.72%

Total 12,466 100.00%

City Clerk SAN BERNARDINO

148/148 100.00%

Vote Count Percent

PEGGI HAZLETT 2,440 20.15%

GEORGEANN ”GIGI” HANNA 2,930 24.20%

AMELIA SANCHEZ-LOPEZ 3,465 28.62%

WILLIAM A. VALLE 1,077 8.89%

ESTHER JIMENEZ 2,196 18.14%

Total 12,108 100.00%

City Treasurer SAN BERNARDINO

148/148 100.00%

Vote Count Percent

DAVID C. KENNEDY 10,245 100.00%

Total 10,245 100.00%

Member, City Council SAN BERNARDINO Ward 3

24/24 100.00%

Vote Count Percent

TOBIN BRINKER 367 30.76%

JOHN VALDIVIA 826 69.24%

Total 1,193 100.00%

Member, City Council SAN BERNARDINO Ward 5

18/18 100.00%

Vote Count Percent

CHAS A. KELLEY 1,658 64.69%

LARRY A. LEE 905 35.31%

Total 2,563 100.00%

Member, City Council SAN BERNARDINO Ward 6

14/14 100.00%

Vote Count Percent

RIKKE VAN JOHNSON 1,075 100.00%

Total 1,075 100.00%

Member, City Council SAN BERNARDINO Ward 7

20/20 100.00%

Vote Count Percent

WENDY J. MCCAMMACK 1,361 57.26%

JIM MULVIHILL 1,016 42.74%

Total 2,377 100.00%

Filed under Uncategorized

SBDPolitics: City Attorney Penman to Mayor and Common Council: the voters heard the arguments, the voters said no, “go ahead and defy them.”

November 22, 2011 Leave a comment

Over on sbdpolitics.com, there is a discussion of what transpired at yesterday’s Mayor and Common Council Meeting regarding the request for an additional appropriation on today’s San Bernardino City Council Meeting. Click on the link in the previous sentence to go directly to the article.

The legal background is that the City of San Bernardino enters into professional services agreements with outside counsel. For this fiscal year, which began on July 1, 2011, the City Attorney’s Office has already gone through the budgeted amount. City Attorney James F. Penman says that if the City does not pay the bills, the outside counsel will withdraw, they may sue the City for the services incurred, and the City will have to pay whether they are budgeted in the City Attorney’s departmental budget or not.

To his challenge, the City Council voted on partisan lines to deny the additional appropriation to pay for the contracts approved by the Mayor and Common Council. Read more by clicking on the link.

A: 300 E. State St. Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Filed under City Attorney, City of San Bernardino, Inland Empire, Municipal Law, San Bernardino, San Bernardino City Attorney's Office, San Bernardino County Incorporated Cities and Towns Tagged with City of San Bernardino

Over on sbdpolitics.com: The San Bernardino City Attorney’s Office Budget: Additional Appropriation On City of San Bernardino Council Agenda 11/21/2011

November 21, 2011 Leave a comment

Over on sbdpolitics.com, there is a brief discussion of an additional appropriation on today’s San Bernardino City Council Meeting. Click on the link in the previous sentence to go directly to the article.

Address : 300 E. State St. Suite 517

Redlands CA 92373-5235

Telephone: (909) 296-6708

By Michael Reiter, Attorney at Law

Filed under City Attorney, City of San Bernardino, Inland Empire, Municipal Law, San Bernardino, San Bernardino City Attorney's Office, San Bernardino City Unified School District, San Bernardino County Incorporated Cities and Towns Tagged with City of San Bernardino, Elections 2011, San Bernardino City Unified School District

Cell Towers Disguised As Other Things

November 16, 2011 Leave a comment

When I was as Deputy City Attorney for the City of San Bernardino, even though I advised staff on cable television issues, cell towers were a land use issue handled by another attorney. However, when I was Assistant City Attorney for the City of Redlands, I was a little more involved, especially in regards to advising the Planning Commission. By the time I arrived in the City of Redlands, the cell towers had long been disguised. I believe the palm trees were first, then pine trees, and the mobile telephone companies even had a eucalyptus tree, which at least as a mockup, looked good.

Yesterday, a public relations specialist for a firm retained by AT&T sent me a press release as blog fodder that included this photograph:

According to the public relations specialist, this is a on South I Street near the corner of West Mill Street. As you can see, they are looking better then they used to. AT&T is not paying me for this, but the press release says that AT&T is increasing capacity and enabling 4G in San Bernardino. The photograph has been edited in Photoshop according to the metadata, so I’m not sure if this is an actual existing site, or the mock-up that wireless companies present to Planning Commissions before approval. I am not a Photoshop expert, so I won’t say that I can tell by looking at the pixels and from having seen a few in my time. Needless to say, I’m a customer, so any time they improve service without raising my rates, I’m all for it.

Once in Redlands, the Planning Commission actually asked that a tower (located in an industrial area) not be camouflaged and the wireless telecommunications provider was thrilled to not have to spend money on camouflaging the tower.

The AT&T tower shown above looks much better than the fake pine tree that you see on the South 330 Westbound 210 connector in Highland which has a glowing red light at night. As time has gone on, local wireless telecommunications ordinances have required better looking fake trees, and as you see in the photograph, real or Photoshopped, better landscaping, including real trees to offset the fake tree.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

By Michael Reiter, Attorney at Law

Filed under City of Highland, City of Redlands, City of San Bernardino, Land Use, Municipal Law, Real Property Law, San Bernardino, Wireless Telecommunications

Codification of the San Bernardino Municipal Code: An Update

November 14, 2011 1 Comment

As a – to my post about the codification of the San Bernardino Municipal Code, here is an update on the situation. The Mayor and Common Council, at their November 7, 2011 meeting, passed Resolution 2011-299 Authorizing the issuance of a Request for Proposals for Municipal Code Codification Services. The staff report to the Resolution painted this unflattering picture of how behind the City is in codification:

Table 1.1 Code Supplement Distribution History from 2008 through 2011

Time Period Distribution Date Note

1/2008 to 3/31/2008 4/2008 on schedule

4/2008 to 6/30/2008 7/2008 on schedule

7/2008 to 9/30/2008 11/2008 1 month behind schedule

10/2008 to 12/31/2008 9/2009 8 months behind schedule

1/2009 to 3/31/2009 9/2009 5 months behind schedule

4/2009 to 6/30/2009 9/2009 2 months behind schedule

7/2009 to 9/30/2009 10/2009 on schedule

10/2009 to 12/31/2009 1/2010 on schedule

1/2010 to 3/31/2010 3/23/2010 1 week ahead of schedule

4/2010 to 6/30/2010 2/2011 7 months behind schedule

7/2010 to 9/30/2010 2/2011 4 months behind schedule

10/2010 to 12/31/2010 Not yet distributed 9 months behind schedule

1/2011 to 3/31/2011 Not yet distributed 6 months behind schedule

4/2011 to 6/30/2011 Not yet distributed 3 months behind schedule

7/2011 to 9/30/2011 Not yet distributed Due this month

What that means is that it is difficult for the lay observer and the outside professional to find out the state of the law.

For those of you who can provide the services, the City has issued the Request for Proposals for Codification Services dated today, November 14, 2011. The response to the RFP is due December 12, 2011 at 5 p.m.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

Filed under California Public Records Act, City Attorney, City Clerk, City of San Bernardino, Municipal Code, Municipal Law, Public Contracting, San Bernardino City Charter, San Bernardino City Clerk, San Bernardino Municipal Code Tagged with Michael Reiter Attorney at Law, San Bernardino City Clerk

Looking for San Bernardino County Politics? Go to sbdpolitics.com

November 14, 2011 Leave a comment

I have started a companion site for the political posts called sbdpolitics.com. I will probably cross-post now and then between the blogs, especially during election season. However, the idea is for sbdpolitics to contain the vast majority of political, versus legal, postings. This blog, michaelreiterlaw.wordpress.com, will include municipal law topics, but less pure political posts.

The new site will be similar to this one: neutral, original content, value-added commentary, not a rehash or aggregators, and not a troll haven. I invite people to comment, but commenters have to use your real name and not a pseudonym. The design will hopefully improve over time.

Feel free to read both blogs, I will continue to write on municipal law and other legal subjects at michaelreiterlaw.wordpress.com, as well as about other legal topics. There are links to sbdpolitics.com under the title, and in the links on the right of this blog.

A: 300 E. State St. Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Filed under City of San Bernardino, Elections, Inland Empire, Municipal Law, San Bernardino, San Bernardino City Unified School District, San Bernardino County Incorporated Cities and Towns Tagged with City of San Bernardino, Elections 2011, San Bernardino City Unified School District

How Did the Candidates Endorsed by the PE and Sun Fare In The November 2011 San Bernardino Elections?

November 10, 2011 Leave a comment

How did the local press do with their endorsed candidates?

The Sun endorsed:

San Bernardino City Council:

3rd Ward: Tobin Brinker

5th Ward: Chas Kelley

7th Ward: Jim Mulvihill

San Bernardino City Attorney

David McKenna

San Bernardino City Clerk

Gigi Hanna

Of the City of San Bernardino races the Sun’s editorial board endorsed, the Sun went 1-3-1. The tie was Gigi Hanna, who made the run-off for San Bernardino City Clerk.

How about our friendly neighbors to the south from the Riverside Press-Enterprise?:

David McKenna, Tobin Brinker, Chas Kelley and Jim Mulvihill.

How did they do? 1-3.

Either an anonymous wag, a hyperpartisan blogger or a paid political consultant said that a Sun or Press-Enterprise Endorsement was a kiss of death, but I would characterize the endorsements as largely irrelevant. I think the one place that the endorsement may have helped a candidate is Gigi Hanna, because though she has lived in San Bernardino for some time, she was not as well known as some of the other choices.

What about the other periodicals? The Black Voice News: Lynda Savage, Mike Gallo, Juan Lopez and Margaret Hill for San Bernardino City Unified School District Board. Not bad, they were 3 for 4. How about the City of San Bernardino? A bloodbath. They endorsed Tobin Brinker, Larry Lee, Rikke Van Johnson, Jim Mulvihill, Esther Jiminez and David McKenna. Of course, Rikke Van Johnson won because he was unopposed. Otherwise, The Black Voice News’ picks all lost.

Cross-posted at sbdpolitics.com

A: 300 E. State St. Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708