Real Property Law | Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

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

Friday Aside: A History of In-N-Out Burger in San Bernardino and environs

October 12, 2012 Leave a comment

I’ve written about In-N-Out Burger a few times, particularly in relation to trade dress. Someone reached my blog by asking “when did in n out open first in san bernardino ca.” If the searcher was seeking when the Fifth Street location (795 W. Fifth Street, San Bernardino) was built, that location was built in 2011, and opened at the end of 2011 (December 8, 2011). It replaced the Second Street location (the address was technically 190 Bungalow Court), which closed on December 7, 2011. The Second Street location was demolished after the State of California took possession on January 1, 2012. The State of California acquired the parcel through eminent domain for the Interstate 215 widening project. See Resolution CDC/2011-50 of the Community Development Commission of the City of San Bernardino.

The Bungalow Court location was there as long as I can remember, and consisted of a double drive through and no inside eating area. The location in south San Bernardino,was moved slightly to the north to 1065 E. Harriman Place during the creation of the HUB Project. There was an Owner Participation Agreement between In-N-Out and the Redevelopment Agency of the City of San Bernardino, acknowledged by Resolution 2001-317, approved by Mayor Valles on October 3, 2001. The old In-N-Out in North Loma Linda was also a double drive through. According to a letter dated January 23, 1997 from then-attorney (and now Judge) Cynthia Ludvigsen, the old In-N-Out was on the northwest corner of Rosewood Drive and Tippecanoe. The Highland store (28009 Greenspot Road, Highland, CA 92346) opened in 2012.
So, when did In-N-Out Burger open in San Bernardino? The area near Central City Mall was redeveloped in the 1970s. The Redevelopment Agency of the City of San Bernardino put out a photo survey of the downtown area before redevelopment, and if I recall correctly, the area on 2nd Street had houses in the early 1970s.

The In-N-Out website’s history section gives clues, but no answers. Obviously, the first one opened in 1948 in Baldwin Park, the same year that McDonald’s converted to a quick serve restaurant from a barbecue restaurant in San Bernardino. By 1958, there were five locations in the San Gabriel Valley. By 1973, In-N-Out had 13 locations, all in Los Angeles County, and all with two drive through lanes and no inside eating. In 1979, the first In-N-Out with a dining room opened in Ontario as restaurant number 21. The website adds that only 13 more no dining room locations were built after that. By 1988, In-N-Out had 50 stores in total, and in each of the core Southern California counties: Los Angeles, Orange, Riverside, San Bernardino and Ventura.I have In-N-Out Santa glasses from 1982 that I know we bought from the 190 Bungalow Court location, so that probably means that the original downtown San Bernardino In-N-Out Burger was built between 1973 and 1982. [Update: October 17, 2012. I couldn’t stand it any longer. According to In-N-Out’s customer service line, the store was opened on February 11, 1982].

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Filed under City of Highland, City of Redlands, City of San Bernardino, Eminent Domain, Food, Friday Aside, Inland Empire, Land Use, Land Use, Land Use Law, Municipal Law, Real Property Law, Redevelopment, San Bernardino, San Bernardino County, Small Business Law Tagged with highland, In-N-Out, Loma Linda, San Bernardino

Don’t Believe Extrajudicial Nonsense In Fighting Code Enforcement: “Constitutionalist” Extremism

April 19, 2012 2 Comments

I represent individuals and corporations in code enforcement disputes with local cities and counties. Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010. In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals. These individuals believed what they read in newsletters, and later, on the internet. Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum. One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.” “Sovereign Citizens A Growing Domestic Threat to Law Enforcement“, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct. Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances. “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court. Here are some issues that I dealt with, in pertinent part from that Complaint:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” California Constitution Art. XI, § 7. Complaint, Pg. 10, Para. 18. State law specifically does not preempt the City’s nuisance laws. Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances. The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California. All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848. Lux v. Haggin (1886) 69 Cal. 255, 335. “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).” Witkin, Summary of California Law (9 ed.) Real Property § 4. Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
The oaths taken by officer holders are invalid for some reason.
For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
The 14th Amendment is invalid, therefore, the law doesn’t apply to them. (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
Misuse of the Uniform Commercial Code.
The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
A misconception about the term “common law.”
The Gold Standard, the Federal Reserve, Corporations, and capitalization, and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted. There is no online record that he ever paid. Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers. Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree. However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects. Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag. The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

Filed under 42 United States Code section 1983, Administrative Citations, Administrative Civil Penalties, Administrative Warrant, Building Permit, Charter, City Attorney, Civil Procedure, Civil Rights, Code Enforcement, Constituational Rights, Equal Protection, Federal Court, Fifth Amendment, Fourteenth Amendment, Land Use, Municipal Law, Procedural Due Process, Real Property Law Tagged with allodial title, Constitutionalism, Michael Reiter Attorney at Law

Gophers Can Cause Trip and Falls

January 5, 2012 Leave a comment

I went out for another walk today, in the late afternoon. I love to see California native wildlife, like a California Pocket Gopher

I am a big fan of California wildlife, particularly Pocket Gophers, though not as much as my late friend Emma. I had never seen a living pocket gopher before, but this individual poked his head up a few times, and I was able to get a picture of his head. Unfortunately, I only had an iPhone to take a picture, and it was from about six feet away.

Gophers can cause damage to lawns. They can also damage parks. When I was a Deputy City Attorney for the City of San Bernardino, I defended a lawsuit involving an AYSO coach who allegedly tripped and fell in a field in Wildwood Park. Because the case involved a public entity, the plaintiff had to plead and prove a dangerous condition of public property cause of action, but with a private landowner, the standard is typically negligence. The case also involved cross-complaints against the City’s pest controller contractor and the American Youth Soccer Organization. If I recall correctly, the American Youth Soccer Organization, Inc. picked up the City’s defense under an express indemnification clause in a field use agreement.

A: 300 E. State St. Suite 517

Redlands CA 92373-5235

T: (909) 296-6708

Filed under Animals, City of San Bernardino, Civil Procedure, County of San Bernardino, Dangerous Condition of Public Property, Dangerous Intersection, Demand for Inspection, Evidence, Gophers, Insurance, Insurance, Municipal Law, Park Accident, Pedestrian Accident, Personal Injury Law, Real Property Law, San Bernardino City Attorney's Office, Small Business Law, Trip and Fall Tagged with animals, AYSO, Dangerous Condition of Public Property, indemnification, Michael Reiter Attorney at Law, Personal Injury, public entity, torts

When Should You Contact A Lawyer For A Code Enforcement Problem?

December 28, 2011 1 Comment

Many California cities have departed from filing misdemeanor or infraction citations or complaints in their local Superior Court. The reason why is that the Government Code provides a more efficient process with administrative citations. For many situations, such as leaving your garbage cans out too long, it makes more sense to pay an administrative citation then to be arraigned on a criminal citation. Further, with the ever-increasing amount of penalties piled upon criminal citations, it is also beneficial to the violator to only have to pay $100 for a ticket. The city or town benefits because they get the entire fine, minus any processing fee from a third party administrator, versus getting roughly half of the base fine for the criminal citation. In most cases, the alleged violator does not need an attorney. Even when it is a criminal case, unless your time is exceedingly valuable or you will be out of the area at the time, it does not make sense to pay an attorney to appear on your behalf.

The number one way to get rid of a code enforcement problem is to come into compliance with the ordinance. Sometimes that is not possible for financial, logistical, or other reasons. However, an attorney is often the wrong tool to deal with financial problems, as the attorney’s fee will increase the cost to remedy the situation. Sometimes an attorney can help with the process and explain the situation, and work with the agency to come up with a compliance plan.

However, with administrative civil penalties cases, where the city wants to charge the property owner up to a thousand dollars a day for a continuing violation, it may make sense to speak to an attorney sooner than later. Once the citation becomes a lien against the property, depending on the implementing ordinance, it may be impossible for anyone — including a skilled attorney, to do anything about the situation. Also, attorneys will not guarantee results, because with code enforcement, the same City that cited the alleged violator that must be convinced to change their course.

Alleged code enforcement violators like to think that they are being singled out for selective enforcement, or some kind of discrimination is at hand. Though that may be the case, having hundreds of junked cars on a property makes a selective enforcement case difficult to win. Though code enforcement departments sometimes very technical interpretations of vague municipal codes that are problems, the majority of code enforcement cases are not based on animus towards the property owner.

For out-of town landlords and property holders, it sometimes helps to have an attorney who has dealt with a code enforcement department in the past. Each code enforcement situation is different, and property owners and tenants should consult with an attorney about their particular situation.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

Filed under Administrative Citations, Administrative Civil Penalties, Code Enforcement, Constituational Rights, Fourteenth Amendment, Inland Empire, Land Use, Municipal Code, Municipal Law, Procedural Due Process, Real Property Law, Riverside, San Bernardino, San Bernardino County Tagged with Code Enforcement, Michael Reiter Attorney at Law, Muncipal Law, ordinances

How To Act In Front of A Code Enforcement Hearing Officer

December 13, 2011 Leave a comment

Many cities in California have shifted away from hearing boards for administrative hearings and hired hearing officers to hear appeals of administrative citations, administrative actions, and administrative civil penalties. Here are some general, common sense rules to follow when appearing before a hearing officer.

1. Be prepared. Bring all the relevant information, including current photographs, and any witnesses on your behalf. Draft an outline of remarks before the hearing.

2. Be respectful. There’s no point in being bombastic. When I was a Deputy City Attorney for the City of San Bernardino, I had the occasion to observe hundreds of hearings in front of a few different hearing officers. One well-known unlawful detainer attorney argued his way into a higher fine for his client.

3. If you are challenging any aspect of the hearing, make a record. Submit any objections to the process or hearing officer in writing.

4. As a corollary to be prepared, show up early, watch how the hearing is conducted, and obtain any rules adopted by the hearing officer or City in advance.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

Filed under Administrative Citations, Administrative Civil Penalties, City of Redlands, City of San Bernardino, Code Enforcement, Constituational Rights, Fourteenth Amendment, Inland Empire, Land Use, Municipal Code, Municipal Law, Procedural Due Process, Real Property Law, Riverside, San Bernardino, San Bernardino County Tagged with Code Enforcement, Michael Reiter Attorney at Law, Muncipal Law, ordinances

What is a “dangerous condition of public property?”

November 28, 2011 Leave a comment

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

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

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.

A: 300 E. State St. Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

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

Can two public entities be jointly responsible for the same injury under a dangerous condition of public property theory of liability?

September 26, 2011 Leave a comment

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.

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.

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.”

Also, conditions of adjacent property can make public property hazardous. 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.

A: 300 E. State St. #517

Redlands, CA 92373-5235

T: (909) 296-6708