Inverse Condemnation | Michael Reiter, Municipal Attorney with Milligan, Attorney, Beswick, Levine & Knox LLP Blog

By Michael Reiter, Attorney at Law.

Filed under 42 United States Code section 1983, City Clerk, City of Highland, City of Ontario, City of Riverside, City of San Bernardino, County of San Bernardino, Dangerous Condition of Public Property, Government Claims, Inverse Condemnation, Municipal Code, Municipal Law, Personal Injury Law, Real Property Law, San Bernardino, San Bernardino County, San Bernardino County Incorporated Cities and Towns, Trip and Fall Tagged with City of Highland, City of Riverside, City of San Bernardino, Government Claims, Government Code, Michael Reiter Attorney at Law, Public Entities, Tort Claims

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

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

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

The San Bernardino City Attorney’s Office

June 28, 2011 Leave a comment

This blog does not deal with politics. My clients come from across the political spectrum, and even if I have an opinion, I don’t agree with it. When you work directly for a public entity, it is best to keep your political opinions to yourself. When you work in the private sector, that’s also good advice.

With yesterday’s announcement of a non-incumbent seeking the position of the City Attorney, I thought I would give some legal perspective on the Office of the City Attorney in San Bernardino. As long-time readers of this blog know, I was a Deputy City Attorney for the City of San Bernardino for almost five years in the first half of the last decade. I learned much of what I know about civil and criminal litigation and municipal law while a Deputy City Attorney, and I am thankful for the opportunity to serve the people of San Bernardino and the entity for that time.

As I stated in my post about elected city attorneys in California, San Bernardino has an elected City Attorney. San Bernardino has been a charter city since 1905, and the Charter has been amended from time to time since then. The current Charter took effect on March 6, 2006. An annotated version can be found at the City’s website.

Charter Section 55 details the duties and function of the “office of City Attorney:”

San Bernardino City Attorney is a full-time position, and the incumbent cannot engage in private practice. Charter, section 55(a). The eligibility requirements is that the person elected or appointed must be a licensed California attorney, and be engaged in the practice of law for at least five years before his or her election or appointment, and must be a San Bernardino city resident and elector for thirty consecutive days before the appointment or filing of nomination papers for election or appointment. Charter, section 55(b). If the office becomes vacant, the vacancy is filled by the Mayor and Common Council. The appointment is valid until the next general municipal election, and the City Attorney must be elected for the remainder of the term, or for a full term in accordance with Charter Article II. Charter section 55(c).

The City Attorney is the City of San Bernardino’s chief legal advisor, the City Attorney “shall represent and advise the Mayor and Common Council and all City officers in all matters of law pertaining to their offices; he or she shall represent and appear for the City in all legal actions brought by or against the City, and prosecute violations of City ordinances, and may prosecute violations of State law which are misdemeanors or infractions and for which the City Attorney is specifically granted the power of enforcement by State law without approval of the District Attorney, or those violations which are drug or vice related; he or she shall also act and appear as attorney for any City officer or employee who is a party to any legal action in his
or her official capacity; he or she shall attend meetings of the City Council, draft proposed ordinances and resolutions, give his or her advice or opinion in writing when requested to do so in writing by the Mayor or Common Council or other City official upon any matter pertaining to Municipal affairs; and otherwise to do and perform all services incident to his or her position and required by statute, this Charter or general law.” Charter section 55(d). I have not paraphrased the majority of San Bernardino Charter section 55(d) because there are actual political disputes about the wording found in the Charter. I will not recap those disputes, but the reader can see the black letter law of the Charter. The ability to prosecute violations of State law are not currently being used. Some larger cities use the City Attorney’s Office to prosecute misdemeanors. While I never encountered it in San Bernardino, in Redlands, I would get calls from Los Angeles attorneys about DUIs. In San Bernardino (city and county), those are prosecuted by the District Attorney’s Office. To the extent that state law misdemeanors were ever prosecuted by the City Attorney’s Office in San Bernardino, my understanding is that duty was taken over by the San Bernardino District Attorney’s Office in the early 1980s.

The City Attorney’s salary is fixed by the Mayor and Common Council, but it can’t be less than $7,500.00 a year. The City Attorney shall be provided with office space and equipment, and clerical help by the City. Charter section 55(e).

The City Attorney is mentioned elsewhere in the Charter, particularly the Article regarding the City Manager. However, the core functions of the elected city attorney are found in the City Charter.

Section 55 of the Annotated San Bernardino City Charter has the following annotations: “(Scott v. Common Council (1996) 44 Cal.App.4th 684, 686, 696, regarding Section 55 (d).) (City
Attorney Opinion No. 96-3; City Attorney Opinion No.89-11; City Attorney Opinion No. 87-59; City Attorney Opinion No. 87-36).” Scott v. Common Council can be found in the California Appellate Reports 4th, volume 44, page 684, which can be found in most California libraries and law libraries. The City Attorney Opinions are available from the City Attorney’s Office. I would accord them a weight equivalent to the California Attorney General’s Opinions. I think they would lend some persuasive authority to any legal brief. I have not seen any of them since I was a Deputy City Attorney for the City of San Bernardino.

As the election season goes on, I may provide some more insights into the legal structure of the San Bernardino City Attorney’s Office.

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

T: (909) 708-6055

Filed under City of Redlands, City of San Bernardino, County of San Bernardino, Inverse Condemnation, Municipal Law, Personal Injury Law, Real Property Law Tagged with City Attorney, City Attorney's Office, Elected City Attorney, Michael Reiter Attorney at Law, Public Entities, San Bernardino, San Bernardino City Attorney

When is a Government Claim (formerly Tort Claims) required in California?

June 22, 2011 Leave a comment

When I became an attorney in December 1998, government claims were referred to as “tort claims”. That all changed with these words by the California Supreme Court in late 2007:

We also adopt the practice of referring to the claims statutes as the “Government Claims Act,” to avoid the confusion engendered by the informal short title “Tort Claims Act.” City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734.

The reason was the change is that the Act involves things other than torts, including contract actions. When in doubt, file a timely claim with all the required information.

California Government Code section 900 et seq. governs the claim requirements against California public entities (the State of California and local public entities). This is an overview of the requirement for a government claim, and is not an exhaustive look at the process. Seek appropriate legal assistance for your particular circumstance. I will explore some areas in depth at later times.

Certain causes of action do not require a government claim to be presented The following do not require a government claim to be presented to the public entity as a prerequisite to a civil action. False Claims Act (qui tam) do not require a Government Claim. Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1213 (as modified on denial of rehearing). Federal civil rights actions under the Civil Rights Act do not require a government claim. Williams v. Horvath (1976) 16 Cal.3d 834, 842. Government Code section 905 exempts claims under the Revenue and Taxation Code (subsection a); claims related to a “filing of a lien, statement of claim, or stop notice is required under law relating to liens of mechanics, laborers , or charges related thereto” (subsection b); claims “by public employees for fees, salaries, wages, mileage or other expenses and allowances” (subsection c); workers’ compensation (subsection d); public assistance (subsection e); public retirement or pensions (subsection f); principal or interest on warrants, bonds, notes, or other indebtedness (subsection g); claims related to special assessments as a result of a lien (subsection h); claims by the state or by a state department or by a local public agency or judicial branch entity (though the public entity can require a claim) (subsection i); unemployment insurance (subsection j); recovery of penalties and forfeitures under Labor Code section 1720 et seq. (subsection k); claims regarding the Pedestrian Mall Law of 1960 (subsection l); claims for the recovery of Civil Code section 340.1 damages regarding childhood sexual abuse regarding conduct occurring on or after January 1, 2009 (subsection m); claims for the recovery of money pursuant to Government Code section 26680 pursuant to Civil Code section 701.820 (subsection n). Government Code section 905.1 specifically exempts inverse condemnation cases from the presentment requirement of Government Code section 905, except that the entity should process the claim if presented.

A big warning: local agencies are allowed to adopt their own claims requirements pursuant to Government Code 935 with certain preemption by state law. For example, the City of San Bernardino’s claim ordinance is found at Chapter 3.16 of the San Bernardino Municipal Code. The City of Highland’s procedures are found at Chapter 3.08 of the Highland Municipal Code. The City of Riverside’s claim ordinance is found at Chapter 1.05 of the Riverside Municipal Code. Ontario’s is found at Title 3, Chapter 2 of the Ontario Municipal Code.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

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

June 10, 2011 Leave a comment

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

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

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

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

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

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

T: (909) 708-6055

Filed under 42 United States Code section 1983, City Clerk, County of San Bernardino, Government Claims, Inverse Condemnation, Municipal Law, Personal Injury Law, Real Property Law Tagged with Government Claims, Joint Powers Authority, Michael Reiter Attorney at Law, Public Entities, Tort Claims

What is “inverse condemnation” in California?

April 22, 2011 2 Comments

The Fifth Amendment of the United States Constitution reads, in pertinent part: No person shall be. . . deprived of . . . property, without due process of law, nor shall private property be taken for public use, without just compensation.” Similarly, the California Constitution, Article I, Section 19 reads “Private property may be taken or damaged for a public use and only when just compensation . . . for, the owner.”

These provisions are the constitutional basis for both eminent domain and inverse condemnation.

When I was a Deputy City Attorney for the City of San Bernardino, and later Assistant City Attorney for the City of Redlands, I was involved in both eminent domain defense and defending the cities from inverse condemnation liability. Now, as a private attorney, I represent clients in inverse condemnation claims against public agencies in California.

Most people know eminent domain is the taking of private property by the government (or in some cases a private entity such as an electric utility or a railroad) for a public use. What, then is inverse condemnation? Inverse condemnation is when a private party sues the government for the government’s taking of private property for a public use.

An action for inverse condemnation “is an eminent domain proceeding initiated by the property owner rather than the condemner. The principles which affect the parties’ rights in an inverse condemnation suit are the same as those in an eminent domain action. [Citations Omitted] “The authority for prosecution of an inverse condemnation proceeding derives from article I, section 19, of the California Constitution.” [Citations Omitted]. The doctrine has been summarized as follows: “Article I, section 19 . . .of the California Constitution requires that just compensation be paid when private property is taken or damaged for public use.” Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1138.

Some common areas an individual might sue a public entity for inverse condemnation include flooding, mud slides and debris flow, backed up sewer lines, broken water mains, landslides, brush fires, emission of noxious gas, and other similar disasters.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708