Excellent Legal Resource For Those Impacted By Recent Disasters

By Michael Reiter, Attorney at Law

After the Old Fire, the Mayor and Common Council of the City of San Bernardino authorized the City Attorney’s Office to assist San Bernardino residents (and later, people in unincorporated areas adjacent to the City of San Bernardino).  Though this was highly unusual (having public attorneys directly assist the public), I was honored to do so, and I saw it as a continuation of my public service work that I had started as the staff attorney at Legal Aid Society of San Bernardino and continued with my nuisance abatement work as a city prosecutor.

While helping members of the public with their legal problems occasioned by their houses burning down and losing all their possessions, we  distributed a useful guide published by the mega-law firm Morrison & Foerster LLP.  Though no doubt Morrison & Foerster LLP’s hardworking associates did the heavy lifting, it had the seal of a variety of voluntary bar associations (including the San Bernardino County Bar Association) and the State Bar of California on the back.  Here is a blurb from the Morrison & Foerster LLP website that explains why they created this guide:

In 2007, a series of wild fires broke out in Southern California, destroying at least 1,500 homes and burning over 500,000 acres of land from Santa Barbara County to the US–Mexico border. Nine people died as a direct result of the fire.

The Helping Handbook, which contained information about legal issues that people may face in an emergency, as well as contact information for organizations offering assistance, was originally created as a legal guide for individuals, victims’ families, and small businesses affected by the September 11, 2001 terrorist attacks. Since then, MoFo has continued to work with state and local bars to create versions of the Helping Handbook for people displaced by natural disasters such as the Southern California wildfires of 2003, Hurricane Katrina in 2005, and the New York flooding in 2006.

With the 2007 wildfires leaving many people displaced in its wake, MoFo decided to create a version of the Helping Handbook to help victims manage in the aftermath. Many of the affected residents’ primary language was Spanish. During this critical time, when advice on how to manage this critical situation was needed most, MoFo and TransPerfect Legal Solutions decided to work together to provide Spanish-speakers with accessible, accurate information about the resources available to help them.

 

The most recent Morrison & Foerster Helping Handbook is from 2008.  As we begin another fire season, (and after the Hill Fire has been contained) hopefully this guide can help people who do not know where to turn after a disaster.
The most important valuable lessons I learned from the Old Fire and its aftermath are that public adjusters must have the best lobbyist in Sacramento.   I never met anyone who was satisfied with a public adjuster. Here is sage advice from the 2008  Helping Hands Fire Handbook:

What is a public insurance adjuster and what should I look for if I decide to hire one?
Public insurance adjusters claim that they can maximize your insurance benefits by finding damage
that an insurance company adjuster might not find. It is generally recommended that you try and settle
an insurance claim directly with your insurance company before you hire a public insurance adjuster.
Your insurance company provides an adjuster to you at no charge. If you use the insurance company’s
adjuster, you still have the right to separately hire a public adjuster to help you. Public adjusters are paid
a fee or a percentage of your claim. It is important that you understand what the fees are and how they
are calculated before you hire a public adjuster. It is always a good idea to rely on referrals from friends
and family to determine which public adjusters are legitimate. If you decide to hire a public adjuster, do
so in writing and make sure that they are licensed. Call the California Department of Insurance (CDI) at
(800) 967-9331 or access the CDI’s website at http://www.insurance.ca.gov for licensing verification and other
information regarding public adjusters. You can also file a complaint at the website or by calling the CDI’s
consumer hotline at (800) 927-4357.

Morrison & Foerster LLP, Helping Handbook, For Individuals and Small Businesses Affected by the 2008 Southern California Wildfires, Pg. 65

If an insurance company is not honoring the policy after negotiations by the policyholder, it is much better to find an attorney who specializes in insurance bad faith who may charge the policyholder a lot less and do a lot more than a public adjuster.  I do not practice  insurance bad faith law, but I was impressed with some of the attorneys that handled bad faith claims after the Old Fire.

The second thing I learned is that you have to analyze your insurance company and your policy, including exclusions, before a disaster.  The way a company treated policyholders poorly made me switch to another company.  I  requested a larger policy limit with my new insurance company which covered the rebuilding of my house.  Of course, after a fire is not the time to change the policy.

The last thing I learned is that it is difficult to inventory your belongings after a disaster.  For one, there is the grief associated with losing your possessions, and there are too many details that you cannot remember.   If you can, inventory your personal property before a disaster, and keep a copy of the list (and pictures and video) off-site.

The three biggest problems the Old Fire victims I assisted had were with their insurance company, then with their contractors or public adjusters,  then with their mortgage companies.  Some were underinsured, some were uninsured.

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.

Address: 300 E. State St. #517
Redlands, CA 92373
Telephone: (909) 296-6708

California Health and Safety Code Section 17980.7(c) Receiverships

By Michael Reiter, Attorney at Law

The California Health and Safety Code section 17980.7(c) receivership is a unique code enforcement tool, that should strike fear in the hearts of any property owner. The receiver, if appointed,

California Health & Safety Code section 17980.7(c) specifically authorizes a court to appoint a receiver over a substandard property if the property owner has failed to comply with a notice or order to repair issued by a local agency.  The receiver oversees the rehabilitation of substandard properties if the property owner has failed to comply with an order or notice to repair issued by a local code enforcement agency pursuant to Health & Safety Code Section 17980.6.

Section 17980.6 allows a local agency to issue an order or notice to a property owner to repair a building if  the building is a nuisance or is maintained in violation of the State Building Standards Code or similar State Law, or any provision of a local ordinance that is similar to that part of the Health and Safety Code. and the a violation and the extent and nature of the violations are such that “the health and safety of residents of the public is substantially endangered.”  If the owner does not correct the condition of the property after having a reasonable opportunity, after the notice or order is issued, Section 17980.7(c) authorizes the enforcement agency to petition the court for the appointment of a receiver to oversee the management, repair and rehabilitation of the property.  Section 17980.7 provides, in pertinent part that:

If the owner fails to comply with the terms of the order or notice pursuant to Section 17980.6, the following provisions shall apply: . . . “(c) The enforcement agency . . . may seek and the court may order, the appointment or a receiver for the substandard building pursuant to this subdivision.”

Appointment of the receivership petition must be personally served on all persons with a recorded interest in the property at least three (3) days prior to the filing of the Petition.  Health & Safety Code section 17980.7(c).

Section 17980.7 provides that in determining whether to appoint a receiver, “the court shall consider whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation.”

Pursuant to Section 17980.7(c)(4), a city can request that the court appoint a  receiver to oversee the rehabilitation of a substandard building and grant the receiver the following powers and duties:

  • to take full and complete control of the Subject Property;
  • To manage the Subject Property and pay operating expenses, including taxes, insurance, utilities, general maintenance and debt secured by the property;
  • To secure a cost estimate and construction plan from a licensed contractor and enter into contracts for repairs necessary to correct the conditions cited in the notice to repair;
  • To enter into contracts and employ a licensed contractor as necessary to correct the conditions;
  • To collect all rents and income from the Subject Property, and use those funds to pay for the rehabilitation work; and
  • To borrow funds to pay for the rehabilitation work and relocation benefits, and to secure that debt with a recorded lien on the Subject Property for any amounts borrowed.

In addition, Section 17980.7(c)(4)(H) provides that a receiver shall have all of the powers granted to receivers under Code of Civil Procedure section 568.  Section 568 provides that a receiver has broad authority, under the control of the appointing court, “generally to do such acts respecting the property as a court may authorize.”

A city may ask for an order prohibiting the owner from interfering with the receiver.  Section 17980.7(c)(3) provides that “if a receiver is appointed, the owner and his or her agent or the substandard building shall be enjoined from collecting rents from the tenants, interfering with the receiver in the operation of the substandard building, and encumbering or transferring the substandard building or real property upon which the building is situated.”

The receiver may be authorized to borrow funds to finance costs incurred during the receivership, including but not limited to property management and maintenance expenses, rehabilitation costs, and the receiver’s fees.  Health & Safety Code section 17980.7(c)(4)(G).  The receiver will borrow funds by issuing “receiver’s certificates” to project lenders.  The certificates will act as both promissory notes to evidence the debts and as deed of trust to secure repayment of the debts.  The receiver’s certificates will become recorded first liens on the property with priority over all other preexisting financing to the property, since lenders are unlikely to finance rehabilitation projects unless their security is in the most senior position.

A city will request that the amount disbursed under the certificates, along with interest, shall be immediately due and payable upon completion of the receiver’s duties with respect to rehabilitation of the Subject Property.  If the debt is not satisfied (either by the property owner securing permanent secured financing or from some other source), the receiver or the holder of the certificates shall be authorized to apply to this court, on notice and hearing, to sell the Subject Property free and clear of all subordinate liens and encumbrances pursuant to Code of Civil Procedure section 568.5.  Under the terms of the receiver certificate, this sale will be held as a publicly-noticed auction in the same manner as a foreclosure sale under a judgment lien. The Health & Safety Code is silent as to the method of foreclosing on the lien of the receiver’s certificates.  The City believes that the judgment lien sale process is the fairest and most expeditious process for selling the property following a failure by the owner to satisfy the certificates.  See Code of Civil Procedure section 568.5, section 701.510, et seq.  Moreover, the holder(s) of the certificates would be permitted to credit bid at this sale.  The proceeds of the sale will go first to pay the debt evidenced by the certificate, second to pay subordinate debts and third to the property owner.  See Code of Civil Procedure section 701.810. The sale would be final when confirmed by the court.

Any property owner should heed the words of the California Supreme Court:

Examination of the legislative intent underlying these statutes leads us to conclude that an enforcement agency’s failure to fully comply with the requirements specified in section 17980.6 does not necessarily invalidate a receiver’s appointment under section 17980.7, and that the particular instances of noncompliance here did not invalidate the receivership orders on appeal. We also find that, in view of all the circumstances presented, the trial court below acted well within its discretion in authorizing the receiver to forgo rehabilitation of the substandard property at issue and to instead contract for demolition.  City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 913.

A property owner, and anyone else with an interest in the property, facing a receivership needs to speak to an attorney immediately.  It is a drastic remedy for what sometimes already is a drastic situation.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

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

Government Code section 6254.21 Being Used to Deny San Bernardino County Property Tax Information Over the Internet

By Michael Reiter, Attorney at Law

If you ever have searched the San Bernardino County Tax Collector’s database for property tax information, which also has relatively current property ownership and other information (including finding Assessor Parcel Numbers (APNs)  from street addresses, and Assessor Parcel Maps, you might be confronted with this warning:

Please Note – We no longer display addresses on this page per CA. Govt. Code Sect. 6254.21 If you need assistance determining the correct parcel number please call the County of San Bernardino Assessor’s Office at (909) 387-8307.”
Back when I was a Deputy City Attorney for the City of San Bernardino, the site used to give street addresses, and it was a great resource.  Then, the notice displayed above was posted.   If you need an address for an APN, you can call the Assessor’s Office, and eventually, someone who will give you their first name, but not their last, will tell you an address.  Similarly, if you need to know the mailing address (where tax bills are sent), they will give that to you over the phone, too.
The Government Code section posted above is in the California Public Records Act.  Does the section say that counties cannot display addresses on tax bills on the internet?
Government Code section 6254.21 reads, in its entirety:

(a) No state or local agency shall post the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual.

(b) No person shall knowingly post the home address or telephone number of any elected or appointed official, or of the official’s residing spouse or child, on the Internet knowing that person is an elected or appointed official and intending to cause imminent great bodily harm that is likely to occur or threatening to cause imminent great bodily harm to that individual. A violation of this subdivision is a misdemeanor. A violation of this subdivision that leads to the bodily injury of the official, or his or her residing spouse or child, is a misdemeanor or a felony.

(c) (1) (A) No person, business, or association shall publicly post or publicly display on the Internet the home address or telephone number of any elected or appointed official if that official has made a written demand of that person, business, or association to not disclose his or her home address or telephone number.

(B) A written demand made under this paragraph by a state constitutional officer, a mayor, or a Member of the Legislature, a city council, or a board of supervisors shall include a statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.

(C) A written demand made under this paragraph by an elected official shall be effective for four years, regardless of whether or not the official’s term has expired prior to the end of the four-year period.

(D) (i) A person, business, or association that receives the written demand of an elected or appointed official pursuant to this paragraph shall remove the official’s home address or telephone number from public display on the Internet, including information provided to cellular telephone applications, within 48 hours of delivery of the written demand, and shall continue to ensure that this information is not reposted on the same Internet Web site, subsidiary site, or any other Internet Web site maintained by the recipient of the written demand.

(ii) After receiving the elected or appointed official’s written demand, the person, business, or association shall not transfer the appointed or elected official’s home address or telephone number to any other person, business, or association through any other medium.

(iii) Clause (ii) shall not be deemed to prohibit a telephone corporation, as defined in Section 234 of the Public Utilities Code, or its affiliate, from transferring the elected or appointed official’ s home address or telephone number to any person, business, or association, if the transfer is authorized by federal or state law, regulation, order, or tariff, or necessary in the event of an emergency, or to collect a debt owed by the elected or appointed official to the telephone corporation or its affiliate.

(E) For purposes of this paragraph, “publicly post” or “publicly display” means to intentionally communicate or otherwise make available to the general public. (2) An official whose home address or telephone number is made public as a result of a violation of paragraph (1) may bring an action seeking injunctive or declarative relief in any court of competent jurisdiction. If a court finds that a violation has occurred, it may grant injunctive or declarative relief and shall award the official court costs and reasonable attorney’s fees. A fine not exceeding one thousand dollars ($1,000) may be imposed for a violation of the court’s order for an injunction or declarative relief obtained pursuant to this paragraph. (3) An elected or appointed official may designate in writing the official’s employer, a related governmental entity, or any voluntary professional association of similar officials to act, on behalf of that official, as that official’s agent with regard to making a written demand pursuant to this section. A written demand made by an agent pursuant to this paragraph shall include a statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.

(d) (1) No person, business, or association shall solicit, sell, or trade on the Internet the home address or telephone number of an elected or appointed official with the intent to cause imminent great bodily harm to the official or to any person residing at the official’s home address. (2) Notwithstanding any other law, an official whose home address or telephone number is solicited, sold, or traded in violation of paragraph (1) may bring an action in any court of competent jurisdiction. If a jury or court finds that a violation has occurred, it shall award damages to that official in an amount up to a maximum of three times the actual damages but in no case less than four thousand dollars ($4,000).

(e) An interactive computer service or access software provider, as defined in Section 230(f) of Title 47 of the United States Code, shall not be liable under this section unless the service or provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm to an elected or appointed official.

(f) For purposes of this section, “elected or appointed official” includes, but is not limited to, all of the following: (1) State constitutional officers. (2) Members of the Legislature. (3) Judges and court commissioners. (4) District attorneys. (5) Public defenders. (6) Members of a city council. (7) Members of a board of supervisors. (8) Appointees of the Governor. (9) Appointees of the Legislature. (10) Mayors. (11) City attorneys. (12) Police chiefs and sheriffs. (13) A public safety official, as defined in Section 6254.24. (14) State administrative law judges. (15) Federal judges and federal defenders. (16) Members of the United States Congress and appointees of the President.

(g) Nothing in this section is intended to preclude punishment instead under Sections 69, 76, or 422 of the Penal Code, or any other provision of law.

 

Thus, we apprehend the 1998 enactment [section 6254.21]  as having been intended to prevent public agencies from posting on their public websites any list or directory of public officials’ home addresses and telephone numbers, without first obtaining each official’s written permission to be included in the listing. This apparent intent informs our conclusion.
So opined the California Attorney General in Opinion No. 06-802, May 20, 2008, 91 Ops. Cal. Atty. Gen. 19.  However, the Attorney General, perhaps because of the more limited question the Office was asked to answer, opined:
We therefore conclude that, in the circumstances presented here-that is, where a county maintains a comprehensive database of property-related information that may incidentally contain the home addresses and telephone numbers of persons who are elected or appointed public officials, but who are not identifiable as such from the data-Government Code section 6254.21(a) does not require the county to obtain permission from those officials before transmitting the database over a limited-access network, such as an “intranet,” “extranet,” or “virtual private network.

A city attorney who shall not be named, who liked to say that an opinion of the California Attorney General is just “one attorney’s opinion.”   However, I think this is the correct interpretation of the statute.

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.

Michael Reiter, Attorney at Law

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

The San Bernardino City Attorney’s Office

By Michael Reiter, Attorney at Law

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

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

By Michael Reiter, Attorney at Law

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.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

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

How to Become a California Municipal Lawyer

How does one become a municipal attorney in California?  There are a variety of paths to doing so.  Municipal Law has its niches, but it also has one of the broadest practices possible.  As the City Attorney of a City, you are expected to be a generalist.  You have to know a little of everything.  As a subordinate to the City Attorney, you can also be a generalist, but typically, you focus on one or a few areas of the law.
Municipal lawyers can be employed in-house in a City Attorney’s Office, or work for a municipal law firm or be a sole practitioner.
You do not necessarily have to work for a City Attorney’s Office or a municipal law firm as a law student.  However, from personal experience, it helps you see what a City does on a day-to-day basis.  I worked as a clerk in the City of Santa Clara’s City Attorney’s Office in the summer after my first year at Santa Clara University School of Law.  I filed papers in Santa Clara Superior Court and did other office tasks.  At the City Attorney’s Office in Redlands, I supervised a few interns from La Verne.  I helped supervise an intern as a Deputy City Attorney for the City of San Bernardino.  She was a certified law student and she tried one of my infraction cases as a 3rd year law student.  I would recommend that program to anyone interested in trial work.
That program is formally called the Practical Training of Law Students.  I did not do it when I was a law student as I was preparing to become a transactional intellectual property attorney.  Instead, I interned at an educational software company in the Silicon Valley.  That served me well with both my current small business clients and with my municipal law clients.   Cities have large appetites for contracts.  Certain clauses work for any client: attorneys’ fees clauses, choice of law and venue, indemnification clauses, insurance requirements and other similar clauses.  A city in California is a municipal corporation.  It has many of the same needs as any large business.
Is there a particular course of study required to become a municipal lawyer?  Not that I have ever seen.  I know of no municipal law certificate or other such program, and a very cursory search found no such certificate in California.  However, the traditional first year courses are very helpful year after year: Real Property, Criminal Law, Civil Procedure, Contracts, Torts, and Legal Research and Writing.    Constitutional Law is very useful.
You never know what kind of law you might be doing for a City, particularly if you are a Deputy City Attorney for a medium or large city.  As a Deputy City Attorney and an Assistant City Attorney, I dealt with the following diverse set of circumstances: set and try a Vickers hearing; fight a pro se attorney in Federal court spouting constitutionalist nonsense; attempt to get a deputy public defender disqualified because their spouse once prosecuted their client; get a Superior Court clerk to file an answer and a demurrer at the same time (the Code of Civil Procedure allows it, but it is not seen in nature often), convince a municipal client to get a blanket performance license; write a state assembly bill that united both the disabled and slumlords in opposition; attempt to get a restraining order against a man threatening a code enforcement officer; obtain orders to destroy firearms, defend Pitchess Motions, write agreements to transfer property purchased with Federal funds to a non-profit, help lobbyists organize public meetings in Washington D.C., brief the Ninth Circuit Court of Appeals, create a process to protest County tax sales, and more than I can possibly remember.  That’s not even the bread-and-butter of municipal law.
The bread-and-butter is advising commissions, boards, and the council, municipal code prosecutions, defending cities in civil cases, advising departments and staff.  Some of it can be exciting; some is very, very dry.  As I said, some people specialize, especially in very large offices or firms.  You can be municipal bond counsel, a public works attorney, a redevelopment attorney, land use attorney, or a city prosecutor.
So how do you become a California Municipal Lawyer?  Some start out of law school, some come in after long careers elsewhere.  A good municipal attorney is a good attorney.  A good attorney can pick up the specifics on the job.  There are many paths, but to me, public law gives an attorney so many options.  If you are interested in municipal law, feel free to contact me.
The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.
A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

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

By Michael Reiter, Attorney at Law

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

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

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

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

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

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

 

Trade Dress Confusion: In-N-Out versus Five Guys: A few more thoughts

By Michael Reiter, Attorney at Law

I visited the Five Guys in Redlands (technically, in the Donut Hole (unincorporated County of San Bernardino outside the City of Redlands’ sphere of influence), in the Redlands Town Center, near Nubi).  As a follow up to this post, I want to reiterate that no true Southern California will ever be confused between the trade dress of the two restaurants or the product.  Five Guys is no In-N-Out.  In-N-Out is cleaner, In-N-Out is simpler, In-N-Out’s food is better, In-N-Out’s food is much less expensive, and you can get In-N-Out in a drive through, and if you have a peanut allergy, In-N-Out is the way to go.

One of Five Guy’s founders, Jerry Murrell, told Inc. Magazine that the “burgers are made to order. That’s why we can’t do drive-thru’s [sic]– it takes too long.”  I’m glad the Snyders never came to that conclusion.  The only In-N-Out without a drive-through, I believe, is in Fisherman’s Wharf in San Francisco.  I can speculate on the legal reasoning and land use reasoning  for that decision, but I could find no source to confirm the reason.

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) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

How can code enforcement laws be changed in San Bernardino and Riverside Counties?

By Michael Reiter, Attorney at Law.

How can code enforcement laws be changed in San Bernardino County and Riverside County?   There are legal and political answers to this question.

Ordinances can be adopted, amended or repealed by City Councils or Town Councils.  The exact manner can depend on the composition of the Council and whether it is a general law or charter law municipality.  Similarly, an election might be held to amend or repeal a particular ordinance.  The processes also depend on whether the municipality is governed by general law or governed by a charter.  That is the simple legal answer.

The political answer is that either an elected official, or perhaps an appointed official like a city manager, has to propose a new or modify or repeal and existing ordinance by following the process in the Government Code or the City Charter, as applicable.  Similarly, if elected officials will not take action, individuals or groups can qualify an initiative or referendum to change code enforcement laws.  That is the simple political answer.

When I was a Deputy City Attorney for the City of San Bernardino, someone in the north end of town received a citation for not taking his trash cans in promptly.  This was before the implementation of administrative citations.  He complained that he just wanted to pay the fine and not appear in court on a $100 citation.  I told him that I understood, but that it was a political issue, and that I did not have the authority, as a city lawyer, to change the ordinance.

The first step I would take if I wanted to change an existing code enforcement law would be to contact my city council member.  If I lived in a city with wards, I would contact that city council member.  If I lived in a city with at-large council members, I would call the council member I was most familiar.  If that didn’t work, I would call the Mayor.  If that did not work, I would then consider an initiative or referendum.

Should you hire a lawyer to have the municipal code changed?  Sometimes that is a cost-effective solution, or if not cost-effective, a way to change something you want changed.  However, no attorney will guarantee that you will get your money’s worth. Discuss it with an attorney skilled in dealing with municipalities.

There are two, more complex, legal and political ways that code enforcement laws can change in California.  Get the California Legislature to change state law preempting local law, or challenge an ordinance in court.  Most municipal ordinances are constitutions, but occassionlly,a court rules an ordinance is preempted by state law, outside the local agencies’ powers, or violates the United States or California constitution.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.

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

The Religous Land Use and Institutionalized Persons Act (RLUIPA) and Zoning in the Inland Empire

By Michael Reiter, Attorney at Law

What is the Religious Land Use and Institutionalized Persons Act (RLUIPA)?

RLUIPA was enacted by Congress in 2000.  RLUIPA states, regarding land use,  that the government may not “impose or implement a land use regulation in a manner that imposes a substantial burden” on religious exercise unless the government demonstrates that the imposition of that regulation (and its accompanying “burden”) is in furtherance of a compelling governmental interest,” and is the “least restrictive means of furthering that interest.”  42 United States Code section 2000cc.  RLUIPA broadly defines the term “religious exercise,” to include “the use, building, or conversion of real property for the purpose of religious exercise.”  42 United States Code section 2000cc-5(7)(B).   The Ninth Circuit Court of Appeals held that “for a land use regulation to impose a ‘substantial burden’ it must be ‘oppressive’ to a ‘significantly great’ extent.  That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.”  San Jose Christian College v. City of Morgan Hill (9th Cir. 2004) 360 F.3d 1024, 1034.

RLUIPA also states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  42 United States Code section 2000cc(b)(1).  The “equal terms” section requires the government to treat religious assembly uses in the same way it would a non-religious use.

RLUIPA adds a layer of federal regulation to local Inland Empire government’s land use authority.  In discretionary land use decisions involving religious uses, local governments need to be familiar with the requirements of RLUIPA.  When I was Assistant City Attorney for the City of Redlands, RLUIPA was an issue that arose from time to time in City Council and Planning Commission land use decision-making.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.
A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708