Is Devore in the City of San Bernardino? Or, how to find if San Bernardino County land is incorporated or unicorporated?

By Michael Reiter, Attorney at Law

One of the highest keyword requests regarding the search term “San Bernardino” is finding out what geographic locations are included in a particular jurisdiction. One such search is “Is Devore in the City of San Bernardino?”   Why would someone want to know if a particular place is in a certain jurisdiction?  Here are some reasons:

1. The amount of taxes.  Different locations in California can have different sales tax rates.  At this moment, the City of San Bernardino’s sales tax rate is 9%.  The City of Redlands’ rate is 8.75%  Similarly,the amount of transient occupancy tax.  This is sometimes called a “bed” tax, the amount a hotel or motel collects based on the lodging’s nightly rate.   There are often different rates between cities, and between incorporated areas and unincorporated areas.

2. Liability.  If someone tripped and fell on a sidewalk, or hit a pothole, that person would need to know which entity to file a government claim with, and should the claim be rejected, against which entity to sue in court.  Of course, sometimes it does not involve a government entity, and sometimes it involves more than one entity, so knowing where the public property is located is only part of the inquiry.  Government Code section 835 (discussed briefly here) requires ownership or control of the property.  Just because property is within an entity does not mean it belongs to the city or county.  It could belong to private entities or to another public agency, like a school district, a flood control district, a water agency, or a combination of agencies and private ownership.  When I was a Deputy City Attorney for the City of San Bernardino, I had a case where the location, according to conventional maps, was right on the border of the City of Highland and the City of San Bernardino.  When I was the Assistant City Attorney for the City of Redlands, I had a case that involved a City easement on Redlands Unified School District property, adjacent to private agricultural land.

3. Voting.  Obviously, someone cannot vote if they are not with the corporate limits of the municipality.

4. Business Licenses.

5. Which set of local laws apply.  This is important for land use, zoning and code enforcement law.

So, how do we find out if Devore is within the City of San Bernardino or unincorporated County of San Bernardino.   One good way used to be the website of the Local Agency Formation Commission of San Bernardino, commonly abbreviated as LAFCO (and pronounced Laugh Co).  LAFCOs are county-wide organizations governed by the Cortese-Knox-Hertzberg Local Government Act of 2000, found at Government Code section 56000, et seq.  However, LAFCO’s maps are currently unavailable as of this writing.  San Bernardino County LAFCO can tell you the jurisdiction or jurisdictions of a particular place.  An interested party can call them, or if you need a map, make a California Public Records Act request.  If an interested party makes a Public Records Act request, they should ask for a record.  Such as, “a map that shows the jurisdictional boundaries of x location.”  Remember, the California Public Records Act is for records, not for general information.  Agencies do not have to answer questions, though sometimes it is easier to do so and they will do so in lieu of producing a record.

That means that someone can try to find out by looking in the City of San Bernardino’s website, and the County of San Bernardino’s website.   On the City of San Bernardino’s website, we find the Ward map, which shows the current division of the City for each council member.   Devore is generally thought of being where the 215 and the 15 meet.  You can see on the Ward map that location is not in the City of San Bernardino.  If we are to believe Google Maps, which is far from determinative, it shows the shaded northwest border of the City of San Bernardino  a few parcels away from  Devore Road.

What about the County of San Bernardino?  The County has a Geographical Information Services (GIS) component to its Information Services Department.  I know I have used their mapping applications in the past, but they do not appear to be online at this time.

The short answer is, from my experience as a Deputy City Attorney in the San Bernardino City Attorney’s Office, from having gone to public school with people from Devore, and as a matter of common knowledge, Devore is in unincorporated San Bernardino County.

Copyright 2011 Michael Reiter, Attorney at Law

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

 

Trade Dress Confusion: In-N-Out versus Five Guys

I am a native of arguably the birthplace of fast food.  McDonalds was born on North E Street in San Bernardino, and Glenn Bell’s pre-Taco Bell restaurants started in San Bernardino.  I am very familiar with local Inland Empire chain (based in San Bernardino)  Baker’s Drive-Thru, as my office in the Redlands Executive Suites shares a parking lot.  Del Taco started in Yermo, and Carls Jr., Wienershnitzel and Jack in the Box all started in Southern California.  And of course, In-N-Out in Baldwin Park.

In today’s Los Angeles Times,on Page B-1 in an article by Sharon Bernstein is a discussion of  East Coast burger chain Five Guys moving directly into In-N-Out’s motherland.  I’ve long enjoyed  In-N-Out.  I’ll never forget visiting the store on Second Street in San Bernardino (which will soon move to Fifth Street in San Bernardino) after seeing the Cure at the Rose Bowl.  When I was an undergraduate at the University of California, Berkeley, we at least on one occasion drove to the only In-N-Out then in Northern California in Gilroy.  By the time I graduated law school at Santa Clara University School of Law, they started to open throughout the Bay Area.  I stumbled upon the City Council Meeting in Sunnyvale on cable television approving the Conditional Use Permit for the store in Sunnyvale, a City that did not want new drive-throughs.  One opened approximately 300 feet from my front door.  Alas, I had graduated from law school and soon moved back to the Inland Empire.  In the Inland Empire, long home of existing In-N-Out Burger restaurants, municipalities like the City of Highland and the City of Rialto seek new stores to help put them on the map.  When I was Assistant City Attorney for the City of Redlands, one former council member sometimes publicly wished aloud for an In-N-Out in Redlands.  I can second that motion.
I first stumbled across Five Guys in Northern Virginia in 2007.  The first thing I noticed is that it appeared to be taking the “look and feel” of In-N-Out with Five Guy’s distinctive red and white color scheme, including red and white checkerboard tiles.  I didn’t eat at a Five Guys until last year in a store near Biloxi, Mississippi.   There are some key differences between the quality of  the two, particularly the expanded menu at Five Guys.

The look and feel of a restaurant can be protected as “trade dress.”  This protection derives both from the Federal Lanham Act and common law trademark.  Trademarks registered by In-N-Out (found at the United States Patent and Trademark Office searching for “In-N-Out”), include the word mark In-N-Out for a variety of goods and services classes, the arrow and rectangle  found on their sign and packaging , and the “mark [comprising] a stylized rendering of a continous band of palm trees above several continuous wavy lines which suggest ocean waves.”

In-N-Out has always vigorously defended its trademarks in court and at the United States Patent and Trademark Office.  I remember a San Bernardino based chain called “Luv’m Burgers” which I was told was shut-down by In-N-Out a long time ago, though I was unable to find a trace of such a suit on the internet. In-N-Out has stopped people from using the mark “In-N-Out” in other trademark classes.   In-N-Out sued copycats, such as Nicky’s In-N-Out Gyros.  One of the key benefits of federal trademark registration is nationwide protection, even against the aforementioned Nicky’s, which was in Chicago.

In-N-Out also was able to get a temporary restraining order against Chadders, a Utah chain, for using some of In-N-Out’s federally-registered marks.  The order, which can be found , states in pertinent part:

“In-N-Out has federally registered trademarks in the names Protein® Style Burger, Animal® Style Burger, 3 x 3® Burger, 4x 4® Burger and Double Double®.2 In-N-Out claims, as its trade dress; simple red-and-white menu boards with a plain type font and red border and lettering, a red-and-white color scheme with yellow accents on the exterior and interior of its restaurant, including use on walls, tiles, and seating structures, a gray and white tile checkerboard floor in its interiors, exteriors with a “California” tile roof (featuring orangepavers), and employee uniforms with red aprons and red hats or visors. In-N-Out Burger serves food in what it alleges is a distinctive manner, which it alleges Chadders also uses.”  In-N-Out Burgers, A California Corporation v. Chadders Restaurant, et al., United States District Court for Utah, Central Division, 2:07-CV-394 TS, Memorandum Decision and Order, June 29, 2007 by U.S. District Court Judge Ted Stewart.  From the order, the Court granted the Temporary Restraining Order regarding the registered trademarks, but did not grant the Temporary Restraining Order regarding In-N-Out’s  trade dress claims.

The order focused on the following language from Clicks Billiards, Inc. v. Sixshooters, Inc.. 251 F.3d 1252, 1257-58 (9th Cir. 2001) : “To sustain a claim for trade dress infringement, [plaintiff] must prove: (1) that its claimed dress is nonfunctional; (2) that its claimed dress serves a source-identifying role either because it is inherently distinctive or has acquired secondary meaning; and (3) that the defendant’s product or service creates a likelihood of consumer confusion.”  I was unable to find if In-N-Out was able to succeed on the merits of the trade dress claims after the Temporary Restraining Order was denied in part.

However, there is a Youtube video which can help you make your own determination about In-N-Out’s trade dress claims against Chadders.

How about Five Guys?  If you search for “trade dress” “In-N-Out” and “Five Guys” in Google, you get others whose initial impression that Five Guy’s trade dress is an In-N-Out rip-off.   In this blog, the author states “I had time to soak in the red-and-white “trade dress” of In-N-Out, which reminded me a lot of the Johnny-come-lately look of Five Guys.”  In this comment on another site, the author says “Five Guys is no In-N-Out (ignoring the similarity in trade-dress), but their cheeseburger with the works and hot sauce ( which is more “tangy” than “hot” ) is outstanding.”

A plaintiff has to prove that the trade dress is non-functional.  In-N-Out’s red and white color scheme, including the checker scheme, with yellow accents is probably not functional.  You can have higher contrast color schemes for the function of readability.  I would argue that the color scheme does have a source identifying role.  The “likelihood of confusion” prong probably is not met, however, because even though people recognize that Five Guys is trying to be like In-N-Out, you know that a Five Guys is not an In-N-Out.   You can’t get a hot dog in In-N-Out, and hopefully, you never will be able to.  As soon as you see the peanuts in Five Guys, you know you’re not going to be able to order a Double Double Animal Style with a Neapolitan Shake and Fries Well.  The Five Guys I have seen are in strip malls, while almost all In-N-Outs have drive throughs.  Five Guys aren’t meticulously clean like an In-N-Out.  Anyone paying attention can tell the business model is different, too.  Five Guys franchises, and has expanded from its base almost as quickly as the ill-fated Krispy Kreme.  In-N-Out Burger  is still family owned, and has expanded slowly and cautiously (though you can argue the stand-alone Texas expansion may not be wise).  I think the lack of yellow in the scheme is a key difference.  Also, even though the comments above recognized the difference between the two chains despite the similarity of trade dress.  Yes, Five Guys is an imitator, but consumers can see that they are an obvious imitator.

Update 4/18/2011:

For those of you looking for the Redlands Five Guys, according to the Facts, it is opening on April 20, 2011 and is located at 10400 Alabama St. (in the Redlands Town Center).  I believe it is near Noodle 21.

The information you obtain at this blog is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law

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

San Bernardino Sun: 215 / 210 Interchange Dangerous

The Sun has an article posted on March 20, 2011 (and found at http://www.sbsun.com/news/ci_17659411?source=rss) stating that the transition from the southbound 215 to the eastbound 210 in the City of San Bernardino is dangerous, with the Sun stating that accidents have “skyrocketed.”   The 215 is currently being widened and construction can often limit lanes with k-rails.  The construction can change lanes from one day to the next.

A public entity, such as the State of California, Department of Transportation, also known as CalTrans)  may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability.

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 prior to the injury to take protective measures against the dangerous condition.  Government Code §§ 830, 835.

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