Filing Late Government Claims (Tort Claims) in California

By Michael Reiter, Attorney at Law

Generally government claims for personal injury and personal property damage are due with a public entity within six months of an incident, with some notable exceptions.

However, if a claimant fails to file a government claim within the sixth months, there is a procedure to file a late claim.

(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.

(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.

(c) In computing the one-year period under subdivision (b), the following shall apply:

(1) The time during which the person who sustained the alleged injury, damage, or loss as a minor shall be counted, but the time during which he or she is mentally incapacitated and does not have a guardian or conservator of his or her person shall not be counted.

(2) The time shall not be counted during which the person is detained or adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if both of the following conditions exist:

(A) The person is in the custody and control of an agency of the public entity to which a claim is to be presented.

(B) The public entity or its agency having custody and control of the minor is required by statute or other law to make a report of injury, abuse, or neglect to either the juvenile court or the minor’s attorney, and that entity or its agency fails to make this report within the time required by the statute or other enactment, with this time period to commence on the date on which the public entity or its agency becomes aware of the injury, neglect, or abuse. In circumstances where the public entity or its agency makes a late report, the claim period shall be tolled for the period of the delay caused by the failure to make a timely report.

(3) The time shall not be counted during which a minor is adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if the minor is without a guardian ad litem or conservator for purposes of filing civil actions. California Government Code section 911.4.

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) 798-3300

What Municipal (Local City and Town) Offices are Up for Election in San Bernardino County in November 6, 2012?

By Michael Reiter, Attorney at Law

In short, it is an election year for everyone except the City of San Bernardino.  Many local cities consolidate their election to either the Presidential election and the Congressional Midterm Elections, because it costs less.

Starting with the High Desert, the City of Adelanto is electing two Council Members; Apple Valley, two Town Council Members; Barstow is electing the Mayor, the City Clerk, City Treasurer, and two City Council Members, Hesperia, two Council Members, Needles is electing two Council Members and the Mayor, Twentynine Palms is electing two Council Members. Rounding out the High Desert is Victorville, electing three Council Members, and Yucca Valley electing two Town Council Members.
In the San Bernardino Mountains, the City of Big Bear Lake is electing two City Council Members

In the Southwest of San Bernardino County, Chino is electing two City Council Members, and Chino Hills, the same number.

In the East-end of San Bernardino, the City of Colton is electing City Council Members in two districts, 3 and 5; the City Clerk and City Treasurer, and the Blue Mountain City, Grand Terrace, is electing three Council Members.  Fontana, which either is the western part of the East Valley, or the Western part of the West-end, is electing two City Council members.  Highland is electing two Council Members, the adjoining City of Redlands has two Council Member seats up for election, and City Clerk and City Treasurer.  Rialto has a mayoral election, City Clerk, City Treasurer, and two Council Member seats.  Lastly, Yucaipa is electing three Council Members.

In the West-end, Montclair is electing two Council Members; Ontario is electing Mayor, City Clerk, City Treasurer, and two Council Members; Rancho Cucamonga, land of Victoria Gardens, is electing its City Clerk, City Treasurer, and two Council Members; Upland, is electing one Council Member, the Mayor and Treasurer.

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

City Attorneys of San Bernardino County Cities and Towns

By Michael Reiter, Attorney at Law

People are searching the Internet for a definitive list of City Attorneys in San Bernardino County and the Inland Empire.   Here is the information, which is current as of today (2/1/2012)  to the best of my knowledge.  Please note that I am not the City Attorney nor the Assistant City Attorney for any of these cities.

City of Adelanto:

 

Todd Litfin

Rutan & Tucker LLP

611 Anton Blvd. #1400

Costa Mesa, CA  92626

 

Town of Apple Valley:

 

John E. Brown

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario, CA 91764

 

City of Barstow:

 

Teresa Highsmith (Interim City Attorney)

Colantuono & Levin

300 S. Grand Ave. Ste 2700

Los Angeles CA 90071

 

City of Big Bear Lake:

 

Stephen Dietsch

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario CA 91764

 

City of Chino:

 

Jimmy L. Gutierrez

12616 Central Ave
Chino, CA 91710

 

City of Chino Hills:

 

Mark D. Hensley

Jenkins & Hogin LLP
Manhattan Towers
1230 Rosecrans Ave #110
Manhattan Beach, CA 90266

 

City of Colton:

 

Dean Derleth

Best Best & Krieger LLP
300 S Grand Ave 25th FL
Los Angeles, CA 90071

 

City of Fontana:

 

Clark Alsop

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario, CA 91764

 

City of Grand Terrace:

 

Richard L. Adams, II

Jones & Mayer

3777 N. Harbor Blvd.

Fullerton CA 92835

 

City of Hesperia:

 

Eric Dunn

Aleshire & Wynder LLP
18881 Von Karman Ave #400
Irvine, CA 92612

 

City of Highland:

 

Craig Steele

Richards Watson & Gershon

355 S. Grand Ave., 40th Floor

Los Angeles, CA 90071-3101

 

City of Loma Linda:

 

Richard E.  Holdaway

Robbins & Holdaway
201 W “F” St
Ontario, CA 91762

 

City of Montclair:

 

Diane E. Robbins

Robbins & Holdaway
201 W “F” St
Ontario, CA 91762

 

City of Needles:

 

John Pinkney

Slovak, Baron & Empey LLP
1800 E. Tahquitz Canyon Way
Palm Springs, California 92262

 

City of Ontario:

 

John E. Brown

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario, CA 91764

 

City of Rancho Cucamonga:

James L. Markman

Richards Watson & Gershon
P O Box 1059
Brea, CA 92822-1059

 

City of Redlands:

Daniel J. McHugh

P.O. Box 3005

Redlands, CA 92373

 

City of Rialto:

Jimmy L. Gutierrez

12616 Central Ave
Chino, CA 91710

 

City of San Bernardino:

James F. Penman

300 North D Street

Sixth Floor

San Bernardino, CA 92418

 

City of Twentynine Palms:

Patrick Munoz

Rutan & Tucker

P.O. Box 1950

Costa Mesa, CA 92628-9990

 

City of Upland:

William P. Curley III

Richards Watson & Gershon
P O Box 1059
Brea, CA 92822-1059

 

City of Victorville:

Andre de Bortnowsky

Green, de Bortnowsky & Quintanilla

23801 Calabasas Rd. #1015

Calabasas, CA 91302-1595

 

City of Yucaipa:

 

David Snow (Interim City Attorney)

Richards Watson & Gershon

355 S. Grand Ave., 40th Floor

Los Angeles, CA 90071-3101

 

Town of Yucca Valley:

 

Lona Laymon

Aleshire & Wynder LLP
18881 Von Karman Ave #400
Irvine, CA 92612

 

Copyright 2012 Michael Reiter, Attorney at Law

California Welfare and Institutions Code section 8102 Return of Firearms Petition

By Michael Reiter, Attorney at Law.

One of the more unusual procedures that sets Municipal Law from the ordinary practice of law is the petition process set forth in Section 8102 of the California Welfare and Institutions Code. This procedure has to do with the return or destruction of firearms seized from people subject to a Welfare and Institutions Code section 5150 hold.   These are commonly called Return of Firearms Petitions.  California Welfare and Institutions Code section 8102 reads in pertinent part:

(b) Upon confiscation of any firearm or other deadly weapon from a person who has been detained or apprehended for examination of his or her mental condition, the peace officer or law enforcement agency shall notify the person of the procedure for the return of any firearm or other deadly weapon which has been confiscated.

Where the person is released, the professional person in charge of the facility, or his or her designee, shall notify the person of the procedure for the return of any firearm or other deadly weapon which may have been confiscated.
Health facility personnel shall notify the confiscating law enforcement agency upon release of the detained person, and shall make a notation to the effect that the facility provided the required notice to the person regarding the procedure to obtain return of any confiscated firearm.
(c) Upon the release of a person as described in subdivision (b), the confiscating law enforcement agency shall have 30 days to initiate a petition in the superior court for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others, and to send a notice advising the person of his or her right to a hearing on this issue. The law enforcement agency may make an ex parte application stating good cause for an order extending the time to file a petition. Including any extension of time granted in response to an ex parte request, a petition must be filed within 60 days of the release of the person from a health facility.
(d) If the law enforcement agency does not initiate proceedings within the 30-day period, or the period of time authorized by the court in an ex parte order issued pursuant to subdivision (c), it shall make the weapon available for return.
(e) The law enforcement agency shall inform the person that he or she has 30 days to respond to the court clerk to confirm his or her desire for a hearing, and that the failure to respond will result in a default order forfeiting the confiscated firearm or weapon. For the purpose of this subdivision, the person’s last known address shall be the address provided to the law enforcement officer by the person at the time of the person’s detention or apprehension.
(f) If the person responds and requests a hearing, the court clerk shall set a hearing, no later than 30 days from receipt of the request. The court clerk shall notify the person and the district attorney of the date, time, and place of the hearing.

(g) If the person does not respond within 30 days of the notice, the law enforcement agency may file a petition for order of default.

That’s basically the procedure. Each entity and court implements the section a little differently.  In the  City of  San Bernardino, the petition is in the name of the Chief of Police and filed by the City Attorney’s Office. Section 8102(f) states that the Clerk shall notify the person and the district attorney, which suggests that the District Attorney can file the petition.
For example, here is the minute order from a petition wherein the City of San Bernardino sought a judicial determination on the return of weapons:

ACTION CAME ON FOR STATUS HEARING ON PETITION SEEKING JUDICIAL DETERMINATION RE: RETURN OF
FIREARMS OR DEADLY WEAPONS (W&I SECTION 8102).

THE COURT FINDS THAT NO ANSWER HAS BEEN FILED; THAT THE RESPONDENT HAS NOT CONTACTED THE CITY
ATTORNEY; AND THAT THE RESPONDENT DID NOT APPEAR IN COURT TODAY.

THE COURT ORDERS A DEFAULT JUDGMENT ENTERED ON BEHALF OF THE PETITIONER, CITY OF SAN
BERNARDINO, AND AGAINST THE RESPONDENT, [Omitted]

THE COURT FURTHER ORDERS WEAPON(S) DESTROYED PURSUANT TO THE LAW.
STAGE AT DISPOSITION: ALL OTHER JUDGMENTS BEFORE TRIAL.
CASE DISPOSITIONED BY JUDGMENT
ACTION – COMPLETE

In this case, the petitioner did not respond, and the court ordered the weapon(s) destroyed pursuant to law.  You can find the City of San Bernardino’s cases by searching for the name of the police chief or past police chiefs.

In Redlands, when I was Assistant City Attorney, this situation only came up once when the Police Department, in the name of the People of the State of California, tried to do it by themselves, and brought it to the City Attorney’s Office when the respondent responded.

The City of Ontario does it a little differently.  Those cases are filed in the name of the Ontario Police Department versus the gun owner.   The District Attorney is added as a third party, but the petition is prosecuted by the City Attorney.

Here is an example of a minute order in a similar default hearing involving the Ontario Police Department:


THE SAID DEADLY WEAPON IS SUBJECT TO DISPOSITION PURSUANT TO SECTIONS 12028 AND 12032 OF THE
PENAL CODE.
STAGE AT DISPOSITION: ENTRY OF JUDGMENT – DEFAULT JUDGMENT BY COURT BEFORE TRIAL (CIV)
DISPOSITION: ENTRY 0F JUDGMENT DEFAULT BY COURT BEFORE TRIAL

Even in San Bernardino County and San Bernardino County Superior Court, you can see there are different ways that the courts handle these petitions, and different ways that city attorneys, and others, file these petitions.

The appeals courts give other variations of this theme.  In the People of the State of California v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, the Ventura County District Attorney’s Office filed the petition in the name of the People, and sued the property in question like in an asset forfeiture case.

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. #517
T: (909) 296-6708

The City Attorney of the City of Ontario, California

 

After yesterday’s post regarding the City of Riverside and the Riverside City Attorney’s Office, I figured I would delve into another large Inland Empire City.  I was a Deputy City Attorney for the City of San Bernardino for almost five years, and the Assistant City Attorney for the City of Redlands for four and a half years.  Those are two of the four in-house City Attorney’s Offices in the Inland Empire.  The City of Riverside and the City of Moreno Valley are the other two.  All other cities and towns use outside City Attorneys, even really large full-service cities.  As the economy betters and cities mature, I think you will see more cities with in-house City Attorneys, because it can be more cost-effective, particularly in full-service cities.

The Ontario Municipal Code does not specifically have a section on the duties of the City Attorney (or subordinates like Assistants or Deputies), but there are mentions regarding the City Attorney’s duties, and stating that the City Manager does not have authority over the City Attorney.  Ontario Municipal Code section 2-3.107(b)(1).

Ontario is a general law city, and as such, follows the Government Code’s provisions regarding the City Attorney. A general law city may appoint a City Attorney.  Government Code section 36506.  The City Attorney “shall advise the city officials in all legal matters pertaining to city business.”  Government Code section 41801.  The City attorney “shall frame all ordinances and resolutions required by the legislative body.”  Government Code section 41802.  The City Attorney “shall perform other legal services required from time to time by the legislative body.”  With the consent of the District Attorney, a general law City Attorney can prosecute state law misdemeanors.  Government Code section 41801.5.  The City Attorney, acting as a criminal prosecutor, can issue subpoenas like the District Attorney.  Government Code section 41803.7.

Government Code section 41804 sets the compensation of the City Attorney as follows: “The city attorney shall receive such compensation as is allowed by the legislative body.”  This can be done by ordinance or resolution.  Government Code section 36506.

The current City Attorney of the City of Ontario, California  is John E. Brown.  According to the 2010-2011 Adopted City Budget, the City Attorney’s budget was $389,900.  It does not break it down further.  There is also $1,000 budgeted for Legal Services for Street Light Maintenance Administration, $145,000 for Legal Services for Human Resources, $500 for Legal Services for Parkway Maintenance and Administration, $2,060 for process server expenses and court costs for Revenue Services, $15,000 for Legal Services for Information Technology, $197,600 for Legal Services for Development Administration, $5,405 for Legal Services for the Fire Department, $78,000 for Legal Services for the Police Department, Office of the Chief, $35,020 for Legal and consulting services for Police Records, $10,000 for Legal Services for Community & Public Services, $11,630 for Legal Services for Municipal Utilities Administration, $350,000 for Legal Services “Ongoing pollution litigation and Chino Basin issues” for Water Administration, $300,000 for Legal Services “Ontario Airport Plume” for Sewer Administration, $6,000 for Legal Services for Solid Waste, $15,000 for Legal Services for Water Capital/Utilities, $515 for Legal Services for Utility Equipment Services, $1, 500 for Legal Services, “court costs” for Utility Vehicle & Equipment Repair, $50,000 for Legal Services “Review of various agency acquisitions documents and contracts” for Housing, $322,400 for Legal Services for Code Enforcement Admin, $37,824 for administrative support for Code Enforcement Attorney, $4,500 for Legal Services “Review of subrecipient contracts and other issues” for CDBG Grants Administration, $2,000 for Legal Services for Admin-HPRP, $10,000 for Legal Services for HOME grants, $5,000 for Legal Services for Ideal Mobile Home Park, $2,850 for Oakland and Mission Development, $1,000 for Legal Services, “Review of contracts and agreements” for the Quiet Home Program (related to the airport), $4,229 for Legal Services for the Quiet Home Program (different line item, noise insulation), $5,000 for Legal Services for the Quiet Home Program for Property Acquisition, $3,000 for Legal Services for the Quiet Home Program for Property Acquisition (different line item); $3,000 for Legal Services for the Quiet Home Program for noise insulation (yet another different line item), $5,000 for the Redevelopment Agency for Legal Services, $75,000 for Legal Services for “Assistance with purchase and sale, disposition and development, owner participation, professional services, and other agreements” for the Redevelopment Agency, $50,000 for “Assistance with purchase and sale, disposition and development, owner participation, professional services, and other agreements” for Redevelopment Project Area 2, $75,000 for Legal Services for “Assistance with purchase and sale, disposition and development, owner participation, professional services, and other agreements” for Redevelopment Project Area 1, $75,000 for Legal Services for “Assistance with purchase and sale, disposition and development, owner participation, professional services, and other agreements” for the Cimmaron Project Area, $50,000 for Legal Services for “Assistance with purchase and sale, disposition and development, owner participation, professional services, and other agreements” for the Center City Project Area, $10,000 for Legal Services for “Assistance with purchase and sale, disposition and development, owner participation, professional services and other agreements” for the Guasti Project Area, $80,000 for Legal Services for “Assistance and review of contracts and agreements” for the Ontario Housing Agency, $10,000 for Legal Services for Downtown Senior Project, and $50,000 for Legal Fees for the Ontario Convention Center Executive Department.

This does not include legal fees associated with workers’ compensation or liability.   Each department pays a certain amount of money to risk management/liability.  It does not appear that the City Attorney’s law firm is used in liability cases, such as motor vehicle accidents.  That may be covered by insurance (other than self-insurance).

Especially with the City Attorney’s election in the City of San Bernardino, it is important to compare apples with apples.  You may not be able to compare an in-house City Attorney’s Office with an arrangement of an outside contract city attorney’s office, at least on a dollar to dollar comparison.  This is because the level of service provided by the City Attorney might be different, the differences between cities (beyond population, Moreno Valley has an in-house  City Attorney, but is not a full service city), and other differences.

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.

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.

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

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