Best Best & Krieger News Feed Best and Krieger is a Full Service Law Firmen-us23 Sep 2014 00:00:00 -0800firmwise and Referendums<p>BB&amp;K Partner Kara Ueda will be among the presenters at the League of California Cities&rsquo; New Law &amp; Elections Seminar<span>, which will be held Dec. 3-5, 2014. She will provide an overview of the initiative process, including the roles of city clerks, city attorneys, city councils and initiative proponents, as well as considerations for potential and actual litigation.</span></p> <p><b>When<br /> </b>Dec. 4, 2014<br /> 1:45-5 p.m.</p> <p><b>Where<br /> </b>Hyatt Regency Monterey</p> <p>For more information or to register for the conference, visit the LCC&rsquo;s City Clerks New Law &amp; Elections Seminar page by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements04 Dec 2014 00:00:00 -0800 of Wireless Facilities<p>BB&amp;K telecommunications law attorneys <b>Joseph Van Eaton</b> and <b>Gerard Lederer</b>, who is also a co-chair of the program, will be among the featured speakers at this two-day conference titled &ldquo;Deployment of Wireless Facilities: Adapting to New Technologies, FCC Rules, State Legislative Developments and a Major Supreme Court Decision.&rdquo;</p> <p>This year has seen explosive mobile industry growth. Smartphones, &quot;apps,&quot; social media and streaming video are all creating unprecedented demand for mobile broadband, both services and infrastructure. This conference addresses the practical, legal, economic and regulatory issues applicable to providers, local governments, building landlords, private property owners and others that arise from this explosion in the growth of mobile wireless services, and the infrastructure that makes these services possible.</p> <p>This advanced conference will examine the changing business of mobile and wireless communications services and its impact on the increased demand for, and design of, wireless facilities. Topics to be discussed include state and federal regulations and statutes that define the rights and responsibilities of mobile service providers, local governments and property owners when it comes to site, and modifying towers and antennas. Panelists will also discuss deal points associated with the deployment and modification of cell sites, towers, and other facilities' access.</p> <p>The conference will also be webcast live.<br /> <br /> <i>BB&amp;K clients and colleagues receive $100 off registration.</i></p> <p><b>BB&amp;K Speakers</b><br /> Gerard Lederer<br /> Thursday, Nov. 13, 2014<br /> 8:30 a.m.<br /> &ldquo;Introduction to Day 1: Demand Factors for New Infrastructure and New Regulatory Developments&rdquo;<br /> The big events relating to local permitting of wireless telecommunications facilities and how they fit together: Case law; the FCC &quot;shot clock&quot; ruling and Supreme Court case; Section 6409 (a) of the Middle Class Tax Relief Act and follow-on court decisions.</p> <p>Joseph Van Eaton<br /> Thursday, Nov. 13, 2014<br /> 3:15 p.m.<br /> &ldquo;Other Items on the Changing Federal and State Legal Landscape for Deployment of Wireless Facilities: What Are the New Rules of the Road?&rdquo;<br /> Overview of recent federal court cases including T-Mobile South v. City of Roswell; other litigation developments; FCC regulatory initiatives; local government perspective on the implications.</p> <p>Gerard Lederer<br /> Friday, Nov. 14, 2014<br /> 10:15 a.m.<br /> &ldquo;Carrier Access to Buildings and Other Structures: Best Practices for Negotiating Lease Terms with the Landlord&rdquo;<br /> Carrier and building owner perspectives on getting to yes for wireless facilities leases</p> <p>BB&amp;K is also co-sponsoring a reception for faculty and attendees on Thursday, Nov. 13, 2014 at 5 p.m.</p> <p><b>Continuing Education Credits</b><br /> Live credits: This program qualifies for 10.3 GA CLE credits. Upon request, event organizers will apply for, or help you apply for, CLE credits in other states and other types of credits.</p> <p><b>Location</b><br /> Hilton Garden Inn Atlanta Midtown<br /> 97 10th Street NW<br /> Atlanta, GA 30309</p> <p>For more information or to register, please visit Law Seminars International&rsquo;s event page by clicking <a target="_blank" href=""><span style="color: #0000ff">here</span></a>.</p>Conferences & Speaking Engagements13 Nov 2014 00:00:00 -0800 in Drought: Development, Legislation and Litigation<p>BB&amp;K Managing Partner <b>Eric Garner</b>, who is the program chair of the event, and Partners <b>Paeter Garcia</b> and <b>Kelly Salt</b> will be participating in some of the panel discussions during this day-long seminar. This year is being touted as California&rsquo;s single driest year on record and severe drought conditions have brought the state to a crossroads. Is drought now going to be the new normal in California? This program will help attendees understand the impacts of drought on the competing needs of urban, agricultural and environmental water users. A diverse group of water leaders from state and local government, water associations, the legislature and engineers and attorneys will provide their insight on the legal and policy issues facing the state&rsquo;s surface water, groundwater and alternative water supplies. Come and discover how California&rsquo;s drought is creating challenges and prompting new solutions for water resource management.</p> <p><b>BB&amp;K Speakers:</b><br /> <br /> Eric Garner will deliver the event&rsquo;s opening introduction and overview at 9 a.m. At 11:30 a.m., he will moderate the discussion &ldquo;The Groundwater Conundrum,&rdquo; which will explore the following topics:</p> <ul> <li>Groundwater Use in an Arid State (Availability, Rights, Uses, Reserves and Overdraft)</li> <li>Whiskey is for Drinking (Adjudications Past, Present and Future)</li> <li>Common Ground (Groundwater Management Plans; Special Legislation; State Oversight)</li> </ul> <p>Paeter Garcia will appear as a panelist at 3 p.m. for a discussion titled, &ldquo;The Perfect Non-Storm: Permitting Development in Drought Conditions.&rdquo; Topics to be discussed include:</p> <ul> <li>California Growth and Related Development</li> <li>Tall Task for Water Supply Planning (Urban Water Management Plans; General Plans)</li> <li>Preparing Defensible Water Supply Analyses (Water Supply Assessments; Written Verifications; CEQA Analysis)</li> </ul> <p>Kelly Salt is participating on a panel at 4 p.m. called, &ldquo;Pricing the Way through a Water Shortage.&rdquo; Issues to be covered include:</p> <ul> <li>Declaring Water Shortage and Emergency Conditions (Ordinances, Conservation, Rationing)</li> <li>Pricing Structures and Challenges</li> <li>Public Issue with Private Implications</li> </ul> <p><b>Credits: </b><br /> <br /> CA CLE: 6.25 General CLE credits<br /> CDPH: 6.0 contact hours</p> <p><b>Topics Covered: </b></p> <ul> <li>Drought Response</li> <li>Environmental</li> <li>Groundwater Use and Management</li> <li>Stormwater and Greywater</li> <li>Water Purchases and Transfers</li> <li>Water Shortage and Emergency Conditions</li> </ul> <p><b>Who Should Attend:</b></p> <ul> <li>Attorneys/Legal Staff</li> <li>State and Municipal Officials</li> <li>Water Operators</li> <li>Developers/Land Owners</li> <li>Farmers/Ranchers</li> <li>Environmentalists</li> <li>Utility Managers</li> <li>Planners</li> </ul> <p><b>Where: </b><br /> <br /> DoubleTree by Hilton LA Downtown<br /> 120 S. Los Angeles St.<br /> Los Angeles, CA 90012</p> <p>For more information or to register, please click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements30 Oct 2014 00:00:00 -0800 Access to Public Rights-of-Way<p>Join BB&amp;K attorneys Gail Karish and Matthew Schettenhelm at Lorman Education Services&rsquo; &ldquo;Private Access to Public Rights-of-Way.&rdquo; During this webinar, you will learn to increase your proficiency in the private use of rights-of-ways and be provided a useful introduction to the challenges facing local governments as more private providers seek to use the public rights-of-way for a variety of purposes. Public officials, private service providers and lawyers will benefit from understanding the variety of existing and emerging users and uses, the options available for securing access to public rights-of-way and the duties and liabilities related to their use.</p> <p>By using <a target="_blank" href=";p=13389&amp;s=direct"><span style="color: #0000ff">this link to register</span></a>, BB&amp;K guests receive 50 percent off registration.</p> <p><b>When</b><br /> Oct. 29, 014<br /> 10 &ndash; 11:30 a.m. (PST)<br /> <br /> Continuing Education credits are available.</p>Conferences & Speaking Engagements29 Oct 2014 00:00:00 -0800 Requirements of Filing Officers and Officials<p>BB&amp;K Senior Paralegal Dianna Valdez will host a training&nbsp;on the statutory duties of public agency filing officers and officials regarding Form 700 Statements of Economic Interests (SEIs).</p> <p><strong>This informative seminar will discuss:</strong></p> <ul> <li>Legislative &amp; Regulatory Changes</li> <li>General Rules - What's Your Role? <ul type="circle"> <li>Types of Public Officials - PRA vs. CIC</li> <li>Disclosure Requirements - Full vs. Limited</li> </ul> </li> <li>Guidelines - Notices, Fines &amp; Waivers</li> <li>Reviews - Facial vs. Full <ul type="circle"> <li>What to Look For - Common Errors</li> </ul> </li> <li>Public Access - Within Two Days</li> <li>Enforcement - Reporting Apparent Violations</li> <li>Records &amp; Retention</li> <li>What February 1 Deadline?</li> </ul> <p><strong>Who should attend:</strong></p> <ul type="disc"> <li>Filing officers and their assistants for: <ul type="circle"> <li>School Districts</li> <li>Special Districts</li> <li>Cities</li> <li>Counties</li> </ul> </li> </ul> <strong>When:</strong><br /> Wednesday, Oct. 29, 2014<br /> 8:30 a.m. - Check-in &amp; Pastries<br /> 9 - 11:30 a.m. - Training<br /> <p><strong>Where:</strong><br /> The training will be held&nbsp;at&nbsp;<span style="color: #0000ff"><a target="_blank" href="">BB&amp;K offices</a></span> throughout California. When you register you will select where you will attend the training.</p> <p><strong>Per Person Cost: $125</strong><br /> Clients who have signed off and paid for the new Pulic Policy &amp; Ethics program will receive the discounted price of $75 per person.<br /> <br /> To RSVP click <a href=";body=Name%3A%20%0D%0ACompany%3A%20%0D%0ATitle%3A%20%0D%0AEmail%3A%20%0D%0ABB%26K%20Office%3A%20%0D%0A*%20Please%20list%20additional%20attendees%20if%20applicable.%0D%0A"><span style="color: #0000ff">here.</span></a><br /> <br /> <strong>Contact Person:<br /> </strong>Katey Lamke, Best Best &amp; Krieger LLP<br /> <a href=""><span style="color: #0000ff"></span></a>or (916) 329-3680</p>Seminars & Training29 Oct 2014 00:00:00 -0800 218 and 26 Keeping You Awake at Night? Setting Utility Rates Without Counting Sheep<p>BB&amp;K Partner <b>Kelly Salt</b> will be presenting &ldquo;Propositions 218 and 26 Keeping You Awake at Night? Setting Utility Rates Without Counting Sheep&rdquo; at the American Water Works Association California-Nevada Section&rsquo;s Annual Fall Conference. The theme for this year&rsquo;s three-day conference is &ldquo;Finding Water in the Arid West.&rdquo;</p> <p><b>When:<br /> </b>Wed., Oct. 22<br /> 1:30 p.m.<br /> <b><br /> <br /> Location</b><br /> Grand Sierra Resort<br /> 2500 E. Second St.<br /> Reno, NV 89595<br /> <br /> For more information or to register, visit the <a target="_blank" href=""><span style="color: #0000ff">AWWA California-Nevada Annual Fall Conference website by clicking here</span></a>.</p>Conferences & Speaking Engagements22 Oct 2014 00:00:00 -0800 Issues in Discipline and Layoffs<p>Best Best &amp; Krieger Partner <b>Arlene Prater</b> will be speaking on &ldquo;Advanced Issues in Discipline and Layoffs: How to Separate the &lsquo;Protected&rsquo; Employee&rdquo; at the Public Employer Labor Relations Association of California&rsquo;s 5th Annual Conference. Arlene will discuss how to successfully discipline or layoff an employee who has engaged in a protected activity, such as requesting a disability accommodation, taking a medical leave, filing a complaint of harassment or speaking out against the employer.</p> <p><b>When<br /> </b>Wednesday, Oct. 15, 2014<br /> 2:45 &ndash; 4 p.m.</p> <p><b>Location</b><br /> The Queen Mary<br /> 1126 Queens Highway<br /> Long Beach, CA 90802</p> <p>For more information or to register, visit the <a target="_blank" href=""><span style="color: #0000ff">PELRAC events page</span></a>.</p>Conferences & Speaking Engagements15 Oct 2014 00:00:00 -0800 Great Energy Debate<p>Join BB&amp;K Partners Robert Hargreaves and Sophie Akins at the Southern California Energy Summit&rsquo;s &ldquo;The Great Energy Debate,&rdquo; Oct. 9 &ndash; 10, in Palm Springs, Calif. They will be joined by regional leaders from the counties of Riverside, San Bernardino, Imperial, Inyo, Mono, Kern and Los Angeles to discuss the opportunities, challenges and solutions facing the various energy industries of Southern California. Learn from private and public sector leaders about how new programs, policy and trends that will affect your business and community. Explore interactive exhibits and discover new energy efficient and sustainable technologies.</p> <p>Be sure to stop by BB&amp;K&rsquo;s booth on Friday, Oct. 10.</p> <p>BB&amp;K Speakers</p> <p>&ldquo;Renewable Energy Opportunities at the Salton Sea&rdquo;<br /> What current efforts are underway to facilitate renewable energy opportunities and restoration? What renewable energy opportunities are on horizon?<br /> Moderator: Robert Hargreaves, Partner, Best Best &amp; Krieger</p> <p>&ldquo;Advancing Local Rooftop Solar &amp; Energy Storage&rdquo; <br /> How can the region support the advancement of local rooftop solar and energy storage?&nbsp; How do we engage property owners to participate?&nbsp;How do we make it happen with utilities (municipal vs. investor) considering interconnection costs, upgrades, etc.? These and other questions will be addressed.<br /> Moderator: &nbsp;Sophie Akins, Partner, Best Best &amp; Krieger</p> <p>When<br /> Oct. 9-10, 2014</p> <p>Where:<br /> Palm Springs Convention Center<br /> 277 N. Avenida Caballeros<br /> Palm Springs, CA 92262</p> <p>For more information or to register, visit the Southern California Energy Summit page by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements09 Oct 2014 00:00:00 -0800 and the Law<p>Program Co-Chair and BB&amp;K Managing Partner <b>Eric Garner</b> and Partner <b>Shawn Hagerty</b> are among the presenters at this one-day seminar titled &ldquo;Hydrology and the Law: Effective Tools for Resolving Water Rights and Damages Issues&rdquo; in Santa Monica, Calif. and webcast live. California is in the midst of a historic drought. Surface water deliveries are at an all-time low and many groundwater basins are being significantly drawn down. As the State, other public agencies and private interests struggle with how to maintain supplies in the short and long term, as well as protect the environment and comply with environmental regulations, understanding how hydrology and the law interrelate has never been more important.</p> <p>This one-day seminar will explain the basics of hydrology and how it interacts with the law in California for the benefit of practitioners in both fields. In particular, leading experts in both fields will examine the relationship between hydrology and the law as it relates to water quality and pending groundwater legislation, as well as how hydrology comes into play during litigation. This seminar will help practitioners in both fields improve their overall understanding of these very interrelated fields just as water issues are front page news.</p> <p style="text-align: left"><strong><em>Half-price registration is available to BB&amp;K guests. Please call (206) 567-4490 or email </em></strong><strong><a href=""><em><font color="#0000ff"></font></em></a><em> and mention BB&amp;K to obtain this special discount.</em></strong></p> <p><b>BB&amp;K Speakers</b></p> <p>Eric Garner<br /> 8:30 a.m., &ldquo;Introduction and Overview: Surface and Groundwater Law and Relevant Legal Concepts&rdquo;<br /> 2:30 p.m., &ldquo;The Practical Application of Science to New Groundwater Regulation&rdquo;</p> <p>Shawn Hagerty<br /> 1:30 p.m., &ldquo;The Practical Application of Science to Current Water Quality Issues: Challenges of Certainty in an Uncertain World&rdquo;</p> <p><b>What You Will Learn</b></p> <ul> <li>Hydrology of surface water, groundwater and sub-surface flows</li> <li>Water supply forecasting</li> <li>Application of science to water quality issues</li> <li>New groundwater regulations</li> <li>The use of science in resolving water quality disputes and damages</li> </ul> <p><b>Who Should Attend</b></p> <ul> <li>Attorneys</li> <li>Consultants</li> <li>Real estate developers</li> <li>Agricultural water users</li> <li>Agency and Tribal representatives</li> <li>Anyone else involved in water issues in California</li> </ul> <p><b>Date:</b><br /> Oct. 7, 2014<br /> 8 a.m. &ndash; 5 p.m.</p> <p><b>Location:</b><br /> DoubleTree Guest Suites Santa Monica Hotel or Live via Webcast</p> <p><b>Continuing Education Credits</b><br /> Live credits: Law Seminars International is a State Bar of California approved MCLE provider. This program qualifies for 6.75 California MCLE credits. Upon request, we will apply for, or help you apply for, CLE credits in other states and other types of credits.</p> <p>For more information, <a target="_blank" href=""><font color="#0000ff">visit the Law Seminars International event page by clicking here</font></a>.</p>Conferences & Speaking Engagements07 Oct 2014 00:00:00 -0800 Action Planning by Local Government<p>BB&amp;K attorneys <b>Fernando Avila</b> and <b>Charity Schiller</b> will present &ldquo;Urban Density, Transit, Water/Energy Conservation and Distributed Energy: Climate Action Planning by Local Government&rdquo; at CLE International&rsquo;s &ldquo;California Greenhouse Gas Regulations&rdquo; two-day program.</p> <p><b>When:</b><br /> Oct. 6, 2014<br /> 3:30 p.m.</p> <p><b>Location:</b><br /> Hotel Nikko, San Francisco<br /> For more information or to register, visit CLE International by <a target="_blank" href=";src=Featured&amp;page=California_Greenhouse_Gas_Regulations"><font color="#0000ff">clicking here</font></a>.</p>Conferences & Speaking Engagements07 Oct 2014 00:00:00 -0800 Summary of California Water Rights Systems and a Primer for Public Water Agency Directors<p>BB&amp;K attorneys Eric Garner and Jeff Ferre will be presenting at the Water Education Foundation&rsquo;s 2014 Water 101 Workshop. This course offers the opportunity to learn the California water basics and water district board member governance. It is open to anyone interested in learning more about the history of, and the management structure of, water in California, and about the key water issues facing the State &ndash; including the drought, groundwater management and the potential for a 2014 water bond.</p> <p>BB&amp;K Managing Partner Eric Garner will present &ldquo;Summary of California Water Rights Systems&rdquo; on Thursday, Oct. 2 at 10:30 a.m. Eric will discuss:</p> <ul> <li>Riparian Rights</li> <li>Appropriative Rights</li> <li>Groundwater Law and Cases</li> <li>Reasonable and Beneficial Use</li> <li>Public Trust Law and Cases</li> </ul> <p>BB&amp;K Partner Jeff Ferre will present &ldquo;Governance Primer for Water District Directors&rdquo; on Friday, Oct. 3 at 9 a.m. He will speak about:</p> <ul> <li>The Role and Responsibilities of a Water District Director</li> <li>Building an Effective Board</li> <li>The Brown Act &ndash; Basic Requirements</li> <li>The Fair Political Practices Act &ndash; Basic Requirements</li> <li>Conflict of Interest Code</li> <li>Requirements for Ethics Training</li> <li>Avoiding Common Legal and Political Pitfalls for Directors</li> </ul> <p><strong>Audience:<br /> </strong>The course will be especially beneficial to water resource industry staff, engineering and environmental firm personnel, legislators, legislative staff, press, advocates, stakeholders, environmentalists, public interest organizations and water district directors.</p> <p><strong>When:</strong><br /> Thursday, Oct. 2 &ndash; Friday, Oct. 3, 2014</p> <p>Where:<br /> The Cucamonga Valley Water District&rsquo;s Frontier Project in Rancho Cucamonga</p> <p>For more information or to register, please click <a target="_blank" href=""><span style="color: #0000ff"><span style="background-color: #ffffff">here</span></span></a>.</p>Conferences & Speaking Engagements02 Oct 2014 00:00:00 -0800 Setting Compliance, Social Media in Politics and CEQA<p style="text-align: left">BB&amp;K Partners <b>Kelly Salt, </b><b>John Brown, Michelle Ouellette </b>and<b>&nbsp;</b>Of Counsel<b> Fernando Avila</b>&nbsp;and <strong>Sarah Owsowitz</strong> are among the presenters at the CSDA Annual Conference, which will be held from Sept. 30 to Oct. 2, 2014, in Palm Springs, Calif.</p> <p>BB&amp;K is a sponsor of this event.</p> <p><b>BB&amp;K Speakers</b><br /> <b><br /> Kelly Salt</b>, panelist, &ldquo;Rate Setting and the Role of Attorneys and Public Officials in Reviewing Cost-of-Service and Rate Studies for Compliance with Propositions 218 and 26&rdquo;<br /> Oct. 1<br /> 11 a.m. - 12:15 p.m.<br /> The burden of proof for compliance with the two propositions is on public agencies. Courts will exercise their independent judgment when reviewing whether a public agency has complied with the substantive and procedural requirements of Proposition 218 and whether a fee is a tax under Proposition 26. This presentation will discuss the process for preparing a cost-of-service and rate study, and issues that attorneys and public officials should address in reviewing these studies.</p> <p><b>John Brown</b>, moderator, &ldquo;Citizen Engagement: New Uses of Social Media and the Body Politic&rdquo;<br /> Oct. 1<br /> 11 a.m. - 12:15 p.m.<br /> This multi-media workshop will combine the perspectives of a general counsel, social media expert and two water district public affairs experts to discuss innovative uses of social media to facilitate constituent communications and promote important issues of public policy on a regional basis.<br /> <br /> Panelists: Director of Legislative &amp; Community Affairs Greg Morrison, Elsinore Valley Municipal Water District;<br /> Public Information Associate Jennifer Poland, Hi-Desert Water District and President Teresa Warren, TW2 Marketing<br /> <br /> <b>Michelle Ouellette, Fernando Avila and&nbsp;Sarah Owsowitz</b>&nbsp;panelists, &ldquo;Special Districts and CEQA &ndash; CEQA from Your Perspective&rdquo;<br /> Oct. 1<br /> 3:45 &ndash; 4:45 p.m.<br /> The panel will provide a brief overview of CEQA as it applies to districts and then engage the audience in a wide-ranging conversation based on questions submitted prior to or during the panel about how CEQA works for districts.</p> <p>For more information or to register, visit the CSDA Annual Conference event page by <a href=""><font color="#0000ff">clicking here</font></a>.</p>Conferences & Speaking Engagements01 Oct 2014 00:00:00 -0800 Protection: Facts and Fantasies<p>BB&amp;K Partner Franklin Adams will be the guest speaker at the Estate Planning Council of Riverside County&rsquo;s monthly meeting in October. He will be discussing &ldquo;Asset Protection: Facts and Fantasies.&rdquo;</p> <p>For more information or to register, please visit the Estate Planning Council of Riverside County by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements01 Oct 2014 00:00:00 -0800 Reception for New Lawyers & Students Pursuing Public Service Careers<p>Please join BB&amp;K, which is co-sponsoring the event, and Partner <b>Kara Ueda</b> at the Public Law Section of the State Bar of California&rsquo;s Reception for New Lawyers and Students Pursuing Public Service Careers.</p> <p>Kara will be among a the distinguished panelists of public-service attorneys who will be discussing their careers and the qualities they look for when hiring.</p> <p><b>When</b><br /> Thursday, Sept. 25, 2014<br /> Noon &ndash; 1:30 p.m.</p> <p><b>Where</b><br /> University of California, Davis, School of Law<br /> King Hall, Classroom 1001<br /> 400 Mrak Hall Dr.<br /> Davis, CA</p> Please RSVP by Sept. 22 to <a href=""><span style="color: #0000ff"> </span></a>with the subject as &ldquo;RSVP for Public Law Section&rdquo; (please include your address and phone number).Conferences & Speaking Engagements25 Sep 2014 00:00:00 -0800 Schooled by the FPPC<p>The Fair Political Practices Commission has initiated a proactive approach to auditing and investigating reporting violations, some focused on school district officials. Rather than waiting for a violation to be brought to its attention, the FPPC has begun &ldquo;proactive investigations&rdquo; in which the Enforcement Division contacts entities known to host events of the type that public officials are likely to attend and where public officials might receive gifts or meals that would be reportable on their Statement of Economic Interests. SEIs serve a dual purpose of making a filer aware of personal economic interests, including gifts, which might relate to, and cause a conflict of interest, with respect to a governmental decision, and disclosing interests to the public to promote transparency in government.</p> <p>Once the Enforcement Division identifies an entity known to have held such a qualifying event, it requests a list of attendees for that event and information as to the value or cost of any meals and/or gifts provided to attendees. If the value of the meal and/or gifts provided meets or exceeds the reportable amount ($50 from same source in a reporting period (limited to $440 from a single source in a calendar year), see, Title 2, Div. 6, Cal. Code of Regs., secs. 18940 et seq.), the Enforcement Division then cross checks the public official&rsquo;s SEI Form 700 filing for the reporting period to determine if a reportable gift was in fact reported. If not, the FPPC will have cause to believe a violation has occurred and is likely to contact the official. If a violation is established, the FPPC can impose a fine (up to a maximum of $5,000, although normally, first time offenders are fined in the area of $200 per violation) and the FPPC will publish the name of the public official in its public filings. (A &ldquo;knowing&rdquo; failure to report can be prosecuted as a misdemeanor offense carrying a $10,000 fine.) Thereby, a cautionary tale is told.</p> <p>Recently, the FPPC appears to be auditing school district officials, including investigating events such as dinner receptions hosted&nbsp;at the California School Board Association annual conference. The FPPC&rsquo;s Enforcement Division&rsquo;s most recent meeting agenda spells out current violations and violators, and the penalties imposed. These failures to report become &ldquo;teachable moments&rdquo; where a school board member learns there truly is no such thing as &ldquo;a free lunch.&rdquo;</p> <p>So how does a public official navigate this regulatory hop-scotch court without fouling out by missing a square or stepping on the line? By knowing your gift reporting requirements and gift acceptance limits.</p> <p>AB 1234 mandates ethics training for public officials. (Gov. Code, sec. 53235.) However, school districts are not included in this requirement, and many school districts officials often miss the opportunity to learn the reporting and other requirements and limitations imposed by the Political Reform Act. Thus, school district officials often lack the training and knowledge to enable them to identify reportable financial interests, such as gifts, the limitations on the acceptance of gifts, and the disqualifying conflicts which can arise from accepting gifts.</p> <p>Best Best &amp; Krieger LLP&rsquo;s Public Policy and Ethics Compliance group keeps in constant contact with the FPPC and advises clients in public policy and ethics compliance. The Group offers AB 1234 training in-house and on-site regarding Statement of Economic Interest (Form 700) filings, Conflict of Interest, the Political Reform Act and more.</p> <p>For more details or questions about the FPPC&rsquo;s reporting requirements, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=489&amp;format=xml"><span style="color: #0000ff">Public Policy and Ethics Compliance group</span></a>, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <p><i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts23 Sep 2014 00:00:00 -0800 response to drought, California takes historic step to regulate groundwater<p>The crisis spawned by California's now three-year drought has led state leaders to pass a law thought politically impossible even just a few years ago - a statewide scheme imposing controls on groundwater pumping.</p> <p>Gov. Jerry Brown, who tried and failed to address the problem of rampant groundwater extraction during the last drought in the 1970s, signed the historic legislation into law last week.</p> <p>Groundwater use has been largely unregulated in the state and the new law comes as increased pumping is causing wells to go dry and land to subside around the state, particularly in the Central Valley.</p> <p>The bill was supported by a wide array of interests, from environmentalists to urban water suppliers. Agricultural interests, including the California Farm Bureau Federation, opposed it.</p> While hailing the significance of the law, water lawyers say it raises questions, including how the new law will interact with the well-developed common law on groundwater pumping rights, how local governments skill cooperate, and how aggressively the state will oversee local efforts. <br /> <br /> &hellip; <p>Eric L. Garner, another longtime water attorney, said he didn't think he'd see comprehensive groundwater law pass in his career but that it's enormously important.</p> <p>&quot;There are simply too many people in the state and too much demand on water, and groundwater is too important to not be managed,&quot; said Garner, managing partner at Best Best &amp; Krieger L.L.P. &quot;We have to manage this resource for the long term.&quot;</p> <p>&hellip;</p> <p>This new law- offers an alternative that is 'hopefully quicker and more efficient&quot; than adjudications, which can last 10 or 15 years, Garner said.</p> <p>&quot;Optimistically, one would like to say that the planning process, which is participatory and broad-based, will reduce litigation, but realistically, when some pumpers are faced with either reducing pumping or paying substantially more for what they pump, that's when litigation breaks out,&quot; Garner said.</p> <p>Another incentive that could motivate people to take a more cooperative approach is a desire to keep the State Water Resources Control Board from stepping in and imposing a plan, Garner said.</p> <p><i>Click <a target="_blank" href=""><span style="color: #0000ff">here</span></a>&nbsp;to read the entire article published on Sept. 22, 2014 in the Daily Journal (subscription required).</i></p>BB&K In The News22 Sep 2014 00:00:00 -0800 Law Requires Cities and Counties to Expedite Their Permitting Processes for Small Residential Rooftop Solar Systems<p>A new law imposes requirements on cities and counties regarding permitting for small residential rooftop solar energy systems. Under <a target="_blank" href=""><span style="color: #0000ff">AB 2188</span></a>, signed Sunday by Gov. Jerry Brown, cities and counties must adopt ordinances, or amend their current ordinances, to create expedited, streamlined permitting processes for small rooftop solar energy systems by Sept. 30, 2015.</p> <p>To comply with the new law, cities and counties must adopt permitting procedures that conform to the expedited permitting recommendations in the current version of the &ldquo;California Solar Permitting Guidebook.&rdquo; In addition, cities and counties must adopt a requirements checklist that small rooftop solar energy systems must comply with to be eligible for expedited review. Cities and counties must publish their checklists and other required permitting documentation on their websites.</p> <p>According to the new law, an application that meets the checklist&rsquo;s information requirements is deemed complete; and if an application is incomplete, the city or county must issue a written correction notice. AB 2188 also requires that cities and counties accept electronic submissions of applications and electronic signatures. After an application is complete, and if it is consistent with the city&rsquo;s or county&rsquo;s solar permitting ordinance, the city or county may approve the application. However, cities and counties cannot condition their approval on the approval of an association that manages a common interest development. Only one inspection, which is done in a timely manner, is required for a small rooftop solar energy system that is eligible for expedited review.</p> <p>The requirements outlined in AB 2188 apply only to residential rooftop solar energy systems that are no larger than 10 kilowatts or 30 kilowatts thermal. The systems must be installed on a single or duplex family dwelling, comply with local codes and the California Electrical Code, and not exceed the maximum legal building height. In addition, solar energy systems for heating water in single family residences and solar collectors that heat water in commercial or swimming pool applications must be certified by an accredited listing agency.</p> <p>For more details or questions about this new law, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=479&amp;format=xml"><span style="color: #0000ff">Renewable Energy group</span></a>, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.<br /> <br /> <em>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;</em></p>Legal Alerts22 Sep 2014 00:00:00 -0800 California Environmental Quality Act<p>BB&amp;K attorneys Michelle Ouellette and Fernando Avila are among the faculty at this day-long seminar on CEQA. As the cornerstone of the state's environmental protection laws, CEQA tends to be a focus for lawsuits challenging the land-use decisions of public agencies. Developing strategies for surviving potential litigation is an important aspect of preparing sound CEQA documents.</p> <p>Attend this seminar and get the tools you need to develop effective CEQA compliance strategies. The essentials of preparing legally defensible CEQA documents and examination of solutions to real projects will be discussed.</p> <p><strong>When:</strong><br /> Friday, Sept. 19, 2014<br /> 9 a.m. &ndash; 4:30 p.m.</p> <p><strong>Where:</strong><br /> Hampton Inn &amp; Suites Riverside/Corona East<br /> 4250 Riverwalk Parkway<br /> Riverside, CA 92505</p> <p>For more information or to register, click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements19 Sep 2014 00:00:00 -0800 It Easy<p>An appellant has the opportunity to make it easy for the appellate panel to locate the relevant documents in the record. <a href=""><span style="color: #0000ff"><img class="alignright size-medium wp-image-147" border="0" hspace="15" alt="Gavel" vspace="15" align="right" width="300" height="225" scale="0" src="" /></span></a>If you have the responsibility to create part of the record, select a page numbering system that makes sense so no pages have the same number. Create a meaningful index to the record. For example, if a document has an odd or misleading title, provide that title and, in brackets] a few accurate, neutral, descriptive words. Identify the declarant or witness if that information is not in the title. Provide copies of the index in the brief and in each volume of the record, marking which documents are in which volume.</p> <p>Cite to the record for every point. <a target="_blank" href=";hl=en&amp;as_sdt=2006&amp;case=8252009927956366883&amp;scilh=0"><span style="color: #0000ff"><em>Dominguez v. Financial Indemnity Co.</em>, 183 Cal.App.4th 388, 392 n.2 (2010)</span></a> (&ldquo;because FIC&rsquo;s brief fails to provide a citation to the appellate record for these facts, we do not consider them&rdquo;); <a target="_blank" href=",+Inc.+v.+Finley,+275+Ga.+App.+415,+620+S.E.2d+655,+657+(2005)&amp;hl=en&amp;as_sdt=2006&amp;case=14485260977723743533&amp;scilh=0"><span style="color: #0000ff"><em>AdvanceMe, Inc. v. Finley</em>, 275 Ga. App. 415, 620 S.E.2d 655, 657 (2005)</span></a> (&ldquo;It is not the function of this court to cull the record on behalf of a party&rdquo;). It almost goes without saying that you should cite accurately to the page with the relevant material. <a target="_blank" href=",+292+Ga.+App.+34+&amp;hl=en&amp;as_sdt=2006&amp;case=15626900396672428898&amp;scilh=0"><span style="color: #0000ff"><em>Scott v. Bank of </em></span><span style="color: #0000ff"><em>America</em>, 292 Ga. App. 34 , 663 SE 2d 386, 387 (2008)</span></a> (&ldquo;while the parties cite to the appellate record, many of the page numbers cited are incorrect&rdquo;). Cite to the record by page and line, if the lines are numbered, even if that specificity is not required. <a target="_blank" href=";hl=en&amp;as_sdt=2006&amp;case=4798182165802394448&amp;scilh=0"><span style="color: #0000ff"><em>Skinner v. State</em>, 83 Nev. 380, 432 P.2d 675, 384 &amp; n.4 (1967)</span></a>; <a target="_blank" href=",+630+N.W.2d+46,+50+(N.D.+2001)&amp;hl=en&amp;as_sdt=2006&amp;case=17299796134124344907&amp;scilh=0"><span style="color: #0000ff"><em>Anderson v. Meyer Broadcasting Co.</em>, 630 N.W.2d 46, 50 (N.D. 2001)</span></a>. Cite by page and paragraph or use terms like &ldquo;start,&rdquo; &ldquo;middle,&rdquo; and &ldquo;end&rdquo; if there are no line numbers.</p> <p>Read the court rules multiple times and follow any court rules that govern briefing, citations to the record, or other relevant subjects carefully. Even if a rule seems silly or redundant to you, remember that the judges who wrote that rule or have elected not to revise it do not think their rules are silly or unnecessary.</p> <p>Appellate panels read a great number of briefs. You may be lucky and have your brief reviewed early in the day when the judge is fresh, but it is just as likely that yours is the last brief to be read on a given day. The judge may be tired and stressed, under the pressure of deadlines. You can&rsquo;t know in advance and rarely will ever know. So make every brief easy to navigate and compliant with the rules.</p> <p>Image courtesy of <a href=""><span style="color: #0000ff">Flickr</span></a>&nbsp;by <a href=""><span style="color: #0000ff">Brian Turner</span></a> (<a href=""><span style="color: #0000ff">creative-commons license</span></a>, no changes made).</p> <p><em>* This blog post was originally published in </em><a target="_blank" href=""><span style="color: rgb(0,0,255)"><em>IMLA Appellate Practice Blog</em></span></a><em>, August 27, 2014. Republished with permission. Visit&nbsp;</em><a href=""><span style="color: rgb(0,0,255)"><em></em></span><span style="color: rgb(0,0,255)"><em> </em></span></a><em>to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs19 Sep 2014 00:00:00 -0800 Circuit: Cities Must Have On-Street Disabled Parking<p>The Ninth Circuit recently ruled that cities have an obligation under the Americans with Disabilities Act to provide on-street parking that is accessible to people with disabilities. In <i>Fortyune v. City of Lomita</i>, the plaintiff filed suit against the City alleging that none of the City&rsquo;s on-street parking is accessible. The City moved to dismiss the suit because the federal standards for design of ADA-compliant facilities do not contain any requirements related to on-street parking. The Ninth Circuit found that, despite the lack of accessibility standards, on-street parking is a &ldquo;normal function&rdquo; of a city and therefore must be made accessible.</p> <p><i>Fortyune</i> is the first case to impose a duty under the ADA where there are no technical specifications for the particular facility involved. To assist public agencies in complying with the ADA, the U.S. Department of Justice has adopted standards that set forth technical requirements for public facilities. For example, the standards require parking lots to have certain minimum numbers of handicapped parking spaces. A city that operates a parking lot is able to ensure compliance with the ADA by following these standards. But the Department of Justice has never established standards for on-street parking.</p> <p>Now, in light of <i>Fortyune</i>, cities must provide accessible on-street parking despite the absence of technical standards. The Ninth Circuit&rsquo;s opinion provides little help in how to comply with this requirement. The opinion does not address whether any particular conditions violate the ADA. The questions left open by <i>Fortyune</i> are numerous, but there are two key issues that cities should immediately consider. First, does the city provide a sufficient amount of accessible on-street parking spaces? Second, must the city provide accessible parallel parking spaces? Because the opinion gives little guidance, it is not clear how these issues should be addressed.</p> <p>The Department of Justice is expected to eventually adopt accessibility standards for public rights-of-way, which should answer the questions related to on-street parking. The Access Board, the federal agency charged with developing accessibility guidelines for the Department of Justice, has already drafted proposed guidelines (available <a target="_blank" href=""><font color="#0000ff">here</font></a>), which include technical requirements for street parking. The Access Board has yet to complete a final version of these guidelines, and until it does, the Department of Justice cannot adopt final standards. In the meantime, cities must nonetheless provide accessible on-street parking even though there are no official standards as to detail how this must be accomplished.</p> <p>If you have any questions about this case or how it may impact your agency, please contact one of the attorney authors of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=489&amp;format=xml"><font color="#0000ff">Municipal Law</font></a> practice group, or your <a target="_blank" href=""><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts15 Sep 2014 00:00:00 -0800 Uses of Social Media to Engage the Citizenry and Inform the Planning Processs/Ethics and Conflicts of Interest in Land Use Approval Process<p>BB&amp;K attorneys <b>John Brown</b> and <b>Matthew &ldquo;Mal&rdquo; Richardson</b>&nbsp;were panelists at the American Planning Association California Chapter&rsquo;s 2014 Conference &ldquo;California&rsquo;s Adventures in Planning,&rdquo;&nbsp;on Sept. 13-16, 2014 at the Disneyland Resort in Anaheim, Calif.</p> <p>&ldquo;New Uses of Social Media to Engage the Citizenry and Inform the Planning Process&rdquo;<br /> Sept. 15<br /> 8 &ndash; 9:30 a.m.</p> <p>This multi-media workshop will discuss innovative uses of social media to facilitate constituent communications and inform the planning process and planning entitlements, and inform the public of planning and other public policy initiatives, through social media.</p> <p>Speakers:</p> <ul> <li>BB&amp; K Partner John Brown (Moderator)</li> <li>Deputy City Manager Lori Sassoon, City of Rancho Cucamonga</li> <li>Economic Development Coordinator Tanya Spiegel, City of Ontario</li> <li>Municipal IT Business Analyst Cristina Tejeda,&nbsp; City of Fontana</li> </ul> <br /> To view this presention <a target="_blank" href="/?t=18&amp;dd=7273"><span style="color: #0000ff">click here</span></a>.<br /> <br type="_moz" /> <p>&ldquo;Ethics and Conflicts of Interest in the Land Use Approval Process: Guidance for Public and Private Planners, Attorneys and Development Principals&rdquo;<br /> Sept. 15<br /> 9:45 &ndash; 11:15 a.m.</p> <p>This presentation will provide tools for public and private planners, attorneys and development principals to issue spot situations where legal conflicts of interest and other ethical issues (e.g., Political Reform Act, revolving door statutes, due process, etc.) could cause a development project to stall, be improperly influenced or be invalidated.</p> <p>Speakers:</p> <ul> <li>City Attorney Michael R.W. Houston, City of Anaheim (Moderator)</li> <li>Assistant City Attorney Michael Torres, City of Newport Beach</li> <li>BB&amp;K Partner Matthew &ldquo;Mal&rdquo; Richardson</li> </ul>Conferences & Speaking Engagements15 Sep 2014 00:00:00 -0800 Attorney Named to State Bar and League of California Cities Committees<p><b>SAN FRANCISCO, Calif.</b>&nbsp;- Christopher Diaz, of counsel in Best Best &amp; Krieger&rsquo;s Walnut Creek, Calif. office, was appointed at the California State Bar&rsquo;s annual meeting on Friday to the Bar&rsquo;s Public Law Section Executive Committee.&nbsp;Diaz also recently served on the League of California Cities&rsquo; Resolutions Committee.</p> <p>&ldquo;I&rsquo;m looking forward to being a part of the Public Law Section Executive Committee, which serves current and up-and-coming public law attorneys,&rdquo; Diaz said. &ldquo;I&rsquo;ve always been drawn to public law issues, and I&rsquo;m honored to be able to serve in this capacity.&rdquo;</p> <p>During his three-year commitment on the 16-member committee, Diaz will help promote the practice of public law for Section members and will assist the Section with conferences, mentoring, outreach, training and editing its <i>Public Law Journal</i>.</p> <p>&ldquo;Chris has brought an amazing work ethic and passion for public agency representation to our firm, and I'm eager to see him share those talents with public lawyers throughout the state,&quot; said BB&amp;K Partner Scott Smith, who has one more year in his term on the Section committee.</p> <p>Diaz represents public agencies in a wide range of government law issues, with an emphasis on the California Environmental Quality Act, land use, conflicts of interest and ethics laws, and the Brown Act. He is a member of the firm&rsquo;s Municipal Law, Environmental Law &amp; Natural Resources and Special Districts practice groups. He currently serves as assistant city attorney for the Town of Colma and the cities of Lafayette and Clayton. He also serves as assistant general counsel for Local Agency Formation Commission of Santa Clara County.</p> <p>As a member of the League&rsquo;s Resolutions Committee, Diaz helped formulate positions for the influential group of municipal officers and representatives on upcoming policy matters. This year, the Committee addressed the issue of illegal marijuana cultivation and its impact on habitat and water supply. Diaz previously served on the League&rsquo;s Community Services Policy Committee from 2013-14.&nbsp;</p> <p>&ldquo;The League serves as an invaluable resource to local government, and it has been an honor to work closely with other local government representatives from across the state in setting policy objectives for the League,&rdquo; Diaz said.</p> <p>Diaz earned his law degree from the University of California, Los Angeles and his bachelor&rsquo;s degree from the University of California, San Diego.</p> <p style="text-align: center">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ###</p> <p><b><i>Best Best &amp; Krieger LLP</i></b><i> is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington D.C. For more information, visit </i><i><a target="_blank" href=""><font color="#0000ff"></font></a> or follow @BBKlaw on Twitter.</i></p>Press Releases15 Sep 2014 00:00:00 -0800 Controller Rolls Out an Open Data Website on Local Government Finances<p>In a major move to enhance government transparency, State Controller John Chiang rolled out a new open data website last week that lists more than 13 million fields of financial data for cities and counties. The site, <a target="_blank" href=""><span style="color: #0000ff"></span></a>, allows any person visiting the site to track revenues, expenditures, liabilities, assets, fund balances and even basic statistics about each city and county.</p> <p>Currently, the site posts data for an 11-year period, spanning FY 2002-03 through 2012-13 for all 58 California counties and 450 cities. The Controller&rsquo;s office indicates that data for prior decades will be added as the website is upgraded. Additionally, data will be added for each of California&rsquo;s approximately 130 pension systems, including assets and liabilities; additions to plan assets, such as employer and employee contributions; deductions to plan assets, such as benefit payments and administrative expenses; statistics on the number of active, inactive and retired members; net return on investments and actuarial funding.</p> <p>The Controller has been collecting and publishing this data since 1911 in paper form. The new website will make the data more readily available to the public and joins the Controller&rsquo;s other websites: <a target="_blank" href=""><span style="color: #0000ff"></span></a>, which includes pay information for public employees, and <a target="_blank" href=""><span style="color: #0000ff"></span></a>, which helps taxpayers track every dollar raised by Proposition 30 for public schools.</p>Legal Alerts15 Sep 2014 00:00:00 -0800 Enforcement Must Preserve Police Camera Video Known to be "Potentially Useful" to the Defense<p><b>Overview: </b>The Court of Appeal held in a published case that officers violated a defendant&rsquo;s due process rights by failing to preserve police camera video of a robbery crime scene when both the defendant and his counsel sought the video before it was routinely destroyed.</p> <p><b>Training Point: </b>When officers are aware that video footage is available and might be &ldquo;potentially useful&rdquo; to the defense, officers have an affirmative duty to preserve the evidence. If the video is destroyed, even as a matter of routine, courts will infer it was done in &ldquo;bad faith&rdquo; and any pending criminal charges stemming from that case may be dismissed on the grounds that the destruction of the evidence rises to the level of a due process violation.</p> <p>Officers should follow their departmental policy and guidelines as it pertains to the recording, retention and destruction of video footage.</p> <p><b>Summary:</b> In the early morning hours, Jose C. and a companion were walking across the parking lot of commercial complex when they were confronted by &ldquo;five male gang types,&rdquo; one of whom he told police stole a gold chain from around his neck while two others threatened him. Because the area was an area of &ldquo;high concern&rdquo; the Anaheim Police Department had two cameras trained on it.</p> <p>Jose followed the men and flagged down patrol officers, who detained the suspects nearby. A gang detective responded to the scene. The gold chain was found nearby.</p> <p>One of the suspects insisted that, while at the scene, he told the gang detective to &ldquo;get the videos,&rdquo; insisting that the video footage would show that neither he nor one of the other suspects were involved in the robbery. In response, according to the suspect, the gang detective said, <i>&ldquo;</i>If I had video camera of what took place, that&rsquo;s part of my job. My job is not to arrest people that aren&rsquo;t guilty of something.&rdquo; When later called to testify, the gang detective testified he did not recall one of the suspects requesting the video footage but that it would not surprise him if someone had said that. The evidence revealed that a personal recording device worn by the gang detective that recorded one of the suspects saying, &ldquo;Check the cameras, dude! There&rsquo;s gotta be cameras around here, man&hellip;.&rdquo; In response, the gang detective stated that getting the videos was part of his job.</p> <p>The gang detective did not retrieve the videos or request any other detectives assigned to the case to do so. Defense counsel requested copies of the video footage; however, despite the prosecution&rsquo;s assurances to obtain and preserve the videos, the evidence revealed that pursuant to routine practice, the department destroyed the videos</p> <p>Charges against two of the suspects were dismissed on grounds that their due process rights were violated as a result of the destruction of potentially exculpatory evidence. The 4th District Court of Appeal affirmed the order, holding held that &nbsp;the video footage was &ldquo;potentially useful&rdquo; to the defense and, because the police and prosecution were on notice of the request for the footage and because the gang detective and the prosecution promised to retain it, even the routine destruction of the video constituted &ldquo;bad faith.&rdquo;</p> <p>For more information regarding this case or its implications for your agency and public safety department, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=2532&amp;format=xml"><span style="color: #0000ff">Public Safety</span></a> group, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p>Legal Alerts12 Sep 2014 00:00:00 -0800 Legal Issues Affecting the Telecommunications Industry<p>BB&amp;K attorney Gail Karish will speak at a program summarizing the legal issues affecting the telecommunications industry. Attendees will learn about siting, zoning, federal preemption of local control, co-location, cell site leasing, lots of opportunities and constraints for public and private entity control and/or participation.</p> <p><b>When:</b><br /> Friday, Sept. 12, 2014<br /> 11:15 AM - 12:15 PM</p> <p><b>Where:</b><br /> Grand Hyatt San Diego</p> <br /> For more information or to register, please <a target="_blank" href=""><u><span style="color: #0000ff">click here</span></u></a>.<br />Conferences & Speaking Engagements12 Sep 2014 00:00:00 -0800 Secretary - Walnut Creek Office<span style="font-family: Times New Roman"><strong><span style="font-size: small">Skilled Legal Secretary with strong litigation experience.</span></strong><span style="font-size: small"><br /> <br /> Qualified candidate must have 5+ years recent California litigation experience, thorough knowledge of Superior and District court rules and procedures, transcription and calendaring. Must be comfortable in fast paced environment, detail oriented, work with little supervision, motivated, professional, reliable, with excellent verbal and written communications skills. Expert with Word, Outlook, iManage. Superior salary/benefits package and excellent work environment. <br /> <br /> </span></span> <p><span style="font-family: Times New Roman"><span style="font-size: small">Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.<br /> <br /> <a target="_blank" href=";%3db8=%3a%40%3bA"></a></span></span></p> <p><span style="font-family: Times New Roman"><span style="font-size: small">Please address your cover letter to:</span></span></p> <p><span style="font-family: Times New Roman"><span style="font-size: small"><strong>Debbie Prior<br /> </strong><em>Director of Human Resources<br /> </em>Best Best &amp; Krieger LLP<br /> 500 Capitol Mall, Ste. 1700<br /> Sacramento, CA 95814</span></span></p> <p>&nbsp;</p> <span style="font-family: Times New Roman"><span style="font-size: small"> <p><em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p> </span></span>Job Openings at BB&K12 Sep 2014 00:00:00 -0800 to Land Projects in California<p>Until recently, California&rsquo;s state-level economic development cupboard was looking a little bare &mdash; its 400 redevelopment agencies were dissolved in February 2012, property tax increment financing has been discontinued and Enterprise Zones are being phased out. That&rsquo;s why some cities and towns in the Golden State are rethinking the business-attraction tools they still have at their disposal, on the local level, and are applying innovative solutions to landing the projects that they want in their jurisdictions.</p> <p>New forms of public-private partnerships allow for non-redevelopment municipal assistance to produce local jobs, increase economic opportunities in industrial, manufacturing and retail sectors and deliver other public benefits to help boost the local economy. In addition, California has started several new tax credit programs that have just completed their inaugural round of awardees.</p> <p>In June, the newly formed California Competes Tax Credit (CCTC) Committee approved $28.9 million in tax credits for29 companies expanding CCTC Committee are projected to help these companies create almost 6 , 000 jobs and generate more than $2 billion in investments across California. Awardees include: Samsung Semiconductor, Petco Animal Supplies, Amazon Fulfillment Services,, Hyundai Capital America, Novartis Pharmaceuticals Corp., and iHerb, Inc.</p> <p>Awardees are exempt from paying state income taxes in the amount awarded. An additional $ 150 million in tax credits will be allocated next fiscal year, and companies not selected in the first round are eligible to reapply once the next application period opens.</p> <p>Projects are evaluated based on the factors required by statute, including total jobs created, total investment, average wage, economic impact, strategic importance and more. A total of 396 companies applied and requested more than $ 500 million in credits.</p> <p>The California Competes Tax Credit is part of Gov. Jerry Brown&rsquo;s Economic Development Initiative (GEDI), which he signed legislation to enact last year. The GEDI also includes a hiring credit for areas of high unemployment and poverty that went into effect on January 1, and a sales and use tax exemption for the purchase of manufacturing, biotech and R&amp;D equipment that was available to companies as of July 1.</p> <p>The Governor&rsquo;s Office of Business and Economic Development (GO-Biz) serves as California&rsquo;s single point-of-contact for economic development and job creation efforts. GO-Biz offers a range of services to business owners, including: attraction, retention and expansion services, site selection, permit streamlining, clearing of regulatory hurdles, small business assistance, international trade development, assistance with state government and much more.</p> <p><b>State Boosts Local Economic Development Efforts</b></p> <p>The state&rsquo;s passage of SB 470 in 2013 was a step to display the intent of the Legislature to promote economic development on a local level so that communities can enact local strategies to increase jobs, create economic opportunity and generate tax revenue for all levels of government.</p> <p>Moreover, SB 470 provides local governments with new tools, at no cost to the state, that allow local governments to use their funds in a manner that promotes economic opportunity and to continue certain powers afforded to redevelopment agencies, with respect to properties owned by a city which were acquired to be sold or leased for economic opportunity purposes, as defined in the bill.</p> <p>Traditionally, California cities have used state-authorized programs to assist development, such as the establishment of capital investment incentives to attract large manufacturing facilities. Cities are also authorized to create special bodies, such as industrial development authorities and community facilities districts, as a means of accessing different financing, including lease revenue, industrial development, private activity and special tax bonds and certificates of participation. However, more and more cities are starting to look for other innovative ways to assist new development.</p> <p>In California, general law cities derive their power to assist private development from the state Constitution&rsquo;s &ldquo;police &rdquo; as well as specific state statutory authority.</p> <p>Charter cities (such as Los Angeles, Sacramento, Visalia and San Diego) also have authority as to &ldquo;municipal affairs&rdquo; in any area not preempted by the state.</p> <p><b>Tax-Sharing Package Approved For Heavy Equipment Auctioneer</b></p> <p>Ritchie Bros. (NYSE and TSX: RBA), headquartered in Vancouver, BC, Canada, the world&rsquo;s largest seller of used heavy equipment, with more than 1,400 full-time employees worldwide, went in search of a new location in California&rsquo;s Great Central Valley. After a review of many potential communities in several counties, Ritchie Bros. decided to pursue a deal with the City of Tulare. What resulted was a forward looking economic development incentive agreement and development agreement outlining the company&rsquo;s use of a site in the City of Tulare and calculation of the sales tax sharing over a 20-year period.</p> <p>In exchange for developing the new location in the City of Tulare and meeting certain taxable sales tiers, the City agreed to a completely &ldquo;performance based&rdquo; incentive package that includes disbursement of various percentages of sales tax actually received by the City to Ritchie Bros. Ritchie Bros. agreed to invest not less than $10 million for land, infrastructure and buildings, retain specified numbers of employees for the location and various other ongoing commitments to benefit the City, tourism and local businesses. In addition, the auction site would be available for City, civic and school functions for other events throughout the year when the site is not in active use.</p> <p>The direct community benefit include more jobs, new sales tax, and new visitors to the multiple-day auctions several times per year. In addition, there is tremendous economic &ldquo;spin off&rdquo; to other business in the City of Tulare to businesses related to heavy equipment. All of this was documented in an Economic Benefit Analysis presented to the City.</p> <p><b>Toxic Site Is Re-Purposed</b></p> <p>One particular example highlights the flexibility and power of a public-private partnership at the local level without any redevelopment tax increment. Primestor Development Inc., a certified minority business enterprise, is nearing completion this month of Azalea, a 370,000 sq.-ft. (34,300-sq.-m.) regional mall on a 30-acre (12-hectare) former brown field site in the City of South Gate, just south of Downtown Los Angeles. At the grand opening in August, the regional mall was 97-percent leased with a single and intentional vacancy awaiting the &ldquo;right&rdquo; tenant.</p> <p>This new shopping center was assisted by the City&rsquo;s innovative incentive structure and the infrastructure financing and fee waiver agreement. The City not only transferred adjacent parcels and constructed offsite improvements, but also provided project financing and will participate in project construction cost savings and excess developer return.</p> <p>The developer is providing substantial public amenities, including a public plaza available for exclusive City events up to six times per year, and a City Hall annex. The developer also agreed to pay prevailing wages and institute a local-hiring preference plan, as well as provide a marketing budget for the public plaza and fund a repair and replacement reserve. The developer also agreed to pay the City for its expenses related to the project.</p> <p><b>Municipal Powers Remain Intact</b></p> <p>Azalea and the Ritchie Bros. Auction site are important projects in post-redevelopment California. Many local jurisdictions are realizing that they in fact have significant authority and potential monetary and non-monetary resources to assist in the revitalization of downtown districts, create value in suburban neighborhoods and renew aging infrastructure. Though local governments are prohibited from making outright gifts of public funds, cities can provide financial assistance, including loans, grants, subsidies and tax incentives and revenue sharing, if the program supports an identifiable public purpose and benefits the community.</p> <p>Along with new authority for local agencies in SB 470, the State in AB 562 has also placed a new requirement on cities to issue a report about any project receiving any type of &ldquo;economic development subsidy&rdquo; of $100,000 or more and its benefits to the public before approving the subsidy. Moreover, prevailing wage laws continue to challenge the structuring of incentives and subsidies.</p> <p>The State and cities are again recognizing that their involvement can make a big difference in the feasibility and value of an economic development project. Success requires a collaborative relationship between the city and the developer and a willingness to utilize the state tools and available local authority.</p> <p><i>Seth Merewitz is a partner in the Los Angeles office of Best Best &amp; Krieger LLP and leads the firm&rsquo;s Public-Private Partnership/Joint Venture Practice Group. He can be reached at 213-787-2567 or <a href=""><span style="color: #0000ff"></span></a></i></p> <i> <p><i><span>This article originally appeared in the October 2014 of <a target="_blank" href=""><span style="color: #0000ff">Site Selection</span></a> magazine. Reprinted with permission.</span></i></p> </i>BB&K In The News12 Sep 2014 00:00:00 -0800 Associate - Riverside<p>Our Riverside office has an associate opening requiring 3 to 5 years of litigation experience. Experience in employment, construction and business litigation a plus.</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</p> <p><a target="_blank" href=";%3db8=8_CG"></a><br /> <br /> Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K12 Sep 2014 00:00:00 -0800 Block Quotes Carefully and Sparingly<p>Format selected block quotes for easy reading. Many readers find the dense text of standard block quotes tiresome enough to read that they may skip over the blocks entirely. Istvan &amp; Ricks, Top 10 Ways to Write a Bad Brief, N.J. Law. (2006). Add extra leading between the lines to reduce that tendency. If there are paragraphs in the block quote, retain that formatting <a href=""><img class="alignright size-medium wp-image-642" border="0" hspace="15" alt="fountain pen" vspace="15" align="right" width="300" height="199" scale="0" src="" /></a>instead of substituting a paragraph mark.</p> <p>Choose block quotes carefully and sparingly. Judge Alex Kozinski remarked: &ldquo;Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer.&rdquo; Kozinski, The Wrong Stuff, B.Y.U.L. Rev. 325, 329 (1992). Given the danger that long block quotes may not be read, paraphrase the less critical material to shorten the block. Write the lead in to the block to reveal its importance. If the block is important because it states the three elements of this or the five tests for that&mdash;then add letters or numerals in brackets or otherwise format to assist the reader. Although a textual repetition of the content immediately following the block is likely to offend the reader, the points can be worked into the text at a later opportunity.</p> <p>Have your secretary or a paralegal double check the accuracy of the quotations and citations to locate them. Errors the court finds in one raise questions on the accuracy of all, and your opponent and the court will check. E.g., <a target="_blank" href=",+531+So.+2d+550,+551+(La.App.+1988&amp;hl=en&amp;as_sdt=2006&amp;case=17075205871981727078&amp;scilh=0"><span style="color: #0000ff"><em>Austin v. Pascarelli</em>, 531 So. 2d 550, 551 (La.App. 1988)</span></a> (&ldquo;The trial court may have been mislead by the incorrect quote of La.RS 9:3921 contained in Pascarelli&rsquo;s motion for summary judgment.&rdquo;).</p> <p>Be especially careful to check the use of ellipses to ensure that important qualifications or even the word &ldquo;not&rdquo; or another essential word has not accidentally been omitted. <a target="_blank" href=",+314+F.3d+193&amp;hl=en&amp;as_sdt=2006&amp;case=4820382289308812689&amp;scilh=0"><span style="color: #0000ff"><em>Dube v. Eagle Global Logistics</em>, 314 F.3d 193, 194-95 (5th Cir. 2002)</span></a> (&ldquo;We rejected Provost Umphrey&rsquo;s briefs as noncompliant because, inter alia, they contained &lsquo;specious arguments&rsquo; and had &lsquo;grossly distorted&rsquo; the record through the use of ellipses to misrepresent the statements and orders of the district court.&rdquo;); <a target="_blank" href=",&amp;hl=en&amp;as_sdt=2006&amp;case=15443261060945699316&amp;scilh=0"><span style="color: #0000ff"><em>United States v. Johnson</em>, 187 F.3d 1129, 1132 n.3 (9th Cir. 1999</span>)</a> (&ldquo;The government used ellipses to leave this decisive part of the statute out of its brief. Such use of ellipses to omit a relevant section of the Oregon statute is improper. Use of ellipses to excise relevant and decisive sections of the statute in a way that benefits the government&rsquo;s case is looked upon with great disfavor.&rdquo;); <a target="_blank" href=",+807+F.+Supp.+1090,+1093&amp;hl=en&amp;as_sdt=2006&amp;case=12224189947287894162&amp;scilh=0"><span style="color: #0000ff"><em>Lish v. Harper&rsquo;s Magazine Foundation</em>, 807 F. Supp. 1090, 1093</span></a> (S.D.N.Y. 1992 (&ldquo;The deletions &mdash; totalling approximately 48% of the excerpt &mdash; were not marked by ellipses.&rdquo;).</p> <p>The courts in these and, sadly, many other decisions made a public record that the attorneys involved could not be trusted. Even if a public record is not made, judges talk to each other and may keep records in chambers of the attorneys whose work is suspect. As a result, an attorney&rsquo;s reputation may be tarnished in many courtrooms for a single serious quotation error.</p> <p>Image courtesy of <a href=""><span style="color: #0000ff">Flickr</span></a>&nbsp;by <a href=""><span style="color: #0000ff">Fimb</span></a> (<a href=""><span style="color: #0000ff">creative-commons license, no changes made</span></a>).<br /> <br /> &nbsp;</p> <p><em>* This blog post was originally published in </em><a target="_blank" href=""><span style="color: #0000ff"><em>IMLA Appellate Practice Blog</em></span></a><em>, September 11, 2014. Republished with permission. Visit </em><a target="_blank" href=""><span style="color: rgb(0,0,255)"><em></em></span></a><span style="color: rgb(0,0,255)"><em> </em></span><em>to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs11 Sep 2014 00:00:00 -0800 Signs Paid Sick Leave Law Bill Applicable to Public & Private Employers<p>Yesterday, Gov. Jerry Brown signed the &ldquo;Healthy Workplaces, Healthy Families Act of 2014&rdquo; (AB 1522 - Gonzalez). As of July 1, 2015, the new law requires both public and private employers, including private employers of any size and all political subdivisions of the state and municipalities, to provide paid sick leave to employees to care for themselves or a family member. Employees (both full-time and part-time) are eligible to accrue paid sick leave if they work for 30 or more days within a year from their hire date, and they can start using paid sick leave after 90 days of employment.</p> <p>Under the new law, employees accrue paid sick days at a minimum rate of one hour per every 30 hours worked, though the employer can cap the total sick leave accrual at 48 hours (or six days).&nbsp;Employers can also limit the number of days used to three (or 24 hours) per year, though any unused amount must carry over to the following year. When used, the employer must allow the employee to use sick leave in increments of two hours or more and must pay sick leave at the employee&rsquo;s regular hourly rate of pay. Notably, employers who already have a paid leave or paid time off policy in place need not provide any additional sick leave days under this new law, provided the policy makes available an amount of leave that may be used for the same purposes and under the same conditions as specified in AB 1522 and the policy does either of the following: (1) satisfies AB 1522&rsquo;s accrual, carry over, and use requirements, or (2) provides employees with&nbsp;no less than 24 hours or 3 days of paid sick leave per year. AB 1522 does not require employers to pay out unused sick leave at the conclusion of employment.&nbsp;</p> <p>The law further requires all employers (both public and private) to satisfy specified posting, notice, and recordkeeping requirements similar to those already required under other wage and hour laws, including display of a poster in a conspicuous place (to be created by the Labor Commissioner) and retention of paid sick leave documentation for at least three years. Employers are also expressly prohibited from discriminating or retaliating against an employee who requests or uses paid sick days.&nbsp;</p> <p>There are limited exemptions to the paid sick leave requirement for in-home supportive service providers and air carrier employees. There are also exemptions for construction service employees and other employees covered by a valid collective bargaining agreement, provided the&nbsp;collective bargaining agreement satisfies stringent standards specified in the law, including a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate (currently $9 per hour). The Labor Commissioner is tasked with enforcement of the law and may impose penalties of up to $4,000 per employee whose rights were violated under the law.</p> <p>PRACTICE TIP:&nbsp;If you already have a sick leave policy or other policy providing paid time off, review your policies now to determine whether your policy and recordkeeping requirements satisfy AB 1522. If they do, stay tuned for more information on poster and notice materials, which the Labor Commissioner should be making available prior to July 1, 2015. If you don&rsquo;t have a paid sick leave policy, you should adopt one that is compliant with&nbsp;AB 1522 by July 1, 2015.</p> <p>If you have any questions about this legislation or how it may impact your agency, please contact one of&nbsp;the attorney authors of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=491&amp;format=xml"><span style="color: #0000ff">Labor and Employment&nbsp;</span></a>practice group, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts11 Sep 2014 00:00:00 -0800 Management Services That Provide a Water Supply Source May Be Funded With Water Service<p>Assembly Bill 2403 amends the definition of &ldquo;water&rdquo; contained in the Proposition 218 Omnibus Implementation Act to &ldquo;include improvements for producing, storing, supplying, treating, or distributing water from <i>any source</i>.&rdquo; This legislation is intended to clarify that fees imposed to fund the capture (including recharge into a groundwater basin), treatment, production and distribution of stormwater as a water supply source are fees imposed for water services, and therefore are not subject to the more burdensome voter approval requirements of California Constitution article XIII D, section 6(c) (commonly referred to as Proposition 218). The legislation offers one alternative to address the evolving nature of California&rsquo;s stormwater management programs, especially the growing development of &ldquo;stormwater recapture&rdquo; programs for recharging groundwater aquifers &mdash; a valuable water supply source for public agencies throughout California.</p> <p>In November 1996, California voters approved Proposition 218, which amended the state Constitution by adding articles XIII C and XIII D. Article XIII D established a new category of fees and charges referred to as &ldquo;property-related fees and charges,&rdquo; and created new procedural requirements for their adoption. Under these requirements, water, sewer and solid waste service fees are subject to a public hearing, notice and majority protest procedure for their approval. All other property-related fees, however, must comply with these requirements and an additional voter approval process &mdash; majority approval by the affected property owners or a two-thirds registered voter approval.</p> <p>In 2002, in <i>Howard Jarvis Taxpayers Association v. City of Salinas,</i> a court of appeal considered a challenge to fees imposed by the City of Salinas to fund a stormwater drainage and flood control program developed to address water quality challenges created by the stormwater runoff. The court held that stormwater captured and discharged into a stream, river or ocean is a &ldquo;drainage&rdquo; function, not a water or sewer service function. As such, the fees were subject to the additional voter approval requirement of article XIII D, section 6(c).</p> <p>In 2013, in <i>Griffith v. Pajaro Valley Water Management Agency</i>, a court of appeal was asked to consider whether a groundwater augmentation charge imposed to fund a supplemental water supply program was a fee for water service. The supplemental water supply program included improvements to capture and treat stormwater for groundwater recharge. The court concluded that the Agency&rsquo;s groundwater augmentation charges are &ldquo;water service fees&rdquo; and therefore are within the express exemption of article XIII D, section 6(c)&rsquo;s voter approval requirements. The court recognized that &ldquo;water service&rdquo; means more than just supplying water &mdash; it includes managing a groundwater basin and ensuring an ongoing, potable supply of groundwater to the entire basin.</p> <p>In adopting AB 2403, the Legislature made specific findings that the legislation is declaratory of existing law, which would include the decisions in <i>Howard Jarvis Taxpayers Association </i>and <i>Griffith</i>. It further declared that the legislation is in furtherance of the policy contained in California Constitution article X, section 2, and the policy that the use of potable domestic water for nonpotable uses, including, but not limited to, cemeteries, golf courses, parks, highway landscaped areas and industrial and irrigation uses, is a waste or an unreasonable use of the water within the meaning of article X, section 2 if recycled water is available. AB 2403 was signed into law by Gov. Jerry Brown on June 28.</p> <p>If you have any questions about this legislation or how it may impact your agency, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=497&amp;format=xml"><span style="color: #0000ff">Public Finance</span></a> practice group, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts10 Sep 2014 00:00:00 -0800 Attorneys to Appear on Panels Covering Telecommunications, the Environment, Hot Federal Issues and More<p>Best Best &amp; Krieger is pleased to sponsor and participate in the International Municipal Lawyers Association&rsquo;s 2014 Annual Conference.</p> <p>TELECOMMUNICATION CHALLENGES FACING LOCAL GOVERNMENTS<br /> Sept. 10, 2014<br /> 1 &ndash; 2 p.m.</p> <p style="margin-left: 40px">&quot;How Converging Technologies and Mega-Mergers May Affect Your Community &ndash; A View From Municipal Perspectives&quot;<br /> <strong>BB&amp;K Speaker</strong>: Joseph Van Eaton, Partner<br /> Changes in technology present enormous opportunities for community development and delivering government services more efficiently &ndash; but also pose challenges. This presentation will discuss how localities can use existing laws and pending FCC proceedings to protect their interests.</p> <p style="margin-left: 40px">&quot;An Industry Perspective &ndash; What Do Changes In Technology Mean to Your Community?&quot;<br /> Speaker: Michael Ruger, Executive Director, Government Affairs, Comcast Cable Communications, LLC<br /> <br /> &quot;Wireless Siting &ndash; How Local Control is Faring at the FCC and in the Courts&quot;<br /> <strong>BB&amp;K Speaker</strong>: Matt Schettenhelm, Associate<br /> The FCC is in the midst of a major rulemaking that may redefine local authority over cell tower placement and modification. This presentation will provide an update on the status of the FCC rulemaking, and recent court rulings, and what steps localities can take locally and nationally to protect their interests.<br /> <br /> To view this presentation <a target="_blank" href="88E17A/assets/files/Documents/Matt_Schettenhelm_IMLA 2014.PPTX"><span style="color: #0000ff">click here</span></a>.</p> <p>STORMWATER: NEW REQUIREMENTS FOR DEVELOPMENT PROJECTS AND EPA&rsquo;S PROPOSED RULE RE-DEFINING &ldquo;WATERS OF THE U.S.&rdquo; WILL HAVE MAJOR COST AND OPERATIONAL IMPACTS FOR MUNICIPALITIES<br /> Sept. 10, 2014<br /> 2 &ndash; 3 p.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speaker</strong>: Andre Monette, Associate <br /> Other Presenters: Ryan Baron, Senior Deputy County Counsel, Orange County, California; Marc E. Gori, Assistant County Attorney, Fairfax County, Virginia<br /> Comments on the EPA&rsquo;s Proposed Rule broadly defining &ldquo;Waters of the U.S.&rdquo; under the Clean Water Act are due in October. The controversial proposed changes are important to local government and public agencies because, if adopted, they will greatly expand the jurisdictional reach of the CWA and change how municipal stormwater systems are categorized.</p> <p>STORMWATER MANAGEMENT/MS4 PERMITTING<br /> Sept. 11, 2014<br /> 9:15 &ndash; 10:15 a.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speaker</strong>: Gene Tanaka, Partner<br /> Other Presenters: Steve Roy, Larry Coffman and Lee Epstein<br /> <br /> To view this presentation <a target="_blank" href="88E17A/assets/files/Documents/2014.7.14_IMLA Conf. -Stormwater Management_MS4.PPTX"><span style="color: #0000ff">click here</span></a>.</p> <p>HOT FEDERAL ISSUES: TAXES, TRANSPORT AND COMMUNITY DEVELOPMENT<br /> Sept. 11, 2014<br /> Noon &ndash; 1 p.m.</p> <p style="margin-left: 40px">A review of critical federal issues that may affect your community&rsquo;s bottom line and economic development plans &ndash;and the opportunities and risks they present to municipalities.</p> <p style="margin-left: 40px"><em>&quot;</em>Update on Congressional Actions Affecting Your Community and Your Budget&quot;<br /> <strong>BB&amp;K Speaker</strong>: Gerard Lederer, Partner<br /> Congress is considering a number of measures &ndash; including some that could block taxation of Internet access, allow taxation of e-commerce and could affect the funds available for transportation projects &mdash; that could significantly affect communities throughout the country. This presentation will provide an update on Congressional actions, including those affecting he Highway Trust Fund, and what those actions mean for communities.</p> <p style="margin-left: 40px">&quot;Rail Transport and Public Safety -&nbsp; Is There a Solution?&quot;<br /> <strong>BB&amp;K Speaker</strong>: Harriet Steiner, Partner<br /> Cities have raised significant concerns regarding the safety of rail freight transiting through their communities. This presentation will focus on the status of federal rules regarding train safety &ndash; and their effectiveness.<br /> <br /> &quot;Speeding Development By Planning for the Endangered Species Act&quot;<br /> <strong>BB&amp;K Speaker</strong>: Michelle Ouellette, Partner<br /> The Endangered Species Act can block development projects or it can be used to help clear the way for future development. This presentation will discuss how communities are working with the ESA to speed development.<br /> <br /> To view this presentation <a target="_blank" href="88E17A/assets/files/Documents/Gerry_Michelle_2014IMLA.PPTX"><span style="color: #0000ff">click here</span></a>.<br /> &nbsp;</p> <p>WONK Breakfast<br /> Sept. 12, 2014<br /> 7:30-8:30 a.m.</p> <p style="margin-left: 40px">&quot;Disruptive Technologies: Responding To Uber, Lyft, AirBnB, Drones, Small Cells and other Technologies and Applications That Are Challenging Our Communities&quot;<br /> <strong>BB&amp;K Hosts: </strong>Harriet Steiner and Gerard Lederer<br /> <br /> To view&nbsp;flyers from this&nbsp;presentation click on the links below:<span style="color: #0000ff"><br /> </span><span style="color: #0000ff"><br /> </span><span style="color: #0000ff"><a href="88E17A/assets/files/Documents/WONK Breakfast ALPR.pdf"><span style="color: #0000ff">Automated License Plate Readers</span></a></span><span style="color: #0000ff"><br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/Drones.pdf"><span style="color: #0000ff">Unmanned Aerial Vehicles (Drones)</span></a></span><span style="color: #0000ff"><br /> <br /> </span><a target="_blank" href="88E17A/assets/files/Documents/WONK Breakfast TNCs.pdf"><span style="color: #0000ff">Transportation Network Companies</span></a><span style="color: #0000ff"><br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/BWC.pdf"><span style="color: #0000ff">Body Worn Cameras</span></a></span><span style="color: #0000ff"><br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/E-Cigs.pdf"><span style="color: #0000ff">E-Cigarettes</span></a></span><span style="color: #0000ff"> <br /> <br /> </span><span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/Online Rental Marketplaces.pdf"><span style="color: #0000ff">Online Rental Marketplaces</span></a><br /> <br /> <a target="_blank" href="88E17A/assets/files/Documents/Small Cells and Distributed Antenna Systems.pdf"><span style="color: #0000ff">Small Cells and Distributed Antenna Systems</span></a></span></p> <p><br /> Where:<strong><br /> </strong>Baltimore, Maryland</p>Conferences & Speaking Engagements10 Sep 2014 00:00:00 -0800 Court Rules that Recent Decisions Requiring Search Warrant for Forced Blood Draw or to Search Cell Phones Do Not Apply "Retroactively"<p><b>Overview:</b> The California Court of Appeal recently held, in two separate rulings, that the recent holdings requiring law enforcement officers to obtain a search warrant prior to forcing a blood draw and searching the contents of a cell phone do not apply retroactively to searches conducted prior to those rulings.</p> <p><b>Training Points</b>: Law enforcement agencies and their jurisdiction&rsquo;s prosecuting offices need not be concerned about suppression of evidence for those cases pre-dating the <i>McNeely </i>and <i>Riley </i>decisions that involved forced blood draws or evidence obtained during a warrantless search of an arrestee&rsquo;s cellular phone. The evidence obtained from those &ldquo;searches&rdquo; prior to these two decisions remain admissible so long as they were lawfully obtained and in accordance with the laws at the time of the search, and with the agency&rsquo;s department policy.</p> <p><b>Summary Analysis</b>: Last year, the U.S. Supreme Court surprised the law enforcement community when it ruled that, before law enforcement may force a blood draw to support a DUI investigation, for example, it had to obtain a search warrant, absent demonstrable and particular exigent circumstances in each case. (<i>Missouri v. McNeely </i>(2013) 133 S.Ct. 1552) Prior to the <i>McNeely</i> decision, law enforcement relied upon <i>Schmerber v. California </i>(1966) 384 U.S. 757, which permitted compelled, warrantless blood draws since the evidence of alcohol or drugs in the human body dissipates rapidly over time. (<i>People v. Superior Court (Hawkins) </i>(1972) 6 Cal.3d 757.)</p> <p>Since the <i>McNeely </i>ruling, law enforcement officers have &nbsp;struggled to adhere to the new search warrant requirement. The <i>McNeely </i>decision led to the amendment of Penal Code section 1534 (search warrant statute) so as to authorize warrants for DUI investigations.</p> <p>In an even more stunning decision this summer, the U.S. Supreme Court held that the search of the digital content of a cellphone seized incident to arrest had to be authorized by a search warrant in the absence of &ldquo;exigent circumstances&rdquo; requiring an immediate search. (<i>Riley v. California</i> (2014) 134 S.Ct. 2473.)</p> <p>Of course, law enforcement officers have conducted countless warrantless blood draws and cellphone searches prior to <i>McNeely </i>and <i>Riley.</i> Many of those searches related to cases that &nbsp;remain pending. Therefore, the question remained whether those decisions would apply &nbsp;<i>retroactively</i> to exclude evidence obtained in those prior searches?</p> <p>Last week, the Court of Appeal, relying on the &ldquo;good faith exception<b>&rdquo; </b>to the exclusionary rule, (which holds that if an officer conducts a search in good faith reliance on existing law, the exclusionary rule does not apply to require the suppression of evidence obtained as a result of that search) determined neither <i>McNeely</i> nor <i>Riley</i> apply retroactively to exclude evidence obtained from lawful searches that predate these decisions.</p> <p>In <i>People v. Machado</i>, handed down Sept. 3, 2014, the court held that the holding in <i>Riley</i> limiting search of the digital content of a cellphone incident to arrest did not require suppression of evidence seized from a cellphone search that occurred prior to the <i>Riley </i>decision. In <i>People v. Youn</i>, issued two days after <i>Machado</i>, the appellate court held that the <i>McNeely</i> decision, requiring a search warrant for a forced blood draw, did not apply to require suppression of evidence derived from a warrantless forced blood draw that occurred prior to the <i>McNeeley </i>decision.</p> <p>For more information regarding this case or its implications for your agency and public safety department, please contact one of the attorney authors of this legal alert listed at the right in the <a href=";LPA=2532&amp;format=xml" target="_blank"><span style="color: #0000ff">Public Safety</span></a> group, or your <a href="" target="_blank"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts09 Sep 2014 00:00:00 -0800 law doesn't apply to UC faculty<p>Government Code Section logo is the far-reaching and powerful anti-conflict provision that prohibits state, county, district and city officers and employees from having a financial interest in any contract made by them in their official capacity. Violation of the law is a felony offense, results in disqualification from office, and invalidates any contract except as to the interested party who bears the burden of loss incurred or disgorgement of any proceeds or profits from the contract being void.</p> <p>Michael Lofchie was a faculty member and department chair at UCLA. In 2008, he taught a summer session abroad course and participated in a decision to hire his wife as a program assistant, a position paving 53,100, plus per diem. The Los Angeles district attorney charged Lofchie with a felony violation of Section toga because he was &quot;financially interested&quot; in his wife's pay and was involved in the decision to hire her.</p> <p>Lofchie brought a motion to dismiss the charge, contending that the University of California's unique constitutional status prevented its employment practices from being regulated by Section logo; that Section logo does not apply to a UC professor as a state employee; and that a more specific employment statute, Public Contract Code Section 10516, preempts application of the more general Section logo. 'The trial court granted Lofchie's motion to dismiss the charge and the district attorney appealed.</p> <p>In People v. Lofchie, 2014 DJDAR 11952 (Aug. 27, 2014), the Court of Appeal affirmed the dismissal of the Section logo charge. The court noted that state Constitution, Article IX, Section 9, establishes the University of California as a &quot;public trust,&quot; which the courts have construed as giving the regents broad powers to organize and govern the UC and limits the Legislature's power to regulate through the general laws &not;providing the UC with general immunity from legislative regulation. The only exceptions, which are contained in the enabling constitutional provision, are to ensure the security of its finds, the use of endowments, and to require competitive bidding processes. The courts have further held the Legislature may (i) affect appropriations to the UC, (2) apply the general police powers to the LTC, such as workers compensation laws, and (3), apply legislation regulating public agency activity, not generally applicable to the general public, related to matters of statewide concern not involving internal university affairs.</p> <i>Click <a target="_blank" href=""><span style="color: #0000ff">here</span></a> to read the entire article published on Sept. 8, 2014 in the Daily Journal&rsquo;s Development Supplement (subscription required).</i>BB&K In The News08 Sep 2014 00:00:00 -0800 2014 California 50<p><i>California Lawyer</i> magazine&rsquo;s annual list of the 50 largest law firms in California was released this month, ranking Best Best &amp; Krieger LLP as 28th with 173 attorneys practicing in the state. This is a move up from the 2013 list, on which the firm was ranked 30th.</p> <p>Inclusion on the list follows BB&amp;K&rsquo;s being named a <a target="_blank" href=";an=31361&amp;format=xml"><span style="color: #0000ff">California Powerhouse by <i>Law360</i></span></a>.</p> <p>To see the full list and learn more about the <i>California Lawyer</i> survey, <a target="_blank" href=";wteid=936858_The_2014_California_50"><span style="color: #0000ff">click here</span></a>.</p>BB&K In The News08 Sep 2014 00:00:00 -0800 Case Shows Risk of Independent Contractors<p>The characterization of individuals as &ldquo;independent contractors,&rdquo; as opposed to employees, can often be a source of confusion &ndash; and grief &ndash; for the unwary employer.</p> <p>While there are great advantages to an independent contractor status, there is also room for abuse from a tax perspective and in terms of protections for the individual.</p> <p>Under California law, while courts will consider a variety of factors to determine if an independent contractor relationship exists, the principal test is &ldquo;whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.&rdquo; (<i>S.G. Borello &amp; Sons, Inc. v. Department of Industrial Relations</i> (1989) 48 Cal. 3d 341)</p> <p>The very recent case of <i>Alexander et al. v. FedEx Ground Package System, Inc</i>., decided on Aug. 27, is a particularly good example of the inherent risk in attempting to characterize employees as &ldquo;independent contractors.&rdquo; Alexander involved more than 2,000 FedEx delivery drivers whom the company characterized as independent contractors based on an operating agreement that each driver entered into with the company.</p> <p>The terms of the operating agreement created a variety of legal grounds for FedEx to argue that its drivers were independent contractors. For example, each individual driver could not only deliver packages on his or her own assigned route, but the driver could also be assigned additional routes that they could service with their own employees.</p> <p>FedEx argued that these &ldquo;entrepreneurial opportunities&rdquo; were inconsistent with the drivers being mere employees. The drivers also provided their own trucks and thus supplied the &ldquo;instrumentalities&rdquo; for performing their work. Most importantly, the drivers were responsible for setting their own route and delivering the packages in the order they saw fit. So, according to FedEx, each driver controlled the &ldquo;means and methods&rdquo; of performing his or her job.</p> <p>The Alexander court rejected all these arguments because of the broad control that FedEx maintained over the drivers. Among other things, FedEx assigned each route to a driver and, while packages could be delivered in the order decided by the driver, all packages that FedEx gave a driver for a particular day had to be delivered that day. The driver-provided truck had to be painted in approved colors and carry all the logos and identifying marks of a FedEx truck. Drivers had to wear a FedEx uniform, meet FedEx grooming standards and their performance was evaluated by FedEx managers.</p> <p>While a lower court had focused on the ability of drivers to control more than one route in ruling in favor of FedEx, the 9th U.S. Circuit Court of Appeals reversed and focused far more on the &ldquo;means and methods&rdquo; analysis that is central to California law.</p> <p>The FedEx court, again citing Borello, held that a &ldquo;business entity may not avoid its statutory obligations by carving up its production process into minute steps, then asserting that it lacks &lsquo;control&rsquo; over the exact means by which one such step is performed by the responsible workers.&rdquo;</p> <p>This was, the court found, exactly what FedEx did. By controlling all aspects of the package delivery process, except the single issue of the order in which the packages were actually delivered, FedEx was deemed to have controlled the &ldquo;means and methods.&rdquo;</p> <p>Despite what clearly was a sophisticated effort by FedEx to define its driver relationship as being that of an independent contractor, the Alexander court found that the drivers were employees. FedEx will now not only have to pay substantial damages and penalties to its drivers, but the business model of its ground delivery, at least in California, will have to be redesigned.</p> <p>The lesson to be learned is that it is the totality of the relationship between a business and purported independent contractor, not one single aspect that is left in control of the individual, that is going to define the relationship.</p> <p><i>*This article first appeared in <a target="_blank" href=""><span style="color: #0000ff">The Press-Enterprise</span></a>&nbsp;on Sept. 6 , 2014. Republished with permission.</i></p>BB&K In The News06 Sep 2014 00:00:00 -0800 Adopts Rules for Renewal of State Video Franchises<p>The California Public Utilities Commission has concluded its rulemaking proceeding and adopted streamlined rules that holders of state video franchises (such as Comcast, Time Warner Cable, Verizon, AT&amp;T and others) must follow to obtain renewal of their franchises under the Digital Infrastructure and Video Competition Act of 2006. In its <a target="_blank" href=""><span style="color: #0000ff">decision</span></a> amending General Order 169, the CPUC rejected arguments by local entities and others that in order to be consistent with federal law, the renewal process must involve a meaningful examination of the franchise holder&rsquo;s past compliance and plans to meet future cable-related needs and interests. Instead, the CPUC concluded that DIVCA requires the process for renewing state-issued franchises to be nearly identical to the streamlined process for granting the initial franchises.</p> <p>In 2006, the California Legislature created a new video franchising process under DIVCA to promote video service competition, shifting cable franchising from the local to the state level. In 2013, the CPUC initiated a rulemaking to establish video franchise renewal procedures for the 10 year DIVCA franchises. The amended General Order 169 is the result of that proceeding.</p> <p>The new rules require franchise renewal applicants to provide a copy of their application to each local entity where service will be provided, as well as to the Office of Ratepayer Advocates, and allows those entities and the general public only 15 days to file and serve comments on the renewal application. For most, comments are limited to one issue: whether a video service provider is in violation of a final non-appealable court order related to DIVCA. The ORA is also allowed to include additional information on the completeness of the renewal application. The ORA may also make comments regarding compliance with the applicant&rsquo;s franchise obligations, including nondiscriminatory provision of services, compliance with consumer protection laws, payment of franchise fees and provision of PEG channels and funding. However, the CPUC will not consider this information as part of the franchise renewal process, instead determining whether it will lead to further action outside that process.</p> <p>For more information about the new CPUC rules and how they may impact your agency, please contact one of the authors of this legal alert listed at right, an attorney in the firm&rsquo;s <a target="_blank" href=";LPA=456&amp;format=xml"><span style="color: #0000ff">Telecommunications</span></a> group or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts04 Sep 2014 00:00:00 -0800 High Court Nominee Could Raise Profile Of Bench<p>California Supreme Court nominee and Stanford Law School professor Mariano-Florentino Cuellar, who was confirmed by a state commission Thursday, exemplifies Gov. Jerry Brown&rsquo;s interest in selecting candidates who are thought leaders with backgrounds that extend beyond the court system and who may further efforts by the bench to become a dominant voice in courtrooms across the nation, attorneys say.<br /> <br /> Cuellar <a target="_blank" href=""><span style="color: #0000ff"><b>won</b></span></a> unanimous confirmation as an associate justice for the state&rsquo;s top court on Thursday in a hearing before the state&rsquo;s judicial appointments commission. If approved by voters in November, the 41-year-old professor who has taught courses including administrative, criminal and international law at the prestigious university since 2001 is set to replace <a target="_top" href=""><span style="color: #0000ff"><b>retiring</b></span></a> Justice Marvin Baxter in January.<br /> <br /> The nominee marks the second academic without judicial experience that Brown has picked for a California Supreme Court seat after <a target="_blank" href=""><span style="color: #0000ff"><b>tapping Goodwin Liu</b></span></a>, a law professor at University of California, Berkeley, in 2011. The governor also is on deck to make another nomination following Justice Joyce Kennard&rsquo;s<b> <a target="_blank" href=""><span style="color: #0000ff">retirement</span></a></b> in April, giving him significant influence over the makeup of the seven-member panel.<br /> <br /> Instead of just focusing on existing judges or lawyers climbing the ranks in district attorney&rsquo;s offices, the governor has selected individuals from diverse legal backgrounds in his judicial appointments for California&rsquo;s appellate courts and highest court, according to Kira Klatchko, a partner at <a target="_blank" href=""><span style="color: #0000ff">Best Best &amp; Krieger LLP</span></a>. Another Brown pick includes James Humes, who had previously worked on the governor&rsquo;s staff and became the first openly gay appellate judge when he was appointed to the First District Court of Appeal.<br /> <br /> &ldquo;The governor hasn&rsquo;t picked people who are just going to fall in line with his thinking; he nominates people who are free thinkers, have their own ideas and are ready to have a dialogue, which is good for lawyers and courts,&rdquo; she said. &ldquo;He&rsquo;s trying to get different voices on the [California Supreme Court]. He has picked people who are recognized as being intelligent, thoughtful and open-minded and who are trying to get the right result.&rdquo;</p> <p>&hellip;</p> <p>&ldquo;I think the governor is trying to pick the best people for the jobs and who will be top legal minds,&rdquo; she said. &ldquo;We need to give these justices a chance to tell us what they think.&rdquo;</p> <em>To read the full article in Law360, click </em><a target="_blank" href=""><span style="color: #0000ff"><em>here</em></span></a><em> (subscription required).<br /> <br /> <em>Photo Courtesy of Stanford University</em> </em>BB&K In The News04 Sep 2014 00:00:00 -0800 Attorneys Discuss Fair Housing Claims, Environmental Legal Issues and Social Media<p>BB&amp;K attorneys <b>Jeffrey Ballinger</b>, <b>Danielle Sakai</b> and <b>John Brown</b> will be joined by many other esteemed California city officials at the League of California Cities&rsquo; Annual Conference and Expo, Sept. 3-5, 2014, in Downtown Los Angeles.</p> <p>BB&amp;K is a sponsor of this event.<br /> <br /> Friday, Sept. 5<br /> 10:30 &ndash; 11:45 a.m.<br /> <strong>&ldquo;Citizen Engagement: New Uses of Social Media and the Body Politic&rdquo; </strong><br /> BB&amp;K Speaker: John Brown, City Attorney of Ontario and the Town Attorney of Apple Valley<br /> Other Speakers: Ontario Assistant City Manager and Public Information Officer Jacob Green, Apple Valley Marketing &amp; Public Affairs Officer Kathie Martin and TW2 Marketing Principal Teresa Warren<br /> <br /> To view a PowerPoint of this presentation, please <a target="_blank" href="88E17A/assets/files/Documents/LCC_ Social Media Presentation.pdf"><span style="color: #0000ff">click here.</span></a><br /> <br /> <u>City Attorneys' Department Track</u><br /> <br /> Wednesday, Sept. 3<br /> 1 &ndash; 2:45 p.m.<br /> General Session<br /> <strong>&ldquo;Fair Housing Claims and Enforcement Actions&rdquo;&nbsp;</strong><br /> BB&amp;K Speaker: Jeffrey Ballinger, City Attorney, Fontana and San Jacinto, Assistant City Attorney, Big Bear Lake</p> <p>Thursday, Sept.&nbsp; 4<br /> 8 &ndash; 9:30 a.m.<br /> General Session<br /> <strong>&ldquo;Environmental Legal Issues and Due Diligence When Cities Acquire Real Property&rdquo;</strong><br /> BB&amp;K Speaker:&nbsp; Danielle G. Sakai, Partner Environmental &amp; Natural Resources</p> <p>For more information on the City Attorneys' Department Track, <a target="_blank" href=""><span style="color: #0000ff">click here.</span></a><br /> <br /> Visit us at Expo booth #507.</p> <p><b>Location</b><br /> Los Angeles Convention Center</p> <p>For more information or to register, please visit the <a target="_blank" href=""><span style="color: #0000ff">League of California Cities Annual Conference &amp; Expo event page.</span></a></p>Conferences & Speaking Engagements03 Sep 2014 00:00:00 -0800 Who Pursued Frivolous Suit Against a City Ordered to Pay Attorneys' Fees and Costs<p>A published appellate opinion last week followed successful arguments by Best Best &amp; Krieger attorneys that an approximate $105,000 award of attorneys&rsquo; fees and costs under Code of Civil Procedure section 1038 applies to a plaintiff who continued to maintain his action for well over a year &mdash; even after learning conclusively that the city was not responsible for damaging him in any way. BB&amp;K attorneys Kira L. Klatchko and Irene S. Zurko represented the City of Corona before the 4th District Court of Appeal (<i>Suarez v. City of Corona</i> (D065949)) and Ross Trindle obtained the summary judgment and award in the trial court.</p> <p>Daniel Suarez was injured in 2008 when he was a passenger in a van whose compressed natural gas tank exploded while being fueled at a City-owned fueling station. Suarez sued the City and others. An investigation by Corona Fire Department and the Southern California Gas Company showed that the explosion was caused by a rupturing of the tank in the van, and not because of any leaks or problems at the fueling station. Suarez continued to pursue the litigation and, following a successful motion for summary judgment in favor of the City, the trial court awarded the City its fees and costs incurred since discovery was completed two years prior.</p> <p>The initial award was made against both Suarez and his attorneys, who the City maintained were largely responsible for directing the litigation.&nbsp;On appeal, however, the Fourth District held that, under section 1038, an award may only be made against a plaintiff, and not against counsel.&nbsp;</p> <p>This case follows the recently issued <i>Settle v. State of California </i>(2014) 228 Cal.App.4th 215, which concluded that the statutory language of section 1038 does not specifically permit an award of fees and costs against counsel for a plaintiff.&nbsp;Both <i>Suarez </i>and <i>Settle</i> invite the Legislature to weigh-in and alter the language of section 1038, if the statute, meant as an alternative to a malicious prosecution action, was intended to punish both attorneys and plaintiffs responsible for bringing frivolous litigation against municipalities.</p> <p>For more information about this case and how it may impact your agency, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=436&amp;format=xml"><span style="color: #0000ff">Appellate Practice Litigation</span></a> group, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <p><i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts03 Sep 2014 00:00:00 -0800 BB&K Partners Named to Sacramento Business Journal's Best of the Bar 2014 List<p><b>SACRAMENTO, Calif.</b>&nbsp;- Please join us in congratulating Best Best &amp; Krieger partners Kara Ueda and Susan Schoenig, who were selected by the <i>Sacramento Business Journal</i> for inclusion on the Best of the Bar 2014 list.</p> <p><a target="_blank" href=""><span style="color: #0000ff">Schoenig</span></a>, a member of BB&amp;K&rsquo;s Labor &amp; Employment, Municipal Law and Litigation practice groups, told the <i>Business Journal</i> that the most important lesson learned in her law career is: &ldquo;Strong advocacy doesn&rsquo;t mean manipulating the evidence or personally attacking your opponent or his or her client, especially since, many times, an opponent today can be a referral source tomorrow.&rdquo;</p> <p><a target="_blank" href=""><span style="color: #0000ff">Ueda</span></a> is in BB&amp;K&rsquo;s Municipal Law, Elections and Land Use practice groups. She told the publication about her top career achievement: &ldquo;I worked with a team of attorneys from Legal Services Northern California and in private practice to successfully advocate on behalf of Sacramento-area residents in the Avondale/Glen Elder neighborhood to convince the Public Utilities Commission to not permit a natural gas storage project underneath the residents&rsquo; homes.&rdquo;</p> <p>The Best of the Bar list is comprised of Sacramento-area attorneys nominated and vetted by their peers. Attorneys do not pay anything to be included.</p> <p style="text-align: center">###</p> <p><b><i>Best Best &amp; Krieger LLP</i></b><i> is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington D.C. For more information, visit </i><i><a target="_blank" href=""><font color="#0000ff"></font></a> or follow @BBKlaw on Twitter.</i></p>Press Releases02 Sep 2014 00:00:00 -0800 Adopts Historic Sustainable Groundwater Management Act<p>On Friday night, the California Legislature adopted a lawmaking package, including Senate Bills 1168 and 1319 and Assembly Bill 1739, and the bills are now awaiting Gov. Jerry Brown&rsquo;s signature. Once signed, the bills would establish the Sustainable Groundwater Management Act and comprehensively regulate groundwater for the first time in California&rsquo;s history. In light of the ongoing drought, the Act intends to provide local and regional agencies with the authority to sustainably manage groundwater basins within their respective jurisdictions.<br /> <br /> To do so, the Act requires that all high and medium priority groundwater basins, as characterized by the Department of Water Resources, be governed by one or more groundwater sustainability agencies by June 30, 2017. Counties will be presumed to be the groundwater sustainability agency for unmanaged areas. Groundwater sustainability agencies for all high and medium priority basins must adopt a groundwater sustainability plan by Jan. 31, 2022. For basins subject to critical overdraft conditions, the plan must be adopted by Jan. 31, 2020.&nbsp;</p> <p>Groundwater sustainability plans must include long-term planning, objectives and goals to achieve basin sustainability within 20 years of plan implementation. Upon adoption of a groundwater sustainability plan, the groundwater sustainability agency must submit an annual report to the Department of Water Resources of groundwater data for the basin, including elevation, aggregate extraction, water usage and any changes in groundwater storage to monitor progress toward this sustainability goal.</p> <p>The Act will impose a number of new requirements on public agencies related to groundwater management and provides avenues for state intervention when local agencies are unwilling or unable to manage the state&rsquo;s groundwater basins. With more than 100 years of experience representing public agencies, and its national reputation on water and environmental issues, BB&amp;K is equipped to handle all issues for complying with these new legal requirements. Among other areas, BB&amp;K attorneys have extensive experience in the following:</p> <ul> <li>Water Rights/Water Usage/Water Supply Planning: Groundwater sustainability agencies have the power to regulate, limit or suspend water extractions from the basin. BB&amp;K has extensive experience with the exercising of water rights and assisting water supply agencies with contingency planning.</li> <li>General Plan Adoption/Amendment: The substantial amendment or adoption of a general plan must consider any adopted groundwater sustainability plan. As experts on general plan issues, BB&amp;K can assist with integrating the review and requirements of those plans with the general plan process.</li> <li>Joint Powers Authorities/Agreements: A groundwater sustainability agency can consist of multiple local agencies. Particularly, where groundwater basins underlie more than one county, coordination and potential exercise of joint powers may be necessary.</li> <li>Negotiation/Mediation: The Act does not include guidance for resolving disputes amongt agencies who may wish to form a groundwater sustainability agency. Additionally, the Act provides that it can apply to Native American Tribes to the extent permitted by law. Thus, negotiating and handling outreach amongt multiple agencies/entities may be crucial.</li> <li>Validation Actions/Administrative Writ Litigation: The Act would allow groundwater sustainability plans to be verified via validation action. Unless the validation statutes are relied upon, the Act also provides that agency actions may be challenged via petition for a writ of administrative mandate.</li> <li>Imposing Fees/Fines and Enforcement Actions: Groundwater sustainability agencies are given the authority to impose fees, and also to impose fines and to undertake enforcement proceedings for violations of groundwater sustainability plans. BB&amp;K attorneys have expertise in the process and requirements for such actions, including the applicability of Proposition 218.</li> <li>Inspection Warrants/Property Access Agreements: The Act requires agencies to conduct baseline studies of groundwater conditions, requiring access to lands overlying the basin.&nbsp;</li> <li>Open Meeting/Public Hearing/Notice Requirements: The Act would impose a variety of public consultation, notice, public hearing and other outreach requirements.</li> </ul> <p>For more information about how the Sustainable Groundwater Management Act will affect your agency, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href=";LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> or <a target="_blank" href=";LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts </span></a>practice groups, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts29 Aug 2014 00:00:00 -0800 v. The McGraw-Hill Companies, Inc. et al<p>[<em>Editor's Note: My colleague, <a target="_blank" href=";A=7480&amp;format=xml"><span style="color: #0000ff">Gary Schons</span></a>, contributed this post. We hope to have more posts from Gary in the future. --Matt Schettenhelm</em>]</p> <p>One thing common to all appellate lawyers&mdash; they love to appeal.<a href=""><img class="alignright size-medium wp-image-147" border="0" hspace="15" alt="Gavel" align="right" src="" width="300" height="225" scale="0" /></a> But, as all appellate lawyers know, the right to appeal is fixed by statute. (<a target="_blank" href=";hl=en&amp;as_sdt=2006&amp;case=3573968055867361468&amp;scilh=0"><span style="color: #0000ff">Trede v. Superior Court (1943) 21 Cal.2d 630.</span></a>) Thus, our ability to practice our craft is dependent on the leave granted by the legislature. <a target="_blank" href=""><span style="color: #0000ff">In this case</span></a>, the issue before a California appellate court was whether a specific provision of the anti-SLAPP statute granting the right to an immediate appeal of an order granting or denying a special motion is effectively nullified by a separate provision of the statute making it wholly inapplicable to enforcement actions brought by state, county or city prosecutors. As the appellate court noted in the preamble to its decision, this issue was &ldquo;thoroughly briefed,&rdquo; and perhaps ominously, oral argument was &ldquo;vigorous indeed.&rdquo; I&rsquo;ll bet it was.</p> <p>The Attorney General filed suit against McGraw-Hill and Standard &amp; Poor&rsquo;s for statutory violations arising out of defendants&rsquo; alleged business practice of inflating their credit ratings of various structured finance securities. The complaint alleged four causes of action, including two for violations of the California False Claims Act (CFCA). Defendants filed a special motion to strike the CFCA causes of action pursuant to section 425.16, subdivision (b) of the Code of Civil Procedure, the anti-SLAPP statute.</p> <p>The superior court denied the motion on the ground that the People&rsquo;s enforcement action was exempt from the special motion to strike procedure pursuant to section 425.16, subdivision (d), which provides that &ldquo;This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.&rdquo; Defendants filed a notice of appeal based on subdivision (i) of the statute which authorizes an immediate appeal from an order granting or denying an anti-SLAPP motion to dismiss. The AG filed a motion to dismiss the appeal relying on subdivision (d) which exempts enforcement actions from the anti-SLAPP statute altogether.</p> <p>The subdivision (d) exemption was part of the original 1992 enactment of the anti-SLAPP statute. In fact, the Governor had vetoed previous versions of the bill just because it did not respond to the AG&rsquo;s concern that it might impair state and local agencies&rsquo; ability to enforce consumer protection laws. The immediate appeal provision was enacted in 1999, some seven years later, in order to effectuate the overriding legislative intent behind the anti-SLAPP that defendants should not have to suffer the expense of a lawsuit to vindicate free speech rights.</p> <p>The appellate court resolved the &ldquo;mutually exclusive&rdquo; claims of the parties by seeking to divine legislative intent. The court ultimately relied on the precept that portions of a statute are to be understood and construed in the context of the entire statute, giving significance to every word, phrase and sentence and part in pursuance of legislative purpose. (<a target="_blank" href=",+1063&amp;hl=en&amp;as_sdt=2006&amp;case=5237497788989812932&amp;scilh=0"><span style="color: #0000ff">Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.</span></a>)</p> <p>The court held that because the exemption embodied in subdivision (d) eliminates any need for the trial court to access the nature of the defendant&rsquo;s conduct as an exercise of free speech or to evaluate the likely merits of the plaintiff&rsquo;s suit&mdash;the procedures set forth in subdivision (b) of the statute&mdash;the denial of a motion premised on subdivision (d)&rsquo;s exemption essentially left nothing to appeal because it is a not a ruling on the &ldquo;merits.&rdquo;</p> <p>The court additionally found that to permit an appeal of an order premised on subdivision (d) would undermine the very exemption from the law that the subdivision carved out, rendering it &ldquo;meaningless.&rdquo;</p> <p>The court rejected the defendants&rsquo; additional argument that the timing of the enactment of the two subdivisions demonstrated that the later enactment was not intended to be affected by the previously enacted complete exemption.</p> <p>Finally, the court noted that the very purpose of the anti-SLAPP statute&mdash;to prevent strategic (and meritless) lawsuits meant to stifle free expression could have no application in such an instance as &ldquo;by their very definition public prosecutor enforcement actions are not SLAPP cases.&rdquo; Thus, permitting an appeal from a motion granted on the basis of the prosecutorial exemption would simply undo the exemption without any justification. And, the court noted that the appeal of the denial of anti-SLAPP motions have, themselves, been widely regarded as abusive.</p> <p>While it is rare to find such a juxtaposition of contrary &ldquo;jurisdictional&rdquo; provisions within the confines of a single statute, this decision points to the fact that the overall statutory scheme and purpose will be accessed in order resolve the statutory ambiguity or tension.</p> <p>Image courtesy of <a target="_blank" href=""><span style="color: #0000ff">Flickr</span></a> by <a target="_blank" href=""><span style="color: #0000ff">Brian Turner</span></a> (<a target="_blank" href=""><span style="color: #0000ff">creative-commons license</span></a>, no changes made).<br /> <br /> &nbsp;</p> <p><em>* This blog post was originally published in </em><a target="_blank" href=""><span style="color: #0000ff"><em>IMLA Appellate Practice Blog</em></span></a><em>, August 27, 2014. Republished with permission. Visit </em><a target="_blank" href=""><span style="color: #0000ff"><em></em></span></a><span style="color: rgb(0,0,255)"><em> </em></span><em>to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs27 Aug 2014 00:00:00 -0800 Review of Comcast-TWC Merger Gives Cities & Schools Opportunity to Improve Broadband Services<p>The California Public Utilities Commission has decided to focus on the cost and availability of broadband services in its review of the proposed merger between the two largest cable and broadband providers in the state: Comcast and Time Warner Cable. Local governments and schools may want to participate to express their concerns on issues, such as broadband access and the &ldquo;digital divide,&rdquo; as well as the proposed merger&rsquo;s effect on safety, reliability and build out to unserved and underserved areas of California.</p> <p>The FCC is reviewing the merger from a national perspective, but this CPUC proceeding provides a unique opportunity for local governments and schools to participate in a review of the merger focused specifically on impacts in California. Under the state video franchising regime adopted in the Digital Infrastructure and Video Competition Act of 2006, the companies do not require approval by local authorities or the CPUC to transfer their state video franchises. However, CPUC approval is required to transfer the companies&rsquo; state-issued telecommunications authorizations, and it is in this context that the CPUC has issued its <a target="_blank" href=""><span style="color: #0000ff">scoping ruling</span></a> focusing on broadband.</p> <p>The CPUC will concentrate on whether the merger will be beneficial on an overall basis to state and local economies, and to the communities in the areas served by the merged company. Among the topics it will examine, the CPUC will look at the effects of the merger on:</p> <ul> <li>Safety and reliability of voice and broadband services, including battery backups provided to consumers;</li> <li>Broadband deployment, especially to elementary and secondary schools and classrooms and unserved and underserved areas of the State;</li> <li>Consumer protection, including impacts or benefits for low-income consumers, accessibility, affordability, outreach and adoption.</li> </ul> <p>The CPUC may require mitigation measures to prevent any adverse consequences of the merger.</p> <p>As part of the proceeding, the CPUC directed its staff to issue discovery requests to the companies on topic areas such as: safety and reliability, complaints and complaint procedures, service terms and conditions, customer privacy, public safety, subscriber counts and network footprints, and services offered including voice, backhaul, wholesale and business services.</p> <p>If you would like to participate in this proceeding, please let us know as soon as possible. Discovery must be completed by Oct. 1, and opening briefs are due Oct. 20.</p> <p>The CPUC plans to issue a proposed decision in December, and adopt a final decision in January. For more information on this CPUC proceeding, please contact the authors of this legal alert listed at right, an attorney in the firm&rsquo;s <a target="_blank" href=";LPA=456&amp;format=xml"><span style="color: #0000ff">Telecommunications</span></a> practice group or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p>Legal Alerts26 Aug 2014 00:00:00 -0800 Files Amicus Brief in Schultz v. Wescom<p>On Monday, IMLA filed its brief in <span style="color: #0000ff"><em><a target="_blank" href=""><span style="color: #0000ff">Schultz v. Wescom</span></a></em></span><em>, </em>a petition stage Supreme Court case, which involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified<a href=""><img class="alignright size-medium wp-image-512" border="0" hspace="15" alt="NinthCircuit" align="right" width="300" height="225" scale="0" src="" /></a> immunity until the completion of discovery. The Ninth Circuit <a target="_blank" href=""><span style="color: #0000ff">held on appeal</span></a> that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it does not amount to a denial of qualified immunity. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable.</p> <p>IMLA&rsquo;s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process, particularly costly discovery, and the Ninth and Seventh Circuits&rsquo; approach effectively denies police officers in those jurisdictions the benefits of qualified immunity and goes against Supreme Court precedent. To read IMLA&rsquo;s amicus brief in this case click <a target="_blank" href=""><span style="color: #0000ff">here</span></a>.</p> <p>Image courtesy of Flickr by <a target="_blank" href=""><span style="color: #0000ff">Ken Lund </span></a>(<a target="_blank" href=""><span style="color: #0000ff">creative-commons license, no changes made</span></a>).<br /> <br /> <br /> <br /> &nbsp;</p> <p><em>* This blog post was originally published in </em><a target="_blank" href=""><span style="color: #0000ff"><em>IMLA Appellate Practice Blog</em></span></a><em>, August 20, 2014. Republished with permission. Visit </em><a target="_blank" href=""><span style="color: #0000ff"><em></em></span></a><span style="color: rgb(0,0,255)"><em> </em></span><em>to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs20 Aug 2014 00:00:00 -0800 Training for State and Local Officials<p>BB&amp;K Partner Kara Ueda was a speaker on the &ldquo;Ethics Training for State and Local Officials&rdquo; panel at the California Association of Sanitation Agencies 59th Annual Conference.</p> <p><b>When<br /> </b>Wed., Aug. 20, 2014<br /> 1 &ndash; 3 p.m.</p> <p><b>Location</b><br /> Marriott Monterey</p> For more information, visit the CASA event page by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.Conferences & Speaking Engagements20 Aug 2014 00:00:00 -0800 BB&K Attorneys Named to The Best Lawyers in America 2015 List<p><b>RIVERSIDE, Calif.</b>&nbsp;- Best Best &amp; Krieger LLP is pleased to announce that 14 of its attorneys were selected by their peers for inclusion on <i>The Best Lawyers in America</i>&copy; 2015 list. The attorneys are from BB&amp;K offices throughout California and represent a diverse cross-section of the firm&rsquo;s practices.</p> <p><i>Best Lawyers</i>, first published in 1983, is based on an exhaustive peer-review survey in which more than 52,000 leading attorneys cast nearly 5.5 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed. To read more about <i>Best Lawyers</i>, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</p> <p>The BB&amp;K attorneys included on <i>The Best Lawyers in America</i>&copy; 2015 list, along with their BB&amp;K office and practice areas for which they were recognized, are:</p> <ul> <li>Eric L. Garner, Los Angeles, Environmental Litigation and Water Law<br type="_moz" /> &nbsp;</li> <li>Arthur L. Littleworth, Riverside, Environmental Litigation, Energy, Natural Resources and Water law<br type="_moz" /> &nbsp;</li> <li>George M. Reyes, Riverside, Corporate Law<br type="_moz" /> &nbsp;</li> <li>Gregory K. Wilkinson, Riverside, Environmental Litigation, Energy, Natural Resources and Water law<br type="_moz" /> &nbsp;</li> <li>Michelle Ouellette, Riverside, Environmental Litigation, Energy, Environmental and Natural Resources law<br type="_moz" /> &nbsp;</li> <li>Edward J. Quinn, Jr., Sacramento, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Harriet A. Steiner, Sacramento, Municipal Litigation and Municipal Law<br type="_moz" /> &nbsp;</li> <li>Iris P. Yang, Sacramento, Municipal Litigation, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Joseph E. Coomes, Jr., Sacramento, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>T. Brent Hawkins, Sacramento, Municipal Law<br type="_moz" /> &nbsp;</li> <li>John E. Brown, Ontario, Municipal Law<br type="_moz" /> &nbsp;</li> <li>Stephen P. Deitsch, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Robert J. Hanna, San Diego, Commercial Litigation<br type="_moz" /> &nbsp;</li> <li>Roderick E. Walston, Walnut Creek, Natural Resources and Water law</li> </ul> <p style="text-align: left">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p>Press Releases19 Aug 2014 00:00:00 -0800 are Entitled to Direct Access to Peace Officer Personnel Records<p><b>Overview:<i> </i></b>A California appellate court held this week that prosecutors are entitled to direct access &mdash; without a <i>Pitchess</i> motion &mdash; to a peace officer&rsquo;s personnel records to determine if there is any material subject to disclosure to the defense in a criminal case as required by the United States Supreme Court&rsquo;s decision in <i>Brady v. Maryland</i>.</p> <p><b>Training Point:<i> </i></b>If this case stands, prosecutors may routinely, and without a court order, obtain direct access to, and examine, a peace officer&rsquo;s personnel records for <i>Brady</i> purposes. Should the prosecutor suspect the existence of <i>Brady</i> material, they will be required to file a <i>Pitchess</i> motion to have that information disclosed to the defense. It appears that this rule will apply to any criminal prosecution in which an officer is a &ldquo;material,&rdquo; critical or important witness. <i>Brady </i>requires the prosecution to disclose any &ldquo;material&rdquo; evidence that might assist the defense as to either guilt or penalty, and includes both exonerating evidence and impeachment of a prosecution witnesses. How each county district attorney&rsquo;s office will implement this decision is yet to be determined and likely will be subject to policy guidelines in each office. This case significantly alters the <i>Pitchess</i> analysis and balancing of interests embodied in the law, as it is hard to see how any court will deny a prosecutor&rsquo;s motion following an unrestricted review that officers have no ability to challenge.</p> <p><b>Summary Analysis:<i> </i></b>In <i>People v. Superior Court (Johnson), </i>the San Francisco District Attorney was prosecuting a domestic violence case against Johnson. Two San Francisco police officers were potential witnesses in the prosecution. Pursuant to an SFPD Bureau Order, the deputy public defender determined and informed the prosecutors that the two officers had material in their personnel files that might be subject to disclosure to the defense under <i>Brady v. Maryland</i>.Prosecutors &nbsp;filed a <i>Pitchess</i> motion asking the court to review the personnel records to determine if material was subject to disclosure under <i>Brady</i> and, if so, to disclose the material subject to a protective order. The Police Department supported the District Attorney&rsquo;s motion. The trial court denied the District Attorney&rsquo;s motion, finding prosecutors had not made a sufficient showing of even potential <i>Brady</i> &ldquo;materiality&rdquo; to require review of the records. The court further held that the <i>Pitchess</i> motion procedure did not apply to prosecutor&rsquo;s efforts to review police personnel records for <i>Brady</i> material, and that Penal Code section 832.7(a) is unconstitutional to the extent it bars the&nbsp;prosecutor&rsquo;s access to police officer personnel records in order to comply with <i>Brady</i>.</p> <p>The Court of Appeal held that Penal Code section 832.7(a) does not preclude direct prosecutorial access to police officer personnel records for purposes of determining the existence of <i>Brady </i>material, as direct prosecution access does not constitute &ldquo;disclosure&rdquo; under the statute. Second, the court held that such direct prosecution access does not breach the &ldquo;confidentiality&rdquo; of the personnel records, as the prosecutor&rsquo;s access does not risk &ldquo;public disclosure,&rdquo; which is what Penal Code section 832.7(a) is designed to protect against. If after reviewing the files the prosecutor believes that <i>Brady</i> material is subject to disclosure to the defense, the prosecutor must then file a motion under Evidence Code 1043, et seq., i.e., initiate the <i>Pitchess</i> process.</p> <p>For more information regarding this case or its implications for your agency and public safety department, &nbsp;please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety</font></a> group, or your <a target="_blank" href=""><font color="#0000ff">BB&amp;K attorney</font></a>.</p> &nbsp;<i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts15 Aug 2014 00:00:00 -0800 BB&K Attorneys Among Daily Journal's Top 50 California Development Attorneys for 2014<p><b>LOS ANGELES</b>&nbsp;- Please join Best Best &amp; Krieger LLP in congratulating Scott Campbell, Steven DeBaun and Michelle Ouellette for being among an elite group of attorneys working to transform California&rsquo;s infrastructure. Whether it&rsquo;s improving water supply or quality or transportation systems, these BB&amp;K attorneys are standouts and have earned spots on the competitive <i>Daily Journal</i> Top 50 Development Lawyers list for 2014.</p> <p>Campbell&rsquo;s work improving the City of Avalon&rsquo;s water infrastructure&nbsp;&mdash; a transformation that got the Catalina Island tourist enclave off Heal the Bay&rsquo;s &ldquo;Beach Bummer&rdquo; list &mdash; was recognized by the <i>Daily Journal</i> editors. Campbell, who serves as Avalon&rsquo;s city attorney, used ingenuity and creativity to secure the funds for the much-needed improvements following Gov. Jerry Brown&rsquo;s dismantling of redevelopment agencies, the <i>Daily Journal </i>reported.</p> <p>&ldquo;People go in the water and there are no posting of warning signs by the County of Los Angeles,&rdquo; Campbell told the <i>Daily Journal</i>. &ldquo;This year&rsquo;s Beach Bummer list didn&rsquo;t have Avalon on it and, next year, we are hoping to get an &lsquo;A&rsquo; on the Heal the Bay list.&rdquo; <a target="_blank" href=";A=1560&amp;format=xml"><span style="color: #0000ff">Campbell</span></a> practices in BB&amp;K&rsquo;s Los Angeles office and is a partner in the Municipal Law and Litigation practice groups.</p> <p>DeBaun is overseeing a $1.2 billion toll lane project for the State Route 91 freeway, as well as a mixed-flow lane for the same freeway, and is also working on a $250 million commuter rail line project to expand Metrolink between Riverside and Perris. Both projects, noted the <i>Daily Journal</i>, have had significant hurdles. DeBaun drafted legislation so the Riverside County Transportation Commission, to which he has served as general counsel for 20 years, could construct and operate the toll facility. Then, there were many other property acquisition and agency coordination issues to work through.</p> <p>&ldquo;It&rsquo;s been a real struggle moving through these agreements,&rdquo; DeBaun told the <i>Daily Journal</i>. &ldquo;I had wondered if we&rsquo;d ever get to the end point, but it&rsquo;s clearly going to happen.&rdquo; <a target="_blank" href=";A=1576&amp;format=xml"><font color="#0000ff">DeBaun</font></a> works in BB&amp;K&rsquo;s Riverside office and is a partner in the Special Districts, Municipal Law and Education Law practice groups.</p> <p>Ouellette was recognized for her work leading the Santa Margarita Water District legal team to a significant victory in a case stemming from a project to supply approximately 50,000 acre-feet of water per year, over 50 years, to water users throughout Southern California. The project is a unique private/public partnership and it&rsquo;s environmental review and designation of the Water District as lead agency were challenged in six different lawsuits. In a separate matter, the <i>Daily Journal</i> editors also noted that, on behalf of the City of Riverside, Ouellette and the BB&amp;K legal team prevailed on a transmission grid project, which addressed potential power shortages.</p> <p>Both of &nbsp;these cases addressed the issue of who should be the lead agency under the California Environmental Quality Act, and, in the Cadiz case, for public/private partnerships. Ouellette told the <i>Daily Journal</i>. &ldquo;I think that if we want to encourage such partnerships, the public agency who is entering into them should be the lead agency, which I believe is fully supported by the relevant [California Environmental Quality Act] statute and guidelines.&rdquo; <a target="_blank" href=";A=1650&amp;format=xml"><font color="#0000ff">Ouellette</font></a> also practices in BB&amp;K&rsquo;s Riverside office and is a partner in the Environmental Law &amp; Natural Resources and Municipal Law practice groups.</p> <p>Read more about the <i>Daily Journal&rsquo;s</i> Top 50 Development Attorneys by visiting the publication&rsquo;s <a target="_blank" href=""><font color="#0000ff">website</font></a> (subscription required).</p>Press Releases14 Aug 2014 00:00:00 -0800 Supply and Infrastructure Bond to be Placed on November Ballot<p>How public agencies seek funding for water quality and storage projects will be impacted if voters approve the state water bond measure passed by the Legislature and signed by Gov. Jerry Brown late Wednesday.<br /> <br /> Just before the deadline for inclusion on the November ballot, AB 1471, also known as the Water Quality, Supply, and Infrastructure Improvement Act of 2014, was approved to replace the previous bond measure of $11 billion, which was deemed too costly. If passed by voters, the new bond measure includes $7.5 billion for a water quality, supply and infrastructure improvement program.<br /> <br /> Specifically, the measure would allocate $520 million for projects to improve water quality and wastewater treatment, and provide more reliable safe drinking water. Priority for this funding would be given to projects benefitting disadvantaged communities. Also, of the $7.5 billion made available by the bond measure, $2.7 billion would be available for water storage projects. Storage projects would be selected by the California Water Commission through a competitive process that ranks projects based on expected return and overall public benefit. However, to be eligible, applicants for storage project funds must first complete feasibility studies and draft environmental documents.</p> <p>Additionally, the measure would allocate nearly $1.5 billion for watershed protection and restoration projects; $900 million for groundwater cleanup and management; $810 million for integrated regional water management, water conservation and stormwater capture; $725 million for water recycling projects and facilities; and $395 million for flood management projects.</p> <p>In various parts of this bill, statements are made that funds from this bond shall not be expended to pay the costs of Delta conveyance facilities (i.e. twin tunnels), and that those costs shall be the responsibility of the agencies that benefit from those facilities.</p> <p>If approved by voters, public agencies seeking funding for any projects will need to evaluate how their project will be prioritized and ranked for eligibility based on the various criteria used for each category of funding. This includes the availability of additional federal, local or private funding, and an evaluation of both technological and economic feasibility.</p> <p>For more information about how the Water Quality, Supply, and Infrastructure Improvement Act may affect your agency and its water projects, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> and <a target="_blank" href=";LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts</span></a> practice groups, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K</span></a> attorney.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts14 Aug 2014 00:00:00 -0800