September 2009

Diane Kindermann Henderson is a partner of Abbott & Kindermann, LLP and will be speaking at the California Construction & Industrial Materials Association Conference. She will be speaking about 2009 Land Use and Environmental Law Update: Cases, Codes, and Regulations. For more details, including RSVP information visit http://www.calcima.org/html/what_s_new.html.

By Cori Badgley

The Compassionate Use Act (Health and Safety Code § 11362.5) and the Medical Marijuana Program (Health and Safety Code § 11362.5) legalized the use and distribution of medical marijuana subject to specific restrictions outlined in the statutes. Many cities, such as the City of Claremont, do not have areas zoned to permit medical marijuana dispensaries. In City of Claremont v. Kruse (2009) (Case No. B210084), the Court of Appeal, Second Appellate District addressed whether the state statutes preempted the City from refusing to permit a medical marijuana dispensary and declaring it a nuisance. The court held that the City’s actions were not preempted and that the defendants continued operation of the medical marijuana dispensary constituted a nuisance.

Continue Reading City Not Required to Zone for Medical Marijuana

By William W. Abbott

California’s historic settlement patterns are far more diverse then what would first appear to be the case.  In addition to the religious (San Bernardino, Compton, Whittier ), the ethnic (Solvang, Ft. Ross) and the timber company towns (Samoa, Westwood, McCloud), there are numerous spiritual, philosophical, labor and socialist undertakings in this state’s history. This article is an overview of the labor/socialist origins of the Kaweah Colony, located in eastern Tulare County.

Continue Reading The Kaweah Colony: A Socialist Settlement in the 1880’s

By Cori Badgley

In CEQA cases, the courts evaluate whether the agency proceeded in the manner required by law and whether substantial evidence supports the agencies decision.  In other words, did the agency act reasonably in its analysis.  This is the crux of City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889, in which the City of Long Beach (“City”) challenged the adequacy of an EIR for the construction of a high school in the City.  Finding that the school district acted reasonably in its analysis of all the issues challenged by the City, the court upheld certification of the EIR.

Continue Reading Appellate Court Emphasizes CEQA’s Focus on Reasonableness

By Leslie Z. Walker

According to Las Lomas Land Co., LLC v. City of Los Angeles (Sept. 17, 2009, B213637) ___ Cal.App.4th ___, the long standing rule that CEQA does not apply to projects rejected or disapproved by a public agency, allows a public agency to reject a project before completing or considering the EIR.  In Las Lomas, the Court of Appeals for the Second Appellate District made clear that a city may stop environmental review mid-stream and reject a project without awaiting the completion of a final EIR.  While this holding may avoid wasting time and money on an EIR for a dead-on-arrival project, it will also make it harder for projects to stay in play until the entire environmental document is complete.

Continue Reading CEQA Does Not Apply to Project Disapproval, Even if the EIR is Underway

By Glen C. Hansen

Civil Code section 895 et seq. (i.e., the “Fix-it Law”) establishes procedures and requirements with respect to construction defect cases involving homes and homeowners.  Section 910 sets out “prelitigation procedures” to be followed by plaintiffs before a suit can be filed, procedures that can be summarized as “notice and opportunity to repair.”  Section 912 in turn sets out certain requirements for builders with respect to documentation and information to be provided to homeowners.  As a sanction, or incentive to comply, section 912 also provides, in subdivision (i), that “any builder who fails to comply with any of these requirements within the specified time is not entitled to the protection of this chapter, and the homeowner is released from the requirements of this chapter and may proceed with the filing of an action, in which case the remaining chapters of this part shall continue to apply to the action.”  In Standard Pacific Corp. v. Superior Court of San Bernardino County (August 14, 2009) 176 Cal.App.4th 828, the Court of Appeal of California, Fourth Appellate District, addressed the issues of whether a plaintiff homeowner who does not follow the procedures set out in section 910 must first establish the builder’s noncompliance with section 912, or whether the plaintiff is free to file suit and need not step back to perform the “notice and opportunity to repair” position until the builder affirmatively establishes that it has complied with its own obligations. The Court of Appeal held that the burden was upon the plaintiff homeowner to either comply with section 910 or to establish that the plaintiff did not have to follow those procedures.

Continue Reading Homeowners have the Burden of Proving Builder Failed to Comply with “Fix-it Law” Before Filing Construction Defects Action

By William W. Abbott

Well, Mark Twain got that right. Beginning with the voter approval in 1978 of Proposition 13, California voters and public agencies have been at odds with each other over local government revenue strategies.  The dilemma for local government being of course, that residents demand high level of services but expect someone else to pay for it. Walking the fine line between service delivery and voter enacted limitations on revenue streams, local agencies continuously explore and implement new strategies to capture new revenue streams, and over time, the trend has been to link charges to services provided. In the most recent levy case, the City of San Diego attempted to forge new territory by charging a processing fee for the purpose of offsetting costs associated with sending tax bills. In other words, a processing fee imposed on top of, and for the purpose of, collecting a general tax collected from property owners.

Continue Reading “What is the Difference between a Taxidermist and a Tax Collector? The Taxidermist Takes Only Your Skin.”

By Glen C. Hansen

In County of Sacramento v. Sandison (May 29, 2009) 174 Cal.App.4th 646, the Court of Appeal of California, Third Appellate District, held that the limitation on attorneys’ fees awards in Government Code section 25845, subdivision (c), does not apply to awards granted under Civil Code section 1717, and Code of Civil Procedure sections 1032, 1033.5, based on an attorneys’ fees provision in a written contract.

Continue Reading Limits on Attorneys’ Fees Awards Under Government Code Section 25845 are … Limited.

William W. Abbott, partner of Abbott & Kindermann, LLP will be speaking on the following topic on Monday September 14, 2009 at 11:45 a.m.

“Preservation of Local Government Approvals”

Location:

  • The Firehouse Restaurant – Golden Eagle Room
  • 112 Second Street
  • Old Sacramento, California
  • Telephone: (916) 442-4772

Date/Time:    

  • Monday, September 14, 2009 at 11:45 a.m.