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By Rob Hofmann

On July 21, 2008, the California Supreme Court again pointed out the potential for devastating consequences when the terms in a boilerplate contract provision are triggered. Specifically, the Court upheld a fairly typical construction contract indemnification provision that required a subcontractor to defend the general contractor for claims and arising out of the subcontractor’s work, even though a jury absolved the contractor was subsequently absolved of any liability. This even included the general contractor’s costs of suit against the subcontractor to resolve the dispute over the scope of the indemnification provision.
Continue Reading BOILERPLATE LANGUAGE BITES AGAIN – Subcontractor Must Pay Developer’s Defense Costs Despite Jury Finding Subcontractor Not Negligent

By Cori Badgley

In Los Altos Golf and Country Club v. County of Santa Clara (June 30, 2008) 2008 Cal.App.Lexis 1149, plaintiffs brought a class action demanding a refund from the County of sewer service charges paid by plaintiffs on the grounds that the fees violated Article XIII D of the California Constitution and the Health and Safety Code. Instead of allowing plaintiffs to make any substantive arguments, the County claimed that the case should be dismissed because the plaintiffs had failed to pay the fees under protest, as required by the Health and Safety Code. The Court of Appeal, Sixth Appellate District agreed with the County and dismissed the case. Sewer service charges must first be paid under protest in order to later request a refund.
Continue Reading Before Challenging Sewer Service Charges in Court, Thou Shall First Protest

By Glen Hansen

The recent decision by the Court of Appeal for the First Appellate District in Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, vividly illustrates the conflict that can arise between the desire by local voters to limit housing growth, the local jurisdiction’s obligations under state law to allow construction of low and moderate income housing, and the local officials’ reluctance to thwart the voters’ desire in order to meet those state obligations. That conflict invariably leads to litigation, even years after a no-growth initiative is passed by the voters.
Continue Reading Is the Local No-Growth Initiative Conflicting With The Local Low-Income Housing Obligations? When Is It Time To Sue?

By William W. Abbott and Janell M. Bogue

The 2003 California Supreme Court decision of Gardner v. County of Sonoma (2003) 29 Cal.4th 990 left unanswered the status of pre-1929 subdivision maps. The California Court of Appeal, First Appellate District in Witt Home Ranch, Inc. v. County of Sonoma (July 29, 2008) 2008 Cal. App. Lexis 1160 has now tackled one aspect of this issue in the context of a 1915 subdivision map.
Continue Reading Revisiting History: When is a Recorded 1915 Map Not a Subdivision Map?

By Cori Badgley

In the area of prescriptive easements, courts and practitioners have been challenged by the issue of who has the burden to prove “adverse use.” “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and adverse to the land’s owner.” Some courts have held that by providing evidence that the use is open, notorious and continuous, a presumption arises that the use is also adverse, and therefore, the defendants, and not the plaintiffs, must prove that the use is not adverse. The Court of Appeal, Second Appellate District in Grant v. Ratliff (July 16, 2008) 2008 Cal.App.Lexis 1063, disagreed with these courts.
Continue Reading Long-time Debate Over Presumptions in Prescriptive Easement Cases Settled by Second Appellate District

By Cori Badgley

Generally, when a plaintiff challenges the action of a government agency, the plaintiff has the burden to overcome the presumption that the government agency acted lawfully. In regards to special assessments falling within the protections of Proposition 218, the burden shifts. When a plaintiff challenges a special assessment, the government agency has the burden to prove that it acted lawfully, and the court reviews the agency’s decision de novo.
Continue Reading California Supreme Court Rules Open Space Assessment is Invalid Special Tax Under Proposition 218

By The Attorneys of Abbott & Kindermann, LLP

Readers of the Land Use Law Blog know that we host an annual land use update; the most recent on January 24, 2008. At that event, we review the most important developments in land use, environmental, and real estate law from the previous year. Our next annual update is planned for January 22, 2009 and more details will be forthcoming.

This year, we are also providing a mid-year update on the blog, covering the most significant developments from the first half of this year. Click on the link below to read the entire mid-year update and listen to audio commentary.
Continue Reading Abbott & Kindermann Land Use Law Blog 2008 Mid-Year Review

By Leslie Walker

For the general public, the most exciting events so far this year on the climate change front have been at the national level. The Secretary of the Interior announced that the Polar Bear is a threatened species under the Endangered Species Act (16 U.S.C. § 1531 et seq.) because reduced sea ice coverage threatens its habitat; and Congress hotly debated, and then rejected, a bill to reduce greenhouse gas emissions to 66% below 2005 levels by 2050.Continue Reading Mid Year Heat Up: Climate Change January-July 2008