Government Liability Update

Statute That Prescribes a Negative HIV Test "Shall Be Required of" a Boxer Imposes Mandatory Duty on State Not to Issue License Without the Test

In Corona v. State of California, published today, the 4th DCA, Division 2, reversed the dismissal on demurrer of a boxing referree who sued the state after an HIV-positive boxer fought in a match he referreed, exposing the referree to HIV.  Business & Professions Code section 18712 requires boxers seeking renewal of their licenses to provide evidence to the boxing commission of negative HIV, Hepatitis B and Hepatitis C tests; and to provide the same negative tests before boxing in a match.  Although the statute appears to impose a duty on the boxer, the court held that the statute actually imposes a mandatory duty on the Commission not to issue boxing licenses or allow participation in matches of boxers who fail to provide the negative tests.  It therefore concluded the referree stated a cause of action under Government Code section 815.6.  It reversed the trial court's conclusion that the licensing immunity under Government Code section 818.4 applied.  That immunity, concluded the court, applies only to discretionary licensing decisions; and does not apply to violation of a mandatory duty.

Changed Conditions Do Not Defeat Design Immunity if the Design Anticipated the Change

In Alvis v. County of Ventura, published today, the 2^nd District Court of Appeal, Division Six, held that while a change in conditions that renders a design unsafe can result in loss of Government Code section 830.6 design immunity to dangerous condition liability, the entity does not lose the immunity if the public entity approved a design that contemplated the possibility of that specific change of condition.  The court also rejected that argument that discretionary approval of the design was insufficient to create immunity if the official who approved the design was not made aware of an expert’s opinion that the design was safe. 

California Cities Have the Right to Regulate Cellphone Towers Based on Aesthetics

In 2006, the 9th Circuit ruled that under the federal Telecommunications Act and state law, California municipalities could not regulate the construction of cell phone equipment in public rights of way on aesthetic grounds.  That portion of the 9th Circuit's opinion was subsequently depublished.  A California appellate court decision concluded that municipalities could regulate the equipment on aesthetic grounds; but that decision was depublished when the California Supreme Court granted and then dismissed review of the case.

Today, in Sprint v. City of Palos Verdes Estates, the 9th Circuit ruled that cities have a right under the California Constitution to regulate construction to protect aesthetics concerns; and that neither the Telecommunications Act nor California statutory law prevent cities from applying that power to cell phone equipment in public rights of way.

Our office is working with the law firm of Cihigoyenetche, Grossberg & Clouse in representing the city on appeal in this case.

Plaintiff Can Reserve Right to Litigate Federal Claims in Federal Court Even if State Court Strikes Reservation of Right to Do So

In Los Altos El Granada v. City of Capitola, published today, the 9th Circuit concluded that a mobile home park challenging a rent control ordinance as a "taking" could reserve its right to assert its federal takings claims in federal court while exhausting its state court remedies by suing for inverse condemnation in state court.  The park had asserted an England v. La. State Bd.of Med. Exam’rs, 375 U.S. 411, 417 (1964) reservation in its state court complaint, which asserted the park's right to litigate its federal claims in state court.  The trial court struck the reservation as "irrelevant."  Later, when the park's federal action was stayed to permit the state court action to be completed, the park asserted another England reservation.  The state court struck that one on the ground that the federal court was abstaining from deciding the case.

The 9th Circuit held that the district court erred in dismissing the federal action on the ground that the state court had struck the reservations.  Although the 9th Circuit held the state court's decision to strike the reservations could not be challenged in federal court (due to the "full faith and credit" rule), it also held that an express England reservation isn't necessary to preserve a plaintiff's right to litigate in federal court, if the facts show that the plaintiff is being forced to litigate its claims in state court.  Here, the state court's action in striking the England reservations established that the plaintiff was being forced to litigate its takings claims in state court.