Government Liability Update

Action to Recover Developmental Impact Fees under the Mitigation Act Is Subject to One-Year Statute of Limitation, but Accrual Is Ongoing

In County of El Dorado v. Superior Court (Austin), ordered published November 26, 2019, the Third District Court of Appeal denied denied the county's petition for a writ reversing the trial court's decision overruling the county's demurrer.  The plaintiffs sued the county to recover development impact fees under the Mitigation Fee Act (Gov. Code, § 66000 et seq.), which requires a public entity to make findings justifying the continued collection and retention of the  fees within the prescribed period of five years, or else refund the unexpended portion fees to the current owner of the property.  The county contended the suit was barred by the statute of limitations.

The appellate court agreed with the county that the one-year statute of limitations under Code of Civil Procedure section 340(a) applied, because the fee refund under the Act is in the nature of a penalty or forfeiture:  It may be recovered regardless of whether the current property owner paid the fee, and thus applies regardless of whether the plaintiff suffered an injury.  But the trial court correctly ruled that because the obligation to make the findings is ongoing, there is an ongoing severable wrong, and the statute of limitations runs at the time of the actionable breach.  The statute of limitations therefore does not bar suit for refund of any payments made after the deadline without nexus findings within the period of limitation.  Because the statute of limitations did not bar the action completely, the trial court properly overruled the statute of limitations.

CPRA and Private Attorney General Fees Appropriate for Requesting Party Intervening in Reverse-CPRA Action Between Public Agencies

In City of Los Angeles v. Metropolitan Water Dist. of So. Cal., West Basin Municipal Water Dist., and The San Diego Union-Tribune, LLC, published November 19, 2019, the Second District Court of Appeal, Division 8 affirmed in part and reversed in part a trial court decision awarding fees in a reverse-CPRA action.  MWD, a cooperative water wholesaler with 26 members (including the DWP and the other intervening utilities), began a turf removal rebate program.  The utility of the program was questioned.  A reporter for the Union-Tribune made a California Public Records Act request to MWD for information about the participants in the turf program.  Instead of denying the request (which would have entitled the newpaper to file a CPR action compelling disclosure), MWD provided the request to DWP. DWP objected to the disclosure.  At DWP's request, MWD released redacted information.  The newspaper objected to the redactions.  DWP filed a reverse-CPRA action against MWD, seeking to enjoin it from releasing any information about anyone who participated in the turf program, regardless of whether they were DWP customers.  Reverse-CPRA actions are not authorized by the CPRA, but have been recognized by the Second District Court of Appeal.  The newspaper intervened in the action, and filed a CPRA cross-petition against MWD to compel disclosure of the information.  The court issued a TRO limited to DWP customers.  Other utilities who were members of MWD joined DWP's lawsuit.  The trial court ruled that DWP was co-custodian of the records.  It denied DWP's petition for writ of mandate and granted the newspaper's CPRA.  The court awarded the newspaper attorney fees under the CPRA against MWD for the newspaper's work on the CPRA cross-petition.  It granted the newspaper fees under Code of Civil Procedure section 1021.5--the private attorney general statute--against DWP and the intervenor utilities.   DWP and the utilities appealed the award under section 1021.5.  The newspaper cross-appealed the order to the extent it denied fees for the newspaper's reply papers.

The court of appeal affirmed the fee award.  It agreed with a previous published decision from another division of the court that section 1021.5 fees may be awarded to an intervening requesting party in a reverse-CPRA action.  DWP was seeking to restrict the public's right to access information that was relevant to an issue of public interest.  The issues did not benefit only the private interests of a small  group.  DWP's motives (to protect its customers' privacy) were irrelevant.  The newspaper prevailed on the disclosure issue, and DWP was the co-custodian of the records.  The intervening utilities were also proper subjects of the fee award.  They were not akin to amici curiae; they were active participants in the lawsuit.  The ability of the public to monitor expenditure of public funds is a significant public benefit.  The trial court acted within its discretion in not reducing the fee for work on issues on which the newspaper did not prevail.

On the cross-appeal, the court held that the trial court erred in declining to award fees for work on the reply briefs, without explanation.

For Purposes of Collective Bargaining, County Was Joint Employer of Nonphysician Employees of Private Clinics Working with County

In County of Ventura v. Public Employment Relations Board, published November 21, 2019, the Second District Court of Appeal, Division 6 affirmed a PERB decision that nonphysician employees of satellite medical clinics owned by private corporations but under
contract with Ventura County Medical Center to provide medical services were entitled to SEIU representation.  The county had refused to process the SEIU's petition to represent the employees on the ground that the private corporations were the employees' sole employers.  PERB found that the county was the sole employer of the employees, or alternatively that the county and the corporations were joint employers.  The county petitioned the court of appeal for extraordinary relief challenging PERB's decision.

The appellate court concluded that substantial evidence supported PERB's decision that the county and the private corporations were joint employers.  The county extensively controlled the terms and conditions of employment, controlled compensation and staffing decisions, and had a right to control patient care and training.