Government Liability Update

Non-Resident of City Lacks Standing to Challenge City's Spending of Sales Tax

In Reynolds v. City of Calistoga, published February 3, 2014, the First District Court of Appeal, Division Five, affirmed the dismissal on demurrer of a suit challenging the defendant city's use of Napa County sales tax revenue.  He sought to make the sales tax revenue available to settle a separate suit he had brought challenging operation of a reservoir.  He was not a resident of the city or the county, and did not pay taxes there apart from sales tax.  The trial court sustained the city's demurrer, on the ground that the plaitniff lacked standing to bring the suit.  He did not qualify for taxpayer standing, because paying sales tax is insufficient ground for that standing.  He did not qualify for standing as a citizen suing in the public interest; that is a discretionary exception to the beneficial-interest standing requirement for writ relief, and he did not petition for a writ.  He also did not show that he had standing as a person suing to protect a public trust.

Attorney Witness Statements -- including Statements Taken by Government Investigators for Public Entity Defense Attorneys -- are Entitled to Work Product Protection

In Coito v. Superior Court (State), published June 25, 2012, the California Supreme Court resolved a split in authority over whether witness statements taken by an attorney (or an attorney's agent) are entitled to work product protection. It did so by discussing whether recorded witness statements concerning a drowning case, taken by special agents from the Bureau of Investigation of the California Department of Justice were protected work product.

The attorneys for the state provided the agents with questions they wanted the agent to ask the witnesses. The state's attorney used the contents of one witness's recorded interview in deposing that witness.

The Supreme Court concluded that witness statements taken by attorneys or their agents are entitled by law to at least qualified work product protection. It reached this conclusion based on the history of work product protection in California. Treating them as work product prevents one side from benefitting from the other's industry; and encourages attorneys to fully investigate their cases. A particular statement may be entitled to absolute work product protection if the attorney makes a sufficient showing that the statement reflects the attorneys thoughts, impressions, and opinions. The court disapproved contrary lower court language in several cases.

The Supreme Court also resolved a split in authority over whether an interrogatory asking for a list of witnesses whose statements have been taken invades work product privilege. It held that such lists are not automatically deemed work product; but that a showing could be made on a case-by-case basis that the attorney's selection of the witnesses from whom to take statements reflects the attorney's thoughts and impressions and is thus protected work product.

Public Entities May Retain Private Counsel on Contingency-Fee Basis to Prosecute Civil Nuisance Actions

In County of Santa Clara v. Superior Court, published July 26, 2010, the California Supreme Court retreated from a broad holding in a previous case, and held that public entities can retain private counsel on a contingency-fee basis to prosecute civil suits to abate nuisances.  Recognizing the potential conflict of interest, the Court imposed limits on such representations.  Public entity attorneys must supervise the private attorneys, and retain complete control over the private attorneys' actions.  The contingency fee agreements must provide for that control.  And the prosecutions must not involve fundamental constitutional rights, such as free speech.

Coroner Has No Duty to Obtain Family's Consent Before Retaining Organ for Study after Autopsy

In Benson v. Superior Court, filed May 25, 2010 and ordered published June 22, 2010, the 1st DCA held that, under California law, neither the coroner nor a doctor employed by the coroner owes a duty to a decedent's next of kin to obtain the family's consent before retaining an organ (in this case, a heart) from the decedent's body after autopsy.  The plaintiff defeated summary judgment in the trial court by presenting an expert's declaration that retaining the entire heart was not necessary for clinical diagnostic purposes.  The appellate court ruled that summary judgment should have been granted, because the coroner may retain an organ for study or to determine the cause of death, without seeking the next of kin's consent.

Safe Water Drinking Act's Obligation for Counties to Oversee Drinking Water Systems Does Not Impose Mandatory Duty to Notify Users of Dangers

In Guzman v. County of Monterey, published today, the California Supreme Court rejected an argument that the Safe Water Drinking Act requires counties that oversee privately-owned water systems to report unsafe conditions in those water systems to the users.  The Act places that responsibility on the system owners.  The Court therefore held that the defendant county could not be held liable under Government Code section 815.6 to users exposed to water with unsafe flouride levels.

Owner of Condemned Property Not Entitle to Compensation for Goodwill unless an Ongoing Business Exists on the Condemned Property

City and County of San Franciso v. Coyne ruled that owners of a condemned parcel on which they planned to build a condo complex were not entitled to compensation for the revenue they might have received on the project.

Public Official Can Be Held Liable for Defamatory Speech

In Manufactured Home Communities, Inc. v. County of San Diego, a divided 3-judge panel of the Ninth Circuit ruled that a county supervisor who made hostile public comments about a mobilehome park owner could be held liable if the comments amounted to false statements of fact.  The appellate court reversed a district court decision granting an anti-SLAPP motion to strike the lawsuit.   The majority ruled that a jury could find some of the supervisor's statements to be false assertions of fact, rather than hyperbole or opinions.

The dissenting judge argued that the mobilehome park owner had failed to establish that any of the supervisor's statements were false; and that an anti-SLAPP motion was therefore appropriate.