May It Please The Court
Quote of the Day - I make a fortune from criticizing the policy of the government, and then hand it over to the government in taxes to keep it going.
Government Loses Big Battle Over Excessive Developer Fees
Right before Christmas and Hanukkah last year, the California Supreme Court quietly issued a decision that will have long-reaching effects across the state, perhaps to the point that cities and counties may raise taxes for fees they can't now collect from builders (and consequently new home buyers). Builders have long groused about both the time it takes to get land development approval and the costs. One builder, however, recently chose to challenge one City's fees as excessive.
The builder won. In a big way.
Barratt American, a Carlsbad builder somewhat new to California, claimed that it had paid more than $143,000 in building permit and plan review fees for at least 83 building permits for the construction of single-family homes, or $1,722.89 per home. The City's ordinances allowed it to charge $550.50 per home. Barratt claimed that the City of Rancho Cucamonga had collected more than $1,000,000.00 in excess building fees in one year from all builders, and sought a refund of the money it had paid in.
While the City succeeded in its argument that four of five causes of action Barratt filed should be dismissed. It didn't succeed, however, in the most important of the five: the one cause of action that asked for a refund of excess fees. Ultimately, the decision will lead to lower new home prices to consumers, and lower revenues to cities. Barratt has a similar case against the City of Encinitas pending before the Supreme Court, which now will most likely be handled the same way.
Cities and counties across California now need to readjust their fee, accounting and audit structure to meet the requirements explained by the California Supreme Court. Essentially, cities must now price their fees commensurate with the cost of providing the services of planning review to obtain development permits to meet the Court's edict.
In government-speak, that result means less money coming in to local government, even though the fees are supposed to cover costs. Does that mean that with less revenue, local governments will now try to raise taxes elsewhere to cover the lost revenue? Let me put it this way: how many times have we seen taxes go down?
Review Of New 2006 Legislation For California
Attorney James Toledano from Santa Ana gave his twenty-sixth annual presentation of new laws of interest to California business litigators at the Orange County Bar Association Business Litigation Section meeting today. Jim was kind enough to give me permission to post his review, subject to his wonderful disclaimer below, for your use:
Small Claims (CCP § 116.221, etc.)
Raises jurisdictional limit, for individuals only, to $7,500, requires itemization of debt and payments, raises fees, requires pro-tems to pass law and ethics course every three years, modifies deadline for cases to be heard, limits recoverable costs of service of process, limits court's power to correct decision.
Sanctions (CCP §§ 128.6, 128.7)
Removes the hold on sanctions under CCP § 128.6 (which replicates § 128.5 as to current cases) and makes § 128.7 no longer subject to automatic repeal.
Disqualification of Judge Who Discusses Employment with "Neutrals" (CCP § 170.1)
Abrogates interpretation of law in Hartford Casualty Ins. Co. v. Superior Court (C3 Entertainment, Inc.) (2004) 125 Cal.App.4th 250, 254-258 (rev. granted 2005) in which the Court of Appeal read the law expansively to disqualify judges who had contacts with ADR providers or those who worked for them.
Statute of Limitations, Discrimination Involving Violence (CCP § 338)
Amends three-year statute to add violations of Civil Code § 51.7, a part of the Unruh Civil Rights Act that makes acts of violent discrimination unlawful.
Insufficient Filing Fee (CCP § 411.21) [eff. July 19, 2005]
Provides that insufficient fee for first paper is grounds to void filing, sets procedures.
Service of Subpoena in Gated Community (CCP §§ 415.21)
Adds service of subpoena as basis to gain entry to gated community, but does not affect existing law as to substituted service on guard.
Proof of Service (CCP §§ 412.10, 417.30, 583.210, etc.)
Provides that clerk is to retain original summons and replaces requirement of "return of summons" with requirement that proof of service of copy of summons be filed.
SLAPP Motion Hearing Date (CCP § 425.16)
Makes it the duty of the clerk, not the party, to set SLAPP motion within the 30-day period and abrogates contrary Court of Appeal decisions.
SLAPPback Motions (CCP § 425.18)
Imposes regulations and sanctions analogous to anti-SLAPP law on motions to strike causes of action arising out of the grant of a SLAPP motion in an earlier action.
Injunctions Against Violence (CCP §§ 527.8, 527.10)
Expands effect of injunction against violence by employee against employer, prohibits person against whom any personal injunction is granted from legal access to personal records of person granted the injunction.
Offers to Compromise (CCP § 998)
Sets out specific terms to be included in 998 offer and provides that written acceptance may be made by attorney.
Electronic Summons (CCP § 1010.6)
Requires court to issue official summons upon request of party electronically filing complaint.
Subpoenaing Personal Consumer Records (CCP § 1985.3)
Provides that consumer need not give notice to self when subpoenaing own records.
Mediation Pilot Program Rules (Rules 1640-1640.8, CRC)
Unruh Civil Rights Act (Civ. Code §§ 51, 51.7, 51.8, 52, 53)
States that civil rights law bars discrimination and violence arising from marital status or sexual orientation, that this is intended to clarify, not change, existing law and adds definitions of certain terms.
Mobilehomes (Civ. Code§§ 798.19.5 ff.)
More changes in mobilehome regulatory law.
Disclosure of Supplemental Tax Bills (Civ. Code § 1102.6c)
Requires seller to disclose possibility of supplemental tax bills.
Form of Acknowledgment (Civ. Code § 1189)
Requires acknowledgments to be exactly as provided by statute.
Financial Record-keeping and Disclosure, HOA (Civ. Code §§ 1357.120 ff)
Continues process of regulating the conduct of homeowner associations.
HOA Liens for Assessments (Civ. Code §§ 1367.3, 1367.4)
Greatly limits power of homeowner associations to record liens for unpaid assessments.
Discrimination in Approval of Changes in Occupied Residence (Civ. Code § 1378)
Applies Fair Employment and Housing Act to decisions to approve or reject proposed owner's changes or modifications to residence.
Postponement of Foreclosure Sale (Civ. Code §§ 2924b, 2924g)
Permits postponement of foreclosure sale for a total of 365 days, rather than 3 times, before new notice of sale required; provides that email address is not an "actually known address" for valid service.
Motor Vehicle Purchase Contracts (Civ. Code § 2981, 2982, 2982.2)
Provides for further disclosures in motor vehicle purchase contracts.
Stop Notice Releases (Civ. Code § 1936)
Provides manner in which a stop notice release may be made enforceable.
Filing fees (Gov. C. §§ 70600ff; various provisions of CCP)
Filing fees have generally been made reasonably uniform, and of course increased. Exceptions are where a county (e.g., Riverside) has an added fee to pay for courthouse construction. In addition, as part of the state takeover of the courts system, makes all fees payable to the court, rather than to local jurisdictions.
There were the usual clean-up laws (three, again this year), this time correcting such things as references to the proper section of the Discovery Act, as amended effective last July 1.
"The selection of the statutes described, and the descriptions thereof, are the choice solely of the author of this document. His opinions, biases and other ideas are solely his responsibility and are not that of the Orange County Bar Association, the Business Litigation Section thereof, or of any person to whom he may be related or connected by blood, former marriage, potential marriage, domestic partnership or civil union, friendship, former friendship, former partnership, or past or future political or any other affiliation, nor of his former campaign committee(s) or, for that matter, any rational person."
Just as an FYI, Jim Toledano selects new statutes of interest to business litigators. This list does not include all new statutes for this coming year, and not all those that may be of interest to business litigators, either. There are other changes to the law not included here, so consult with your favorite attorney if you want to know more. Remember too, these are only summaries, not the actual laws.
Butterflies Or Buggies? Tough Choices For Nevada Sand Dunes
It's a fair bet that we're not going to run out of dune buggies or off-roaders anytime soon. According to environmentalists, however, we are going to run out of the Sand Mountain Blue Butterfly, which has a life span of about a week. Back in April 2004, the environmentalists filed a petition to designate the Butterfly as endangered, but the United States Fish & Wildlife Service has done nothing in response, allegedly due to a lack of funds.
Today the Center for Biological Diversity and a coalition of other environmental groups filed a Complaint against the USF&WS to force listing the Butterfly as an endangered species and designate the Sand Mountain Recreation Area in western Nevada as critical habitat.
The off-roaders counter that off-road space is just as endangered. AP writer Scott Sonner asked Richard Hilton of Reno, a board member of the Friends of Sand Mountain, a group of off-road enthusiasts, who replied, "If it did become listed, no telling what type of restrictions they could do out there."
According to environmentalists, critical habitat designations don't have any effect other than requiring those who want to use the designated area to consult with federal agencies regarding the consequences of use of the area. While technically that's true, it ignores the practical result: after a critical habitat designation, there is limited or no use of the designated area.
In a CBD press release on the Complaint, Daniel R. Patterson, Desert Ecologist with the Center who formerly worked with BLM said, “This attractive blue butterfly lives only at Sand Mountain, BLM [Bureau of Land Management] is unethically letting its dunes habitat be destroyed by off-road access, and the Bush administration won’t even follow the law to read our petition and consider protection. The Sand Mountain blue and other dunes endemics are a beautiful part the Great Basin Desert, and only the protections of the Endangered Species Act will ensure their survival and recovery.”
In this case, the Butterfly resides in the Kearney Buckwheat shrub, which covers about 1,000 acres of the 4,795 acre recreation area. While it may seem that distinction would allow off-roaders to co-exist on the remaining 3,795 acres, a critical habitat designation would likely encompass the entire site. Sometimes, although not always, the Service requires as much as a four-to-one designation to protect a species. That means here, there would be 795 acres left for off-roaders.
That leaves off-roaders to claim they're the ones that are becoming endangered. The Center for Biological Diversity claims that Nevada dunes are not the only ones that need protection. California's Tolowa Dunes State Park contains critical habitat for the snowy plower bird that will be damaged if off-roaders are allowed back on the land, according to the group.
Who Owns Baseball Statistics?
It's well past the bottom of the ninth, and the boys of summer have long ago left the mound, but that hasn't stopped Major League Baseball from trying to wring a few more dollars out of last season. MLB has decided to attack fantasy baseball.
Yep, it gives a whole new meaning to Rotisserie leagues.
According to LA Times writer Greg Johnson, a fantasy baseball game operator, CBC Distribution & Marketing has filed a complaint against MLB, arguing that MLB cannot force it to obtain a license to plug baseball stats into its games. MLB claims it owns the numbers, or perhaps more accurately the statistics of baseball. I don't play fantasy baseball, but I have a lot of friends who do, and most of them are attorneys. You can count on numerous amicus curiae briefs being filed in this case, most likely in favor of CBC, and against MLB.
It's hard to imagine that MLB will be successful in its claim that it owns the statistics of the game. They're numbers, right? On the other hand, there are several cases out there about the alphabet, and some intellectual property rulings side in favor of companies owning part of the alphabet, in certain configurations. But I can't fathom that one through one thousand, or any of the other myriad statistics thrown out at baseball games (pun intended) can be the property of those who play the game. It would be like Webster's claiming that I have to obtain a license to write this blog because they first trademarked the words in their dictionary.
Next thing you know, they'll be charging the fans to quote statistics to one another. Nah. Numbers (and letters and words) are owned by the people, not the major leagues.
New LA Radio Legal Talk Show About To Go On The Air
Be on the lookout for a new legal talk show, "Meet America's Best Lawyers" on a local Los Angeles radio station, KTLK-AM 1150. The show will be hosted by Steve Murphy, who also hosts SkyRadio, which you can hear as you fly across country on numerous airlines.
Disclaimer here: these shows are related to the Law Business Insider, a sponsor of MIPTC, as you can see from the large ad banner.
Steve's Predictions For 2006: Will They Ring True?
A friend of mine, Steve Kaplan, a lawyer at Hicks, Mims & Kaplan, offers these predictions for the coming year, posted here with his permission. If you have some you'd like to add or disagree with Steve, comments are open.
1. The price of crude oil will be volatile, and trend upward.
2. Crude oil will never get below $50 a barrel in 2006.
3. Any disruption will send oil prices above $70 a barrel.
4. The Dollar will slightly appreciate versus the Euro by the end of the year.
5. California, Las Vegas and Florida housing prices will decline by 10% in 2006.
6. Neither GM nor Ford will go bankrupt in 2006 (but GM may go bankrupt in 2007).
7. The Dow Jones industrial average will end the year at just above 11,000.
8. Canadian oil and gas trusts (e.g., symbols PWI and PTF) will return over 15% in 2006. (i.e., dividends plus appreciation will exceed 15%).
9. Altria will return over 15% in 2006.
10. Citigroup, Bank of America and Pfizer will return over 10% in 2006.
11. Emerging market ETF’s (e.g., EEM) will outperform the Dow, NASDAQ and S&P 500 in 2006.
12. Apple will release the “i-phone” cell phone in 2006.
13. Yahoo, Google, AOL or a phone company will buy TIVO.
14. Microsoft will release its new operating system, and new version of Office.
15. Microsoft X-Box will out-sell Sony Playstation in the U.S.
16. Moslems will again riot in Europe.
17. There will be another terrorist attack in Europe.
18. Republicans will maintain control of both houses of Congress after the mid-term 2006 elections.
19. Judge Alito will be confirmed as the next Supreme Court Justice.
20. At least one former U.S. president will die in 2006.
21. Tom DeLay will be found not guilty.
22. At least two former or current members of Congress will be indicted for bribery or taking illegal campaign contributions.
23. In the Enron trials, Ken Lay will be found not guilty, and Jeff Skilling will be convicted.
24. Congress will not pass major immigration or border legislation in 2006.
25. Congress will pass legislation in 2006 extending the 15% tax rate for dividends and capital gains.
26. Eliot Spitzer will be the next Governor of New York.
27. US troop levels in Iraq will decrease from approximately 160,000 today to fewer than 110,000 by the end of 2006.
28. Saddam Hussein will be found guilty and executed.
29. Assad will not last the year as Syria's President.
30. Europe will be unable to persuade Iran to submit to nuclear inspections.
31. The Iran nuclear situation will be referred to the UN security counsel.
32. Israel will complete the wall and cut all relations with the Palestinians.
33. France, Germany, Italy and Spain will fail by a wide margin to fulfill their Kyoto targets. These same countries will continue to rail against the United States for not signing the treaty that they signed and failed to enforce.
34. In some areas of the world it will be hot which will be blamed on global warming.
35. In other areas of the world it will be cold which will be blamed on global warming.
Best Wishes in 2006.
Happy New YearMIPTC wishes you and yours a healthy, happy, prosperous and successful New Year!
2005 Legal News: The First Annual Legal Louie Awards
CNN's TV lawyer Ken Coffee has his list, and MIPTC jumps into the fray with its first annual Legal Louie Awards, a tongue-in-cheek look at this year's legal news. Why a "Legal Louie?" He was my grandfather's barber, who always had an opinion about legal shenanigans, and it just seemed appropriate to name the awards after him. Here's a round-up review of the legal news for 2005 and the resulting awards for the best and worst, in multiple categories:
Worst TV Legal Show: Nancy Grace. It's like Survivor in the courtroom. Come on, who really watches this show? Not lawyers or anyone else with a working head on their shoulders. Too bad we can't vote her off the network.
Best TV Legal Show: Boston Legal. Once again, William Shatner saves the universe with three-word sentences. Best line in the show by Shatner's character, Denny Crane: "I can act. I won a Grammy." OK, occasionally he can rattle off a four-word sentence, but trust me on this one, the show's a riot.
Worst Legal Decision: Kelo v. City of New London, the case that upheld that city's condemnation of Suzy Kelo's single-family home so they could give it to a private shopping center developer and make more in taxes from the mall. The U.S. Supreme Court may have been right on the law, but wrong on the public relations effect of its decision. It's one thing to complain about activist judges, but quite another when everyday citizens clamor to have local governments exercise their eminent domain power over the justices' homes.
Best Legal Decision: Can't think of one, but I'm open to suggestions. As far as the Worst Supreme Court Moment goes, however, the award has to go to Harriet Miers' blue dress. She almost made Blackwell's list, and MIPTC sighed relief when she withdrew her nomination to the Supreme Court without first having a "wardrobe malfunction."
Worst Jail Sentence: Michael Jackson. No kidding. You think he did it? So do the rest of us, but even without the dream team, we're all glad it's over, along with the attendant media frenzy. Get a life. Honorary mention: Judith Miller, who entertained us all with her on-again, off-again refusal to reveal her sources, like a tart who keeps checking her watch.
Best Jail Sentence: Martha Stewart. I have to agree with Ken Coffey on this one, she took it like a ... well, you know what I mean. She did the crime, and she did the time. Now what's for dinner, honey?
Worst Will Contest: Terry Schiavo. If there's one thing we learned from this debacle, it's to get a Living Will. The rest of it was just embarrassing. Chalk another one up to the Glad It's Over category.
Best Will Contest: Anna Nicole Smith. Sure she's a gold-digger. But we love her for it. What story gets more coverage than a rich old man who marries a broke young playmate. Why shouldn't she get all of his money instead of his children, even if she was married to him for only three hours?
Best Insurance Claim: After a jury trial late last year, the insurance companies who started to pay (finally) for the damage to the World Trade Center buildings. It only took them four years of legal wrangling and numerous lawsuits, but they paid part of the damage.
Worst New Legal Trend: Lawyer jokes within the profession (subscription required). It's a tough enough profession as it is. Do we need to make it any harder or any less civil?
Best New Legal Trend: Blawgs and Podcasting. As one well-known blawger called it, 2005 was the year of the podcast. We're finally reaching out there and making the legal profession more accessible. Next year, MIPTC predicts video will surpass podcasts, now that broadband and the technology has come of age.
Saddest Legal-related Event: The loss of Civil-rights pioneer Rosa Parks. She inspired legions of volunteers and changed our country's path for the better.
Most Hopeful Legal Event: Chief Justice Roberts sailed through his confirmation hearings with all the aplomb and grace the office deserves. It's too early to tell how his court will shape things to come, but if how he handled the Senate is any indication, he'll make us proud.
Worst Government Moment: It's a three-way tie. The first winner? He couldn't lead. He couldn't follow. He couldn't even figure out how to get out of the way until it was too late. It took a demotion to make him realize he needed to resign. Former FEMA Director Mike Brown probably won't get a book deal, talk show invitations or the lecture circuit. Thank God. Second and third place go to Senator Tom Delay and Representative Randy "Duke" Cunningham for their fine, upstanding examples of leadership.
Best Government Moment: That's not an award category. That's an oxymoron.
With that, we wrap up this year's awards, with three spins of the barber's chair. To relive those old barbershop times, if you'd like to share your comments, the comment feature below is open. Audio comments can be left at 206-338-3088, and will be posted below, as well. Finally, if the winners contact MIPTC, they can claim a parting gift.