Best Best & Krieger News Feed

Appellate Court Again Sides with BB&K Client in Groundwater Rights Dispute

14 Jul 2016 00:00:00 -0800

On behalf of the City of Santa Maria, Best Best & Krieger LLP Managing Partner Eric Garner and Partner Jeffrey Dunn secured an appellate victory in a long-running groundwater rights dispute. In an opinion certified for publication by the Sixth District Court of Appeal, handed down June 24, 2016, the court held that a lower court was correct to quiet title to a groundwater basin for a group of landowners.

The landowners unsuccessfully asserted that, for the trial court to quiet title, it must have quantified the proportionate prescriptive right to the pumped groundwater as to each property owner. The Appellate Court rejected the argument, finding that the quantification was unnecessary at the time of judgment — as the basin was not in overdraft. However, should there be future periods of overdraft, then the court could consider a quantification of each landowner’s groundwater right.

The opinion follows a 2012 published opinion that upheld the City’s prescriptive right to groundwater and court-imposed groundwater management plan by the City of Santa Maria and other groundwater users. The two decisions provide guidance to California courts as to how to allocate increasingly scarce groundwater supplies.

The case is City of Santa Maria et al v. Richard E. Adam, H041133

BB&K Secures CEQA Appellate Victory in Water Project

13 May 2016 00:00:00 -0800

A team of Best Best & Krieger LLP attorneys, led by Partner Michelle Ouellette and including Sarah Owsowitz and Jennifer Lynch, helped to secure a sweeping appellate victory against six lawsuits challenging a proposed water transfer public-private partnership project. The Fourth District Court of Appeal upheld the project on May 10, 2016, finding that challenges brought under CEQA and other laws lacked merit.

The attorneys represent the Santa Margarita Water District, which is partnering with private landowner, Cadiz, Inc., to pump fresh groundwater from an aquifer in the Mojave Desert. The water would otherwise become unusable after mixing with highly salinated brine water and evaporating. The project will prevent the waste of water and transport it to water customers in Los Angeles, Orange, Riverside, San Bernardino and Ventura counties.

Lawsuits alleged the project was improperly approved under CEQA, and claimed the District was wrongly designated as the project’s lead agency. San Bernardino County’s approval of the project was also unsuccessfully contested. In a detailed analysis, the appellate court rejected the challenges — thus bringing the project closer to fruition at a time when the region is desperate for innovative projects like these to boost water supplies.

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BB&K Wins Overtime Ruling in Appellate Court for Client

27 Jan 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Howard Golds and Associate Elizabeth Han secured a ruling from a California Appellate Court that a business client’s formula for calculating an employee’s overtime rate on flat sum bonuses paid in the same pay period in which they are earned is lawful.

Dart Container Corporation of California was sued in Riverside Superior Court by a former employee, who sought class action status, claiming that Dart did not properly compute bonus overtime under California law. Dart’s written policy is to pay a $15 attendance bonus to employees who attend their regularly-scheduled weekend shift. Dart included the attendance bonus when calculating the regular rate for overtime purposes, but the former employee claimed that Dart used an incorrect formula in doing so.

When the Superior Court dismissed the case in favor of Dart on summary judgment, the former employee appealed. The Fourth District Court of Appeal published an opinion upholding the lower court’s ruling. The Court of Appeal agreed with the BB&K team’s argument that Dart’s overtime flat sum bonus formula complies with federal law, which is lawful because there is no California law on point.

To read the full opinion in Alvarado v. Dart Container Corp. of California, click here.

BB&K Successfully Defends CEQA Challenge to City of Riverside Power Project

13 Nov 2015 00:00:00 -0800

Best Best & Krieger LLP attorneys Michelle Ouellette, Charity Schiller and Alisha Winterswyk successfully defended the City of Riverside against claims its environmental review of a power transmission project were inadequate. Power to the City of Riverside, the largest city in the Inland Empire with a population of 313,670, is currently delivered by a single transmission line.

To address potential power shortages, the City designed the Riverside Transmission and Reliability Project. The RTRP would provide a second connection to the transmission grid and protect Riverside against the blackouts that occur whenever service through the existing line is interrupted. The Project includes two new substations, several 69 kV subtransmission lines to deliver power to areas throughout Riverside, and a 230 kV transmission line — a portion of which would be within the city limits of the City of Jurupa Valley. The City of Jurupa Valley filed a California Environmental Quality Act lawsuit challenging the Project approvals and Riverside’s Environmental Impact Report under CEQA.

All of Jurupa Valley's claims were rejected via a judgment entered on May 1, 2014 in the Los Angeles Superior Court. On Nov. 6, 2015, the Second District Court of Appeal affirmed the judgment in full and ruled that Riverside’s EIR fully complied with CEQA.

Appellate Court Dismisses Challenge to Cities’ Assessments

02 Oct 2015 00:00:00 -0800

On behalf of the cities of Ontario and Rancho Cucamonga, a team of Best Best & Krieger LLP attorneys successfully defeated an action challenging assessments levied by the Greater Ontario Tourism Marketing District. Attorneys Richard Egger and Thomas Rice represented the cities. The San Bernardino County Superior Court dismissed the case for lack of standing. On Sept. 30, the California Court of Appeal dismissed the follow up appeal by opponents of the Tourism Marketing District.

Formed pursuant to the Property and Business Improvement District Law, the Greater Ontario Tourism and Marketing District includes all lodging businesses in the two cities. Its purpose is to jointly promote the businesses as “tourist, meeting and event destinations.” The District uses assessments imposed on hotels located in the two cities to fund its promotional activities. The challenger in the case claimed the assessments violated the California Constitution. The trial court ruled, however, that the organization did not have standing to challenge the validity of the assessments.

The appeal was dismissed because it was not filed in a timely manner. In its opinion, however, the appellate court noted that it would have upheld the lower court’s decision to dismiss the case on the merits.

The full published opinion can be read by clicking here.

BB&K Files Successful Amicus Brief in Eminent Domain Case

26 May 2015 00:00:00 -0800

Best Best & Krieger LLP attorney Kendall H. MacVey filed a successful brief as amicus curiae counsel to a California appellate court, which found that the Mello-Roos Act can be used to finance acquisitions by eminent domain. (Golden State Water Company v. Casitas Municipal Water District, B255408)

The brief was filed on behalf of the Association of California Water Agencies, the League of California Cities, the California State Association of Counties and the California Special Districts Association, which collectively represent more than 2,000 public entities. The entities supported Casitas’ position that it had the right to acquire Golden State Water Company to provide water service in the City of Ojai.

In a Mello-Roos election held in Ojai, 87 percent of the voters approved using Mello-Roos property taxes to finance Casitas’ acquisition by eminent domain of Golden State’s Ojai water system. Golden State, declaring its system was “not for sale,” brought a legal challenge to set aside the voter approved Mello-Roos measure.

The Second District Court of Appeal affirmed that the Mello-Roos Act should be “liberally construed” to allow for the financing of the acquisition of facilities.

Casitas is seeking control of the for-profit regulated utility, which has a monopoly in providing water service in Ojai, out of concern for high water bills. Casitas believes the Ojai community would benefit from having its water utility run by a locally controlled entity rather than an out-of-area-corporation seeking to maximize profits for its owners. The Second District Court of Appeal affirmed that the Mello-Roos Act should be “liberally construed” to allow for the financing of the acquisition of facilities. The California Supreme Court declined Golden State’s petition to review.

On Behalf of Coachella, BB&K Attorneys Win Appeal

14 Jan 2015 00:00:00 -0800

Best Best & Krieger LLP attorneys Kira Klatchko and Irene Zurko obtained a full reversal on appeal on behalf of the City of Coachella. The City sued a subdivider and its surety, after the subdivider refused to complete public improvements that it promised to construct on a subdivision site and the surety refused to make good on the bond securing completion of the work.

Although the City granted the subdivider more time to complete the improvements, the surety asserted that, because the City did not properly extend the subdivider's deadline, the City’s action was untimely and the surety had no obligation on the bond. The trial court ruled in favor of the surety, dismissing the City’s case at the demurrer stage. The Court of Appeal reversed in full, however, concluding in an unpublished opinion that the City’s action was not on its face barred by the statute of limitations. The Court concluded that the City was not required, at the pleadings stage, to allege (or provide proof of) how the City Council granted the subdivider the extension.

BB&K Attorneys Successfully Defend City Client from Brown Act and Other Claims

12 Dec 2014 00:00:00 -0800

In Ontario Mountain Village Association et al v. City of Ontario, Best Best & Krieger LLP attorneys Michelle Ouellette, Richard T. Egger and Sarah Owsowitz successfully defended the legality of an ordinance by the City of Ontario that extended by one-year the expiration dates for all development plans, conditional use permits and variance approvals. The extension was challenged in a lawsuit on the alleged grounds that the City violated the Ralph M. Brown Act and the California Environmental Quality Act (CEQA). The plaintiffs also alleged violation of their due process rights.

The lawsuit was filed after the City approved extension of the expiration dates in December 2011 — as it had done several times previously to support development and economic recovery in the City. The plaintiffs claimed the City violated the Brown Act, which guarantees the public’s right to attend and participate in meetings of local legislative bodies, and their due process rights by failing to disclose a legal memorandum. They also alleged the City violated CEQA by not substantiating that the ordinance extending the expiration dates was exempt from environmental review, among other claims.

As the trial court had done, the 2nd District Court of Appeal, in an opinion issued Dec. 11, sided with BB&K attorneys and rejected all the plaintiffs’ claims.

Red Light Camera Conviction Upheld in California Supreme Court

10 Jun 2014 00:00:00 -0800

Best Best & Krieger LLP attorney Kira L. Klatchko successfully briefed and argued to the California Supreme Court that evidence generated by an automated traffic enforcement system (ATES, otherwise known as “red light camera”) should be authenticated like other photographic evidence, and that the machine-generated photographs were not out-of-court statements constituting hearsay.

In the closely watched case of People v. Goldsmith, the City of Inglewood used several photographs generated by an ATES to prosecute the defendant for failing to stop at a red light. The defendant objected to the evidence and argued it was wrongly admitted. The trial court commissioner and, ultimately, the unanimous state Supreme Court, found the evidence was properly admitted.