Local focus for State Supreme Court

By J. Clark Kelso

ANALYSIS

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The California Supreme Court’s 2006-07 term generated a surprising number of cases dealing with essentially local issues. There were no grand decisions involving broad constitutional or social issues, no major political cases and very little to generate big headlines. Instead, the cases were about what happens in cities and neighborhoods, what happens on premises and what happens at parks and pools. In other words, the cases were about the lives of ordinary people doing ordinary things.

Pre-emption of local ordinances

In our federal system of government, “Who gets to decide?” is a key political, policy and legal question. Does the federal government get to decide? Does state government decide? Does local government decide? Or, do some combination of governments have authority to legislate and regulate? Our federal structure creates frequent opportunities for political wrangling between levels of government over the proper scope of governmental responsibilities, and it creates some nice legal issues for lawyers to litigate and courts to resolve.

The basic rule established by Article XI, Section 7 of the California Constitution is that local law which conflicts with state law is pre-empted. California courts recognize three types of conflicts resulting in pre-emption: local ordinances that duplicate state law, contradict state law or enter an area already fully occupied by state law, either expressly or by implication.

In O’Connell v. City of Stockton (2007) 63 Cal.Rptr.3d 67, the court struck down a municipal ordinance that authorized the seizure and forfeiture of any motor vehicle used to solicit acts of prostitution or used in drug transactions. The court held that the drug portion of the ordinance was pre-empted by California’s Uniform Controlled Substances Act (“UCSA”). According to the court, the scope and detail of the UCSA evidenced the Legislature’s intent to fully occupy the field of law defining drug crimes and specifying their penalties (including forfeiture of vehicles). Thus, the local ordinance was pre-empted even though the UCSA limited forfeitures to cases involving serious drug crimes where the vehicle was used to facilitate the crime (while the local ordinance applied broadly even to attempts by a buyer to acquire small amounts of any controlled substance), and even though the UCSA required proof beyond a reasonable doubt (while the local ordinance required merely proof by a preponderance of evidence).

The prostitution portion of the ordinance was preempted for a different reason, namely express pre-emption. Section 21 of the Vehicle Code expressly precludes local regulation of those matters covered by the Vehicle Code absent express legislative authority. Section 22659.5 of the Vehicle Code authorizes counties as part of a five-year pilot program to treat vehicles used in soliciting prostitution as a public nuisance, but it does not expressly authorize forfeitures of those vehicles. Finding no other provision in the Vehicle Code that granted express legislative authorization for vehicle forfeiture, the court held that the local ordinance was expressly pre-empted by the Vehicle Code.

Pre-emption was also the issue in Action Apartment Association Inc. v. City of Santa Monica (2007) 63 Cal.Rptr.3d 398, where the court struck down most of a local “tenant harassment” ordinance, a partial victory for landlords. A local ordinance established both civil and criminal penalties against a landlord who maliciously serves a notice of eviction or brings an action to recover possession of a rental unit without a reasonable factual or legal basis. The court of appeal held that both parts of the ordinance — the part dealing with notices of eviction and the part dealing with bringing an action — were pre-empted by the litigation privilege.

Section 47 of the Civil Code, which codifies the litigation privilege, provides that a “publication or broadcast” made as part of a “judicial proceeding” is absolutely privileged, even if the publication or broadcast is malicious. The privilege is not limited to statements made during judicial proceedings. Instead, the privilege may encompass statements made and steps taken prior to or after judicial proceedings, so long as those statements and steps are in furtherance of, and therefore logically related to, the objectives of litigation.

The Supreme Court affirmed in part and reversed in part. It agreed that the litigation privilege pre-empted that portion of the ordinance dealing with filing actions to recover possession of a rental unit, and it did not matter whether the filing was allegedly malicious.

But the court held that the portion of the ordinance dealing with eviction notices — a prelitigation communication — was subject to a different legal analysis. A prelitigation communication is privileged only if it relates to litigation that is contemplated in good faith and under serious consideration. The court held that this test — whether litigation is contemplated in good faith and under serious consideration — involved resolution of a fact question, and this meant that the eviction notice portion of the ordinance was not pre-empted as a matter of law.

These two decisions serve as a good reminder that local governments are often not free to exercise their police powers to the fullest extent desired by local politicians even when the overall goals of the local regulation may be similar to the overall goals of state regulation. Actions taken in Sacramento can easily end up constraining local governments’ powers.

Zoning ordinances to advance economic interests

Absent pre-emptive state or federal statutes, local governments are of course free to use their powers to advance legitimate public purposes, even when the advancement of public purposes creates clear winners and losers in the private sector. In Hernandez v. City of Hanford (2007) 41 Cal.4th 279, the court upheld the use of a city’s zoning powers to regulate economic competition within its boundaries, advancing the economic interests of certain private businesses at the expense of others in order to promote overall municipal economic interests.

The downtown district in the City of Hanford had a large number of well-regarded retail furniture stores. The city enacted a zoning ordinance that prohibited the sale of furniture in another commercial district within the city, except for a narrow exception created for very large department stores (those with 50,000 or more square feet of floor space) which were permitted to sell furniture within a defined area occupying no more than 2,500 square feet of floor space. Suit was brought by the owners of several stand-alone home furnishings and mattress stores which were not located within the downtown district and did not qualify for the narrow exception for department stores.

The court of appeal struck down the ordinance. Although it found that the general prohibition of the sale of furniture outside the downtown district was reasonably related to legitimate governmental interests — i.e., advancing the economic interests of the downtown district — the exception for large department stores drew an unwarranted distinction between large department stores and other retail stores and was therefore a violation of equal protection.

The Supreme Court reversed the court of appeal. Although the zoning ordinance clearly benefited certain private business (i.e., furniture sellers in the downtown district and certain large department stores outside that district), the court nevertheless upheld the ordinance since there was no evidence that the primary purpose of the ordinance was to advantage a particular favored business — which would have been an illegitimate private anticompetitive goal — as opposed to advancing the legitimate public purposes of (1) building the downtown business district; and (2) attracting large department stores to other parts of the city (which the city viewed as essential to the overall economic health of the city). The power to zone — and to make winners and losers in the process — is reaffirmed.

Developments in tort law

The court reinforced some traditional tort law principles this term, reminding us again that the George court is in the mainstream of tort law nationally. It is certainly not engaged in a pro-plaintiff project to expand tort liability, and neither is it engaged in a pro-defendant/pro-business reform effort. Instead, it is content to reinforce traditional tort principles that are well recognized around the country. Sometimes the plaintiff wins, and sometimes the defendant wins.

The court dealt with the enforceability of a release against claims of future gross negligence in City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747. The case arose out of the tragic drowning of a 14-year-old developmentally disabled child who was participating in a city recreational program for disabled children. Upon entry to the program, the child’s mother signed a release that purported to shield the city from all suits for injuries arising out of participation in the program whether caused by negligence or otherwise. The release expressly stated that it was intended to be as broad and inclusive as permitted by California law.

Applying the California Supreme Court’s leading case on releases of liability, Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, the court of appeal held that the release was valid with respect to ordinary negligence since the release encompassed only a voluntary sports and recreational program that did not implicate broader public interests that, under Tunkl, might invalidate the clause. Those broader public interests have typically involved matters that transcend purely private interests such as releases of liability in contracts to provide health care services, banking or financial services, child care services and housing. The court of appeal invalidated the release insofar as it purported to apply to gross negligence, holding that such a release was generally contrary to public policy as a matter of law.

The Supreme Court granted review limited to the question of whether a release of liability relating to recreational activities generally is effective as to gross negligence. The only prior California authority for the proposition that releases of liability for gross negligence are generally unenforceable was a statement in Witkin which did not cite any supporting California cases. In the absence of California cases, the court examined the law around the country and joined the vast majority of states holding that such agreements are generally void because public policy precludes enforcing a release that would shelter aggravated misconduct. The holding is unremarkable from a tort perspective, but the court’s approach — examining the law of torts from a national perspective — evidences the court’s determination to keep California’s law of torts in the mainstream.

The court’s other major tort decision in Castaneda v. Olsher (2007) 63 Cal.Rptr.3d 99, involved the recurring problem of premises liability and the duty to protect against harm caused by third persons. The plaintiff, who lived in a mobile home park, was a bystander to a gang confrontation involving a resident of the mobile home across the street, and when gunfire erupted as part of the confrontation, the plaintiff was shot and injured. He sued the owner of the mobile home park, alleging that the owner had breached a duty not to rent to known gang members or to evict them when they harass other tenants. The trial court granted defendant’s motion for nonsuit, but the court of appeal reversed.

The Supreme Court acknowledged that landlords have a general duty to take reasonable measures to secure areas under the landlord’s control against foreseeable criminal acts by third parties. The court described its duty analysis as a sliding scale where it balances the risks of harm and foreseeability of injury against the burden of taking steps to protect against that injury.

Consistent with that balancing approach, the court crafted three different duty standards which reflected the different burdens placed on the landlord by the asserted duty. In particular, the court held that (1) landlords have no duty not to rent to members of street gangs except where gang violence is extraordinarily foreseeable (because the burden of screening tenants for violent tendencies would be too great), (2) landlords have no duty to evict gang member tenants except where gang violence is highly foreseeable (the burden here is less since the landlord presumably has a better opportunity to assess the risks posed by existing tenants), and (3) landlords have a duty to provide security guards or brighter lighting only when there have been prior similar violent incidents or other sufficiently serious indications of a reasonably foreseeable risk of violent criminal conduct.

The court held that the plaintiff had not satisfied its burden of demonstrating extraordinary foreseeability or even that gang violence was highly foreseeable. As for the security guards and brighter lighting, the court held that even if such a duty existed, there was no evidence at all that the breach of such a duty was a substantial factor in the gang confrontation or shooting.

The decision is broadly consistent with traditional tort principles that provide only limited duties for one person to protect another against the criminally violent behavior of a third person. The court is sticking to traditional approaches in its torts jurisprudence.

• J. Clark Kelso is Professor of Law and Director of the Capital Center for Government Law and Policy at the University of the Pacific McGeorge School of Law.