HomeMy WebLinkAbout2001-08-07; City Council; 16311; Amendment to 2001 Legislative PlatformCITY OF CARLSBAD - AGENDA BILL
AB# 16 I 3 1 \ TITLE:. DEPT. HD.
MTG. s-- 7 -0 \ AMENDMENT TO 2001 LEGISLATIVE PLATFORM
DEPT. CA CITY MGR.
I RECOMMENDED ACTION:
Amend the Legislative Platform for 2001 to support legislation overruling Cornette v.
Dept. of Transportation, making design immunity a question of law.
ITEM EXPLANATION:
On June 6, 2001, the City Council adopted a Legislative Platform stating its position on
issues of importance to the community. One of the categories on which the City stated
its Legislative Platform is Tort Reform. Since the adoption of the platform for that
category, on July 12, 2001, the California Supreme Court rendered its decision in
Cornette v. Dept. of Transportation, Daily Journal DJDAR 7185. Statutory law provides
an immunity defense to public entities for some liabilities in Government Code sections
830 et seq. In this case, the court held that where triable issues of fact are presented,
plaintiffs have a right to a jury trial involving the loss of design immunity. This decision
establishes a rule which allows juries to second guess the City Council or City Engineer
who originally approved the design.
In light of this court decision, legislation is now needed in order to prevent a jury from
second guessing the decisions of a public entity by permitting re-examination in tort
litigation of particular discretionary decisions where reasonable persons may differ as to
how the discretion may be exercised. Leaving the factual determination to a jury
would create too great a danger of in-politic interference with the freedom of decision
making by political officials in whom the function of making such decisions has been
vested.
Therefore, staff proposes that section 3(c) be added to the Legislative Platform as
shown on attached Exhibit No. 2.
FISCAL IMPACT:
None.
EXHIBITS:
1. Cornette v. Dept. of Transportation case.
2. Proposed amendment to 2001 City of Carlsbad Legislative Platform.
Get a Document - by Citation - 2001 Cal. LEXIS 4235
Service: LEXSEEQ Citation: 2001 Cal. LEXIS 4235
2001 Cal. LEXIS 4235, *
STACY CORNElTE et al., Plaintiffs and Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant
and Respondent.
SO89010
SUPREME COURT OF CALIFORNIA
2001 Cal. LEXIS 4235
July 12, 2001, Filed
NOTICE: [*l] THE LEXIS PAGINAllON OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING
RELEASE OF THE FINAL PUBLISHED VERSION.
PRIOR HISTORY: Superior Court of California, Los Angeles County. Court of Appeal of California,
Second Appellate District, Division Three. 8125741. Super. Ct. No. BC081191. Frank Gafkowski, Jr. *
* Retired judge of the former Municipal Court for the Southeast Judicial District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
DISPOSITION: Affirmed the judgment of the Court of Appeal.
CORE TERMS: design immunity, public entity, dangerous condition, barrier, immunity, notice,
legislative body, public property, conformity, median, amici curiae, warning, special proceeding,
italics, reasonable time, reasonableness, entity, jury trial, sufficient time, substantial evidence
supporting, constructive notice, provide adequate, actual operation, trier of fact, discretionary,
hazard, curiae, amici, recommendation, freeway
COUNSEL: Attorneys for Appellant:
Grassini & Wrinkle and Roland Wrinkle, for Plaintiffs and Appellants.
Attorneys for Respondent:
William M. McMillan, Breland C. Gowan, David R. Simmes, Larry R. Danielson, Jill Sicilian0 and
Kenneth G. Nellis, for Defendant and Respondent.
Pollak, Vida & Fisher, Daniel P. Barer and Girard Fisher, for 105 California Cities and California State
Association of Counties, as Amici Curiae on behalf of Defendant and Respondent.
JUDGES: BROWN, 3. WE CONCUR: GEORGE, C.J., KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J.
OPINIONBY: BROWN
OPINION:
A public entity is liable for injury proximately caused by a dangerous condition [*2] of its property
if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and
the public entity had actual or constructive notice of the condition a sufficient time before the injury
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to have taken preventive measures. (Gov. Code, $ 835, subd. (b); nl Baldwin v. State of California
(1972) 6 Cal. 3d 424, 427, 99 Cal. Rptr. 145, 491 P.2d 1121 (Baldwin) .)
----------------- -Footnotes---- - - _ ____-------
nl Hereafter, unless otherwise indicated, all section references are to the Government Code.
---------------- -End Footnotes- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
However, a public entity may avoid such liability by raising the affirmative defense of design
immunity. ( 5 830.6.) A public entity claiming design immunity must establish three elements: (1) a
causal relationship between the plan or design and the accident; (2) discretionary approval of the
plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of
the plan or design. ( Grenier v. City of Irwindale (19971 57 Cal. ADD. 4th 931, 939 (Grenier); Hisgins
v. State of California (19971 54 Cal. ADD 4th 177, 185 [*3] (Higgins); Hefnerv. County of
Sacramento (1988) 197 Cal. ADD. 3d 1067, 243 Cal. RDtr. 291,
1013-1014 (Hefner) .)
Design immunity does not necessarily continue in perpetuity. (Baldwin, supra, 6 Cal. 3d at p, 434.)
To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan
or design has become dangerous because of a change in physical conditions; (2) the public entity had
actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a
reasonable time to obtain the funds and carry out the necessary remedial work to bring the property
back into conformity with a reasonable design or plan, or the public entity, unable to remedy the
condition due to practical impossibility or lack of funds, had not reasonably attempted to provide
adequate warnings. ( 5 830.6; Baldwin, 6 Cal. 3d at p. 438.)
The third element of design immunity, the existence of substantial evidence supporting the
reasonableness of the adoption of the plan or design, must be tried by the court, not the jury.
Section 830.6 makes it quite clear that “the trial or appellate court” is to determine whether [*4]
“there is any substantial evidence upon the basis of which (a) a reasonable public employee could
have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or
other body or employee could have approved the plan or design or the standards therefor.”
The question presented by this case is whether the Legislature intended that the three issues
involved in determining whether a public entity has lost its design immunity should also be tried by
the court. Our examination of the text of section 830.6, the legislative history of that section, and our
prior decisions leads us to the conclusion that, where triable issues of material fact are presented, as
they were here, a plaintiff has a right to a jury trial as to the issues involved in loss of design
immunity.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from an automobile accident suffered by plaintiffs Stacy and Rodney Cornette while
they were driving northbound on the Antelope Valley Freeway (State Route 14) in Los Angeles
County . Another northbound vehicle sideswiped plaintiffs’ car and forced it across the open median
of the freeway and into the southbound lanes, where it came to rest [*5] before being hit by a
southbound vehicle. The accident occurred just beyond the end of a median barrier that defendant
Department of Transportation (Caltrans) had constructed from the south. Plaintiffs, both of whom
suffered substantial injuries, filed suit against a number of parties. We are concerned only with their
claim against Caltrans, which was based on the allegedly dangerous condition of the highway created
by the absence of a median barrier at the location of the accident.
When the case was called for trial, Caltrans, which had raised the affirmative defense of design
immunity, asked the court to bifurcate the proceeding and try that issue first. (Code Civ. Proc., 5
597.) The trial court granted this request and went on to rule that none of the issues relating to the
existence of design immunity or its loss would be submitted to the jury; rather, these issues would
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be tried solely by the court as the trier of fact. This was done over the objection of plaintiffs who
contended that, with the exception of the third element of design immunity (substantial evidence of
the reasonableness of the adoption of the design), all of the issues relating to design immunity or its
loss [*63 should be tried to the jury.
There was no real dispute about whether the absence of a median barrier at the location of the
accident had made the highway dangerous by the time the accident occurred on May 23, 1992.
Plaintiffs stipulated that designing the freeway without a median barrier was reasonable when the
freeway was built in 1964. However, the physical conditions had changed in the interim. Both the
traffic volume and the number of cross-median accidents had significantly increased. As a result, on
August 21, 1990, Caltrans decided to install a median barrier along a five-mile stretch of the freeway
that included the location where this accident would later occur, and on July 27, 1991, the Caltrans
district office recommended that a high priority be given to the project because five more
cross-median accidents, three with injuries and two with fatalities, had occurred in 1990.
Unfortunately, the project was not completed until January 18, 1996, long after this accident
occurred.
What was in dispute was (1) when Caltrans had notice that changed physical conditions had made
the freeway at that location dangerous without a median barrier; and (2) whether the installation of
the [*7] barrier was unreasonably delayed. The evidence presented by plaintiffs tended to show
that Caltrans had notice by May 30, 1989, that the cross-median accident rate at that location
greatly exceeded Caltrans guidelines for the installation of median barriers, and that, given the high
priority the agency should therefore have attached to the project, Caltrans reasonably should have
installed at least a temporary median barrier before the accident occurred almost three years later.
The evidence presented by Caltrans, on the other hand, tended to show that Caltrans did not have
notice until August 1990, and that a median barrier project usually takes Caltrans four and a half to
five years to complete, so that Caltrans could not have been reasonably expected to have installed
the barrier before this accident occurred in 1992.
Resolving the factual disputes in favor of Caltrans, the trial court found that Caltrans had established
design immunity and had not lost it. Judgment was entered for Caltrans, plaintiffs appealed, and the
Court of Appeal reversed and remanded for a new trial. The trial court, the Court of Appeal held, had
improperly denied plaintiffs their right to a jury trial [*8] of the disputed issues pertaining to the
question whether Caltrans had lost its design immunity. We affirm the judgment of the Court of
Appeal.
DISCUSSION
I. A Public Entity May Rely Upon Design Immunity as a Defense to a Claim of Liability for a
Dangerous Condition
Section 835, subdivision (b) provides that a public entity is liable for injury proximately caused by a
dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk
of the kind of injury sustained, and the public entity had actual or constructive notice of the condition
a sufficient time before the injury to have taken preventive measures. n2 (Baldwin, supra, 6 Cal. 3d
at p. 427.) The state’s failure to erect median barriers to prevent cross-median accidents may result
in such liability. ( Ducev v. Aruo Sales Co. (1979) 25 Cal.‘3d 707, 720. 159 Cal. Rotr. 835, 662 P.2d
755.)
----------m------ -Footnotes- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
n2 Section 835 provides: “Except as provided by statute, a public entity is liable for injury caused by
a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous
condition at the time of the injury, that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred, and either: [P] (a) A negligent or wrongful act or omission of an employee of the
public entity within the scope of his employment created the dangerous condition; or [P] (b) The
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public entity had actual or constructive notice of the dangerous condition under Section 835.2 a
sufficient time prior to the injury to have taken measures to protect against the dangerous
condition.”
------m-mm-e--- _ -End Footnotes- - - - - _ _ _ _ _ _ _ _ _ _ _ _ [*g]
However, under section 830.6, the public entity may escape such liability by raising the affirmative
defense of “design immunity.” Section 830.6 provides in relevant part: “Neither a public entity nor a
public employee is liable under this chapter for an injury caused by the plan or design of a
construction of, or an improvement to, public property where such plan or design has been approved
in advance of the construction or improvement by the legislative body of the public entity or by some
other body or employee exercising discretionary authority to give such approval or where such plan
or design is prepared in conformity with standards previously so approved, if the trial or appellate
court determines that there is any substantial evidence upon the basis of which (a) a reasonable
public employee could have adopted the plan or design or the standards therefor or (b) a reasonable
legislative body or other body or employee could have approved the plan or design or the standards
therefor.”
In other words, a public entity claiming design immunity must establish three elements: (1) a causal
relationship between the plan or design and the accident; (2) discretionary approval of the [*lo]
plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of
the plan or design. (Grenier, supra, 57 Cal. App. 4th at p. 939; Higgins, supra, 54 Cal. App. 4th at p.
185; Hefner, supra, 197 Cal. App. 3d at pp. 1013-1014.)
The rationale for design immunity is to prevent a jury from second-guessing the decision of a public
entity by reviewing the identical questions of risk that had previously been considered by the
government officers who adopted or approved the plan or design. (Baldwin, supra, 6 Cal. 3d at pp.
432, fn. 7, 434.)
” ’ “To permit reexamination in tort litigation of particular discretionary decisions where reasonable
men may differ as to how the discretion should be exercised would create too great a danger of
impolitic interference with the freedom of decision-making by those public officials in whom the
function of making such decisions has been vested.” ’ [Citation.]” ( Cameron v. State of California
(1972) 7 Cal. 3d 318, 326, 102 Cal. Rotr. 305, 497 P.2d 777 (Cameron) .)
II. A Public Entity’s Design Immunity Defense May be Lost by Proof of Changed Conditions
As originally [*ll] enacted, section 830.6 made no provision for loss of design immunity, and
when this court first addressed the question, we held that design immunity, once acquired, persisted
regardless of any subsequent change of conditions. “In Cabell [v. State of California (1967) 67 Cal.
2d 150, 430 P.2d 34, 60 Cal. Rotr. 4761, we held that section 830.6 immunized the state from
liability arising from the breaking of a glass door which was installed and maintained according to
state specifications even though the glass had shattered on three previous occasions causing
personal injuries. In Becker [v. Johnston (1967) 67 Cal. 2d 163, 60 Cal. Rutr. 485, 430 P.2d 43,] we
reached the same conclusion concerning a highway intersection designed in 1927, when ’ “they also
had horses and buggies . . .‘I ’ J67 Cal. 2d at o. 173) using local roads, despite evidence of eight
accidents in the four years preceding plaintiff’s injury.” (l3aldwin, supra, 6 Cal. 3d at p. 431.) Indeed,
we quoted with approval from a practice guide stating that a ” ‘plan or design . . . judged . . .
reasonable when adopted is not actionable even though its defective nature is considered wholly
unreasonable [*12] under present circumstances and conditions.’ [Citation.]” (Cabell, 67 Cal. 2d at
p. 153, quoted in, Baldwin, 6 Cal. 3d at p. 432, fn. 6.)
In 1969, the California Law Revision Commission recommended that the Legislature effectively
overrule Cabell and Becker by amending section 830.6 to provide that design immunity “should be
considered to have terminated when the court finds that (1) the plan or design, as effectuated, has
actually resulted in a ‘dangerous condition’ at the time of an injury, (2) prior injuries have occurred
that demonstrate that fact, and (3) the public entity has had knowledge of these prior injuries and a
reasonable time to protect against the dangerous condition.” (Recommendation Relating to Sovereign
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Immunity (Sept. 1969) 9 Cal. Law Revision Corn. Rep. (1969) p. 819 (Recommendation).)
While the Legislature did not adopt this recommendation, we overruled Cabell and Becker in Baldwin.
(Baldwin, supra, 6 Cal. 3d at p, 427.) The question presented in Baldwin was “whether a public entity
retains its statutory immunity from liability for injury caused by the plan or design of a construction
of, or an improvement to, public property [*13] where the plan or design, although approved in
advance as being safe, nevertheless in its actual operation becomes dangerous under changed
physical conditions.” /6 Cal. 3d at P. 426.2 The dangerous condition in that case was an intersection
on a state highway that did not have a left-turn lane, a design which was reasonable at the time it
was constructed because the traffic volume in the area was light. However, in the 25 years that
elapsed before Mr. Baldwin’s accident, the traffic volume had greatly increased, resulting in a large
number of serious rear-end collisions of the sort suffered by Mr. Baldwin, and this dangerous
condition was repeatedly brought to the attention of the state. 16 Cal. 3d at DD. 427-431.) Under
these circumstances, we held, the state could no longer rely on the defense of design immunity.
“Once the entity has notice that the plan or design, under changed physical conditions, has produced
a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard.” fi
Cal. 3d at D. 434, fn. omitted.) Such notice, we explained, “may be actual or constructive and must
be a sufficient time prior to the injury to have permitted the public entity [*14] to take measures
to protect against the danger. ( 5 835, subd. (b).)” [Baldwin, 6 Cal. 3d at p. 434, fn. 8.) In enacting
section 830.6, “the Legislature did not intend that public entities should be permitted to shut their
eyes to the operation of a plan or design once it has been transferred from blueprint to blacktop.”
[Baldwin, 6 Cal. 3d at p. 427.) Overruling Cabell and Becker to the extent they were inconsistent, we
summarized our holding as follows: “Where a plan or design of a construction of, or improvement to,
public property, although shown to have been reasonably approved in advance or prepared in
conformity with standards previously so approved, as being safe, nevertheless in its actual operation
under changed physical conditions produces a dangerous condition of public property and causes
injury, the public entity does not retain the statutory immunity from liability conferred on it by
section 830.6.” IBaldwin, 6 Cal. 3d at p. 438, fn. omitted.)
In 1979, the Legislature responded to Baldwin by amending section 830.6 to specify the
circumstances under which a public entity retains its design immunity despite having received notice
that [*15] the plan or design has become dangerous because of a change of physical conditions.
Assembly Bill No. 893 (1979-1980 Reg. Sess.) (Assembly Bill No. 893) amended section 830.6 by
adding the following three sentences: “Notwithstanding notice that constructed or improved public
property may no longer be in conformity with a plan or design or a standard which reasonably could
be approved by the legislative body or other body or employee, the immunity provided by this
section shall continue for a reasonable period of time sufficient to permit the public entity to obtain
funds for and carry out remedial work necessary to allow such public property to be in conformity
with a plan or design approved by the legislative body of the public entity or other body or employee,
or with a plan or design in conformity with a standard previously approved by such legislative body or
other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section
shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of
the existence of the [*16] condition not conforming to the approved plan or design or to the
approved standard. However, where a person fails to heed such warning or occupies public property
despite such warning, such failure or occupation shall not in itself constitute an assumption of the
risk of the danger indicated by the warning.” (Stats. 1979, ch. 481, 5 1, pp. 1638-1639.)
Although referenced elsewhere in several legislative analyses, the purpose of the legislation was best
explained by its author in a letter to the Governor urging him to approve it. “Although the staff of the
Joint Committee agreed with Baldwin, it felt there should be some recognition of the practical
limitations which have been imposed upon governments by Article XIII A of the California
Constitution (Proposition 13) and ever increasing liability insurance costs. This recognition is
achieved by AB 893. The bill is consistent with and carries out the concepts contained in the Law
Revision Commission Comment to Govt. Code Section 830.6. The amendment allows entities a
reasonable time to finance and take remedial action or to provide adequate warning of the dangerous
condition. The public is sufficiently protected by those conditions [*17] which must be satisfied by
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the entity in order to be immunized.” (Assemblyman John T. Knox, letter to Governor Edmund G.
Brown, Jr., re Assem. Bill No. 893, Aug. 30, 1979, pp. l-2.)
Therefore, under Baldwin and section 830.6 as amended, to demonstrate loss of design immunity a
plaintiff must establish three elements: (1) the plan or design has become dangerous because of a
change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous
condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry
out the necessary remedial work to bring the property back into conformity with a reasonable design
or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of
funds, had not reasonably attempted to provide adequate warnings.
III. While Section 830.6 Reserves the Third Element of Design
Immunity for the Court’s Determination, It Does Not So
Reserve the Three Elements of Loss of Design Immunity
Section 830.6 clearly makes the resolution of the third element of design immunity, the existence of
substantial evidence supporting the [*lS] reasonableness of the adoption of the plan or design, a
matter for the court, not the jury. “The trial or appellate court” is to determine whether “there is any
substantial evidence upon the basis of which (a) a reasonable public employee could have adopted
the plan or design or the standards therefor or (b) a reasonable legislative body or other body or
employee could have approved the plan or design or the standards therefor.” ( 5 830.6.)
The California Law Revision Commission recommended that the determination of the elements of the
loss of design immunity also be reserved to the court. “[Design] immunity should be considered to
have terminated when the court finds that (1) the plan or design, as effectuated, has actually
resulted in a ‘dangerous condition’ at the time of an injury, (2) prior injuries have occurred that
demonstrate that fact, and (3) the public entity has had knowledge of these prior injuries and a
reasonable time to protect against the dangerous condition.” (Recommendation, supra, 9 Cal. Law
Revision Corn. Rep. at p. 819, italics added.)
As Assemblyman Knox’s letter indicates, the Legislature had the recommendations of the California
Law Revision [*19] Commission before it when it enacted Assembly Bill No. 893. (Assemblyman
John T. Knox, letter to Governor Edmund G. Brown, Jr., re Assem. Bill No. 893, supra, at p. 1.)
Nevertheless, the Legislature did not choose to follow the recommendation of the Law Revision
Commission that it expressly reserve for the trial court the issues involved in loss of design
immunity. (See 5 830.6.)
Why the Legislature chose not to do so, we do not know; the legislative history is silent on this
question. However, the one element of design immunity the Legislature did expressly reserve for the
court, the existence of substantial evidence supporting the reasonableness of the adoption of the plan
or design, differs significantly from the three elements of loss of design immunity. “In enacting
section 830.6, the Legislature was concerned lest juries be allowed to second-guess the discretionary
determinations of public officials by reviewing the identical questions of risk that had previously been
considered by the government officers who adopted or approved the plan.” (Baldwin, supra, 6 Cal. 3d
at p. 434.) The questions involved in loss of design immunity, e.g., whether the plan or design
[*20] has become dangerous because of a change of physical conditions, are not the identical
questions considered by the government officers who adopted or approved the plan. Therefore, the
Legislature would arguably not have had the same rationale for taking such questions away from the
jury. Again, “where experience has revealed the dangerous nature of the public improvement under
changed physical conditions, the trier of fact will not simply be reweighing the same technical data
and policy criteria which went into the original plan or design. Rather, there will then be objective
evidence arising out of the actual operation of the plan--matters which, of necessity, could not have
been contemplated by the government agency or employee who approved the design. No threat of
undue interference with discretionary decision-making exists in this situation.” (6 Cal. 3d at P. 435.1
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We decline Caltrans’s invitation to supply the language the Legislature omitted. When one part of a
statute contains a term or provision, the omission of that term or provision from another part of the
statute indicates the Legislature intended to convey a different meaning. ( Peoole v. Gardelev (19961
14 Cal. 4th 605, 621-622, 927 P.2d 713.) [*21] A court may not rewrite a statute, either by
inserting or omitting language, to make it conform to a presumed intent that is not expressed. (Code
Civ. Proc., 6 1858; Morillion v. Roval Packing Co. (20001 22 Cal. 4th 575, 585, 995 P.2d 139;
California Teachers Assn. v. Governins Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 633,
927 P.2d 1175.1
As Caltrans observes, several opinions of the Court of Appeal state that all of the elements necessary
to establish design immunity are legal issues for the court to decide. n3 However, as the Court of
Appeal in the present case observed, this view was expressed in the prior cases “without critical
comment or explanation and without reference to the text of [section 830.61.” Moreover, as the Court
of Appeal here further observed, all of these cases ultimately rely on one of two opinions, Mozzetti v.
City of Brisbane, 67 Cal. AD~I. 3d 565, 136 Cal. Rotr. 751 or Cameron, supra, 7 Cal. 3d 318. (See fn.
3, ante.)
---------------- _ -Footnotes- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
n3 See, e.g., Alvarez v. State of California (1999) 79 Cal. ADD. 4th 720, 728, citing Cameron, supra,
7 Cal. 3d at page 325; Higgins, supra, 54 Cal. App. 4th at pages 184-185, citing Uveno v. State of
California (1991) 234 Cal. ADD. 3d 1371, 1376, 286 Cal. Rotr. 328; Uyeno, at 1376, citing page
Mozzetti v. City of Brisbane (1977) 67 Cal. ADD. 3d 565, 572, 136 Cal. Rotr. 751 (Mozzetti) and
Muffett v. Rovster (1983) 147 Cal. ADD. 3d 289, 306, 195 Cal. Rptr. 73; Bane v. State of California
Jl989) 208 Cal. ADD. 3d 860, 867, 256 Cal. R&r. 468, citing Cameron, at page 325; Hefner, supra,
197 Cal. App. 3d at page 1014, citing Muflett, at pages 306-307; Mufiett, at page 306, citing
Mozzetti, supra, 67 Cal. App. 3d 565; Mozzetti, at page 572.
-------------_-_ -End Footnotes- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ [ *22]
Mozzetti did state that “design immunity is a legal issue for the court.” (Mozzetti, supra, 67 Cal. App.
3d at p. 572.) The statement, however, was dictum. The defendants requested an instruction on
design immunity, the trial court gave such an instruction, and the defendants then claimed on appeal
that the instruction was prejudicially erroneous because the issues involved in the defense of design
immunity are to be determined by the court rather than the jury. The Court of Appeal rejected the
contention, holding that the defendants were estopped from complaining of the purported
instructional error because they invited it; moreover, they had failed to present sufficient evidence on
any one of the three elements of design immunity. 167 Cal. Aoo. 3d at DP. 572-574.) The Court of
Appeal in Mozzetti was simply not presented with the question whether the elements involved in loss
of design immunity should be presented to the jury when, as here, the evidence as to those elements
is disputed.
In Cameron, the plaintiffs were injured when the automobile in which they were passengers went out
of control while the driver was attempting to negotiate an S-curve on a state highway. [*23] In
their suit against the state, the plaintiffs claimed the curve was improperly banked, creating a
dangerous condition that caused the accident. The trial court’s ruling, we observed, would be “most
accurately designated a ruling on a motion for directed verdict to the effect that the state had
established as a matter of law all the elements of the defense of design immunity contained in
section 830.6.” (Cameron, supra, 7 Cal. 3d at p. 324.) We reversed, holding that the state had
presented no evidence that the banking built into the curve “was the result of or conformed to a
design approved by the public entity vested with discretionary authority.” 17 Cal. 3d at D. 326.1 An
appreciation of the procedural context of the case is critical to a proper understanding of our decision
in Cameron. We did not say or even suggest that the first two elements of design immunity, much
less the three elements required to prove loss of design immunity, were issues of law for the court to
decide if it were not ruling on a motion for a directed verdict.
The question whether loss of design immunity is a question reserved for the court was not directly
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addressed in Baldwin. However, [*24] we appear to have assumed it was not reserved to the court
because we used the term “trier of fact,” n4 a choice of terminology that is significant both because it
is used interchangeably to refer to a judge or jury (Garner, Diet. of Modern Legal Usage (2d ed.
1995)
------mm-------mm -Footnotes- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
n4 “Where experience has revealed the dangerous nature of the public improvement under changed
physical conditions, the trier of fact will not simply be reweighing the same technical data and policy
criteria which went into the original plan or design.” (Baldwin, supra, 6 Cal. 3d at p, 435, italics
added.)
p. 891) and because it recognizes the factual, rather than strictly legal, character of the inquiry.
Moreover, the context in which the term was used strongly suggests the Baldwin court meant juries
when it referred to the trier of fact, for in the immediately preceding paragraph, the court speaks of
the purpose of design immunity as addressing the Legislature’s concern “lest juries be allowed to
second-guess the [*25] discretionary determinations of public officials by reviewing the identical
questions of risk that had previously been considered by the government officers who adopted or
approved the plan.” (Baldwin, supra, 6 Cal. 3d at p. 434, italics added.) Quoting the New York Court
of Appeals opinion in Weiss v. Fate (1960) 7 N.Y.Zd 579, 588 i167 N.E.2d 63, 200 N.Y.S.2d 4091, the
Baldwin court continues, ” ‘We are of the opinion that the traditional reliance on a iuv verdict to
assess fault and general tort liability is misplaced where a duly authorized public planning body has
entertained and passed on the very same question or risk as would ordinarily go to the jury.’ ”
JBaldwin, 6 Cal. 3d at p. 435, italics added.)
Caltrans’s remaining arguments are confusing. Article 1, section 16 of the California Constitution
provides in pertinent part that “trial by jury is an inviolate right and shall be secured to all . . . .‘I The
constitutional right to a jury trial is the right as it existed at common law, when the state
Constitution was first adopted. ( Crouchman v. Superior Court (1988) 45 Cal. 3d 1167, 1173-1174,
248 Cal. RDtr. 626, 755 P.2d 1075.) [*26] Caltrans makes a feint in the direction of arguing that a
plaintiff has no constitutional right to a jury trial as to loss of design immunity because the
underlying action--the action against a public entity under section 835 for an injury caused by a
dangerous condition of its property--did not exist at common law. However, Caltrans then pulls up
short and concedes the point: “There is no doubt--and we do not contend otherwise--that a plaintiff
has a right to a jury trial in such an action.”
Caltrans then switches direction and makes a very different argument-- that “the design immunity
defense is a special proceeding and there is no right to a jury trial in a special proceeding unless the
applicable statute expressly so provides.” (Italics added.) The second of these compound
assertions--that there is no right to a jury trial in a special proceeding unless it is made applicable by
statute--is unexceptionable. (See, e.g., Valleio etc. R. R. Co. v. Reed Orchard Co. (19151 169 Cal.
545, 556, 147 P. 238; Canavin v. Pacific Southwest Airlines (19831 148 Cal. ADP 3d 512, 534, fn.
10, 196 Cal. Rotr. 82; KinderK
[*27] However, the operative assertion--that the design immunity defense is a special proceeding--is patently incorrect. Judicial remedies are either actions or special proceedings. (Code
Civ. Proc., a.) An action “is an ordinary proceeding in a court of justice by which one party
prosecutes another for the declaration, enforcement, or protection of a right, the redress or
prevention of a wrong, or the punishment of a public offense.” (Code Civ. Proc., N.) “Every other
remedy is a special proceeding.” (Code Civ. Proc., u.) Caltrans does not attempt to explain why
the defense of design immunity should be considered a special proceeding, except to say that “[a] special proceeding may be commenced independently of the pending action.” This does not advance
Caltrans’s case because, as plaintiffs point out, “the bifurcated trial of the changed conditions
exception to the design immunity defense was not ‘commenced independently of the pending
action’ --it was part and parcel of the pending action.” In conclusion, Caltrans is simply wrong about
design immunity being a special proceeding; it is an affirmative defense in an action brought under
Government Code section 835 [*2S] to, in the words of Code of Civil Procedure section 22, “redress
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. . . a wrong.”
Next, relying on Windsor Sauare Homeowners Assn. v. Citation Homes (1997) 54 Cal. ADD. 4th 547,
Caltrans contends the issues involved in determining whether design immunity has been lost are to
be tried to the court because they are “mixed questions of law and fact.” Windsor Square is quite
inapposite. The question presented there was whether the facts underlying the defense of res
judicata are to be tried to the court. ( Id. at DD. 550, 557.1 The Court of Appeal’s explanation for its
conclusion that such factual issues are to be tried to the court makes it abundantly clear why Windsor
Square is distinguishable from this case. “The issues [underlying the applicability of the res judicata
defense] are often mixed fact-law determinations, involving, for instance, the assertion of
jurisdiction, a decision better made by the court alone. Ordinarily, the facts that need to be
determined are fairly simple--for example, what the complaint alleges in the first action versus what
the complaint alleges in the second action. The pleadings must be [*29] studied to determine what
claims were or could have been raised, who were the parties sued, whether the party against whom
the bar is asserted was in privity with a party to the prior suit, whether the prior adjudication was a
judgment on the merits. While all these issues may have factual predicates, they are peculiarly legal
determinations.” ( Id, at P. 557.1 It is simply not true that the issues involved in loss of design
immunity, e.g., whether the public entity had notice of the dangerous condition and had a reasonable
time to remedy it, are peculiarly legal determinations.
Finally, an amici curiae brief was filed by 89 California cities in support of Caltrans; the California
State Association of Counties and 16 more California cities subsequently joined the brief. The amici
curiae’s brief raises a flurry of arguments, and plaintiffs have moved to strike most of them on the
ground they were not presented in the trial court and not urged by the parties on appeal. Because
amicus curiae presentations assist the court by broadening its perspectives on the issues raised by
the parties, we are inclined, except in cases of obvious abuse of the amicus curiae privilege, [*30]
not to employ orders to strike as a means of regulating their contents. ( &i/v v. Arthur Youno & Co.
(1992) 3 Cal. 4th 370, 405, fn. 14, 834 P.2d 745.) Plaintiffs’ motion to strike is accordingly denied.
However, we will confine our discussion to what amici curiae denominate as the “central point” of
their brief, which is that “there are two times when a public entity may engage in a discretionary
design decision. The first is the initial approval of the design. The second is when, in light of later
notice that the design may be dangerous in actual operation, the entity evaluates whether the design
is still reasonable. This second decision is no less an exercise of discretion than the first. Therefore,
the protection of the substantial evidence test should apply equally to both. . . . Baldwin suggests
this conclusion, and the wording of the 1979 amendment to Government Code section 830.6 confirms
it.”
The passage in Baldwin that amici curiae find suggestive is the following: “It is clear that the
declarations submitted in support of the state’s motion in this case were insufficient to warrant entry
of summary judgment. As we have [*31] previously stated, these declarations contain facts amply
demonstrating the initial applicability of the design immunity provided by section 830.6. However,
understandably relying upon Cabell and Becker, the state failed to make any showing whatsoever on
the crucial issue of whether the immunity remains. Since, as we now hold, the planning immunity
may be dissolved by evidence that the plan or design under changed physical conditions has
produced a dangerous condition, it was incumbent on the state to present facts indicating that the
immunity is still intact. In the absence of such a showing, the state as moving party, has not
established all elements necessary to sustain a judgment in its favor. [Citations.] Consequently, the
entry of summary judgment was erroneous.” (Baldwin, supra, 6 Cal. 3d at pp. 439-440, second and
third italics added.)
Amici curiae concede that “Baldwin did not specify what facts would establish that immunity was not
lost. In Baldwin, the State did not attempt to show facts indicating the immunity remained.
Therefore, this Court had no opportunity to pass upon what facts would be required.” However, amici
curiae contend, [*32] “Baldwin hinted at the answer. It quoted from Weiss v. Fote [, supra,] Z
N.Y.Zd 579, 200 N.Y.S.Zd 409, 167 N.E.2d 63, a case the California Law Revision Commission had
considered when drafting section 830.6. ( Baldwin, rsuora.1 6 Cal. 3d at P. 433.) Baldwin quotes
Weiss for the proposition that ‘once having planned the intersection, the State was under a
continuing duty to review its plan in the light of its actual operation . . . .’ (Ibid., quoting Weiss,
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Jsuma.1 167 N.E.Zd at P. 67.1 Baldwin then interpreted Weiss to mean that once the entity [has
notice that] the design, under changed physical conditions, has produced a dangerous condition of
public property, ‘it must act reasonably to correct or alleviate the hazard.’ (Baldwin, supra, 6 Cal. 3d
at p. 434.) But Baldwin did not elaborate what action would suffice to retain the immunity.”
To the contrary, the state could have retained its immunity by correcting or alleviating the hazard,
and the Baldwin court clearly indicated the sort of measure that would have corrected the hazard.
The intersection in Baldwin had been [*33] designed without a left-turn lane, and because of a
large increase in traffic over the years, the design had become dangerous. (Baldwin, supra, 6 Cal. 3d
at pp. 427-429.) Simply erecting a barrier to prevent left turns would have corrected the hazard. (&
Cal. 3d at D. 437.) The state failed to show that it had undertaken any such corrective measures.
Moreover, although section 830.6 had not yet been amended, this court might have been receptive to
a showing that the state had not had sufficient time to obtain the funds for such a barrier or to install
it. We noted that “section 835.4 . , . provides that even if a plaintiff proves the existence of a
dangerous condition under section 835, the public entity may avoid liability if it establishes that ‘the
action it took to protect against the risk of injury created by the condition or its failure to take such
action was reasonable.’ The reasonableness of the action or inaction by the government body is to be
determined ‘by taking into consideration the time and opportunity it had to take action and by
weighing the probability and gravity of potential injury to persons and property foreseeably exposed
to the risk of injury [*34] against the practicability and cost of protecting against the risk of such
injury.’ ( 5 835.4.)” JBaldwin, 6 Cal. 3d at pp. 436-437, italics added.) So far as the opinion reflects,
the state made no such showing.
We now turn to the assertion by amici curiae that the wording of the 1979 amendment to section
830.6 confirms their contention that the amendment immunizes a second design decision--when an
entity, having been put on notice that the original design may have become dangerous because of
changed physical conditions, decides that the design is still reasonable--and that review of this
second design decision is also reserved to the trial or appellate court and is also subject to the
substantial evidence test.
Amici curiae rely upon the phrase in the introductory clause of the first of the three sentences that
were added to section 830.6 in 1979: “Notwithstanding notice that constructed or improved public
property may no longer be in conformity with a plan or design or a standard which reasonably could
be approved by the legislative body or other body or employee . . . .‘I (Stats. 1979, ch. 481, 5 1, p.
1638, italics added.) Amici curiae profess to find in Baldwin [*35] and the Legislature’s use of the
phrase no longer “two interlocking keys of the design immunity puzzle.” “The 1979 amendment’s
‘notwithstanding clause,’ ” amici curiae contend, “recites the kind of proof that will retain the
immunity: Proof that the public property still ‘conforms with a . . . design . . . which reasonably could
be approved by the legislative body or other body or employee.’ ” And this decision--the decision that
the original design could still be so approved--is the second design decision that amici curiae contend
is reserved to the court and subject to the substantial evidence test.
The problem with amici curiae’s argument is that is not what the Legislature said. What the
Legislature said is that the immunity continues for sufficient time to permit the public entity to
remedy the dangerous condition, or, if it cannot remedy it, to post warnings. The language in
question does not allude to a finding by the public entity.as to whether its design is or is not
reasonable in light of changed circumstances, but merely indicates that, notwithstanding the public
entity’s notice that its design immunity may have become unreasonable, its immunity continues
[*36] to provide it with reasonable time and opportunity to remedy or warn of the inadequacy of
the existing design. “Notwithstanding notice that constructed or improved public property may no
longer be in conformity with a plan or design or a standard which reasonably could be approved by
the legislative body or other body or employee, the immunity provided by this section shall continue
for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out
remedial work necessary to allow such public property to be in conformity with a plan or design
approved by the legislative body of the public entity or other body or employee, or with a plan or
design in conformity with a standard previously approved by such legislative body or other body or
employee. In the event that the public entity is unable to remedy such public property because of
practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain
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so long as such public entity shall reasonably attempt to provide adequate warnings of the existence
of the condition not conforming to the approved plan or design or to the approved standard.” (Stats.
1979, ch. 481, [*37] 5 1, p. 1638.)
In conclusion, we affirm the judgment of the Court of Appeal. n5
-----------mm--- _ -Footnotes- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
n5 Both plaintiffs and amici curiae request that we take judicial notice of various items in the
legislative history of the 1979 amendment to section 830.6. We grant the requests. We also grant the
request made by amici curiae that we take judicial notice of the signed copy of the trial court’s
statement of decision.
------------e-- _ -End Footnotes- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
BROWN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, 3.
Service: LEXSEEB Citation: 2001 Cal. LEXIS 4235 View: Full
Date/Time: Monday, July 23,200l - 6:24 PM EDT
About LexisNexis I Terms and Conditions
Coovriaht 0 2001 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
11 of11 IS 07/23/2001 3:25 PM
2001 CITY OF CARLSBAD
LEGISLATIVE PLATFORM
1. Local Government Finance:
(a)
W
(c)
03
@I
(9)
(h)
0)
ci)
(k)
(1)
W-0
(n)
(0)
(P)
Support measures that implement basic structural changes in state government
that result in state budget expenditures being brought into balance with state
revenues.
Support measures which safeguard existing revenue sources from preemption
by the State or County.
Support measures which would provide fiscal independence to cities.
Support legislation that makes funds to support public facilities (i.e. facilities,
open space) more available to local municipalities.
Support measures which relieve taxpayers of the burden of paying for services
which could be charged directly to the service user, and which simplify the
process of establishing such fees.
Support legislation that would provide greater accountability on the part of
counties for the distribution of funds back to municipalities, including, but not
limited to, fines and forfeitures.
Support measures to reinstate flexibility in the administration of Article XIII-B
(The Gann Initiative).
Oppose any change in revenue allocations which would negatively (current or future) affect local government, including the redistribution of sales tax, property
tax, transient occupancy tax and vehicle in-lieu fees.
Oppose any measure that shifts revenue from any unit of local government to
other agencies.
Oppose any measure that would make cities more dependent on the State for
financial stability and policy direction.
Support legislation to eliminate or repeal unfunded state and federal mandates
and oppose measures that would impose those mandates for which there is no
guarantee of local reimbursement or offsetting benefits, or would shift the cost of
government services to cities.
Oppose any measure that restricts or limits a public entity’s ability to use tax-
exempt debt for the purchase or construction of public purpose improvements.
Oppose legislation that shifts State/County criminal justice costs to cities.
Oppose the use of the federal gas tax for federal debt reduction.
Support legislation that streamlines permitting processes without undermining
the ability of local government to apply and be compensated for the enforcement
of reasonable building, planning and fire protection standards.
Oppose legislation that creates surcharges for state oversight of state mandated
programs.
1
(9) Support legislation that allows cities with civil service/personnel systems to
contract out services to the private sector to save taxpayer dollars.
2. Labor Relations:
(4
(b)
@>
(d)
W
(9
(9)
Support legislation that limits the ability of employees to receive workers’
compensation benefits for occupational injuries/illnesses that result from stress,
disciplinary action, or performance evaluations or consultations.
Support any measure that would reverse the imposition of compulsory and
binding arbitration with respect to public employees.
Oppose any measure that would grant employee benefits that should be decided
at the local bargaining table.
Oppose any legislation that would reduce local authority to resolve public
employee disputes, and impose regulations of an outside agency (such as
PERB).
Oppose measures that propose a standard higher than the normal civil ones in
disciplinary proceedings for peace officers.
Oppose legislation that expands or extends any presumptions of occupational
injury or illness and support legislation that repeals the presumption that the
findings of a treating physician are correct.
Oppose legislation that increases workers’ compensation benefits without
providing for concurrent cost controls.
3. Tort Reform:
(a) Support measures to reform California’s tort system to reducenimit liability
exposure for public agencies and restore the ability of public agencies to obtain
affordable insurance.
(b) Support legislation that recognizes or broadens immunities for public agencies
and oppose legislation that attempts to limit or restrict existing immunities.
4. Transportation:
(a) Support measures that would increase the ability of local agencies to finance
local transportation facilities.
(b) Support measures to finance local and regional transportation facilities and improvements, including alternative modes of transportation and transportation
demand management systems.
@> Support legislation that a court, not a jury, must determine whether facts exist that result in a loss of governmental immunity pursuant to Government Code
sections 830 et. seq. @
2
03 Oppose transportation proposals that would adversely affect the quality of life in
North San Diego County by causing traffic congestion, air pollution or other
problems.
5. Coastllne:
(4
(b)
Cc)
(d)
(e)
(9
Support measures which provide funding for urban waterfront restoration and
enhancement.
Support legislation that would aid the restoration, preservation and enhancement
of beachfront property, sand, bluffs, access and parking.
Support measures that would preserve and extend the authority of cities over
land use regulations over the placement of onshore facilities which service
offshore oil drilling.
Support legislation that requires the double hulling of all new oil tankers and the
retrofitting of all existing oil tankers.
Support legislation that promotes aquatic research, education, aqua culture, and
other related uses.
Oppose any offshore oil leasing or drilling within 20 nautical miles of the San
Diego coast.
6. Water Manaaement:
(4 Support a balanced water transportation and regional storage system that
provides for the needs of San Diego County while protecting the Delta and
Central Valley regions with minimal impact on agriculture and the environment.
(W Support measures that increase water supply and storage facilities within the
region and allow for economically feasible water transfers within the system.
w Support efforts that will encourage water conservation practices by all water
consumers.
(c) Support efforts to assist in the production and distribution of reclaimed water.
(4 Support measures that provide for the equitable allotment and distribution of
preferential water rights.
7. Environment:
(a) Support efforts for the safe and cost effective disposal of solid, hazardous and
medical waste.
09 Support legislation that encourages timely action to reduce the amount of ozone
depleting compounds discharged into the atmosphere.
((3 Support legislation that allocates state and/or federal funds for the construction
of facilities to capture and treat the flow of raw sewage entering San Diego from
Tijuana.
3
03
W
(9
(9)
(W
Support measures, which promote the recycling/reclaiming of natural resources,
including water, timber, oil, gas minerals and earth metals.
Support measures that would make low-interest loans and/or grants available to
local agencies for programs that would encourage the recycling/reclaiming of
resources.
Support legislation that streamlines federal and State of California’s
environmental review processes and limits court reviews of environmental
documentation.
Support legislation to develop an ongoing funding source to implement the
federally mandated Clean Water Act of 1987 and to ensure protection of local
resources.
Support legislation that promotes alternatively powered vehicles in the State
vehicle buying program.
8. Waste Manaqement:
(a) Oppose legislation restricting the ability of local governments to regulate solid
waste and recyclable materials.
(b)
(c)
03
Support measures that promote market development of recyclable materials.
Support legislation toward the procurement of recyclable and recycled materials.
Support measures that extend the deadlines and streamline regulations for AB
939 mandates.
(e)
(9
Support legislation that promotes source reduction measures.
Support measures that encourage the streamlining of California Integrated
Waste Management Board grant programs and provide maximum flexibility to
local government.
(9) Oppose legislation regulating “flow control” of solid waste materials.
9. General Government:
(a)
(b)
(cl
(d)
@I
(9
Oppose legislation that weakens local autonomy or home rule authority to govern
municipal affairs.
Support measures which would strengthen cities’ ability to reorganize and
consolidate water districts, sewer districts, school districts, and other special
districts that operate within or provide service to a city.
Support legislation that provides State assistance for local public libraries.
Support measures which provide adequate funding for the State Library.
Support measures which lead to a state or national energy policy.
Support legislation that reinstates competition in the telecommunications industry.
4
(9)
(h)
0)
(k)
(1)
(m)
ON
(0)
(PI
(4)
Support state and federal funding and legislation for the arts that benefits local
communities.
Support legislation reducing and providing for recovery of costs, maintaining
privacy, and eliminating attorney’s fees for administering public records laws.
Oppose federal measures which remove the deduction of all state and local
taxes for federal income tax purposes.
Support telecommunications regulations that:
1. Maintain local control over public right-of-ways.
2. Provide just compensation for use of right-of ways and overseeing public service standards.
3. Ensure public, educational, and governmental access is available and
affordable.
4. Provide free access for public information services and announcements.
Support legislation prohibiting firms from bidding on City projects if the firm is
currently involved in legal proceedings against the City arising from prior
projects.
Support legislation that facilitates economic development efforts and encourages
businesses to locate or remain in California.
Oppose measures that would eliminate state licensing requirements for
professionals involved in designing public and private developments.
Support legislation that will foster independence of older Californians.
Support legislation that requires cable television companies to assure that audio
and video portions of adult entertainment channels are completely blocked 24
hours a day in the homes of non-subscribers.
Support measures that provide funding for community park facilities, open
space, and recreation programs.
Support legislation that either requires citizen initiatives to comply with CEQA
before placing the initiative on the ballot or exempting from this requirement a
City Council initiated ballot measure dealing with the same subject matter on the
same ballot.
10. Safetv Services:
(a) Support legislation that strengthens local law enforcement.
(b) Support measures which strengthen present state or federal laws to increase penalties and give local governments the power to restrict or regulate the sale,
manufacture, or use of dangerous drugs.
03 Support measures that would provide a greater share of seized assets to
localities and increased latitude for local spending.
(d) Support legislation that discourages, prevents, and penalizes driving under the
influence of drugs or alcohol.
5
(e) Support legislation that allows local agencies to recover costs from guilty parties
for public property and services in accidents involving driving under the influence
of drugs and/or alcohol, from the guilty party.
(9 Support legislation that would allow for the destruction, confiscation, or extended
safekeeping of firearms or other deadly weapons involved in domestic violence
incidents.
(9) Oppose legislation that would restrict or reduce the ability of local government to
determine the extent or method of fire hazard mitigation necessary in or around
wildland areas.
(h) Support legislation granting immunity to or limiting liability of governmental
entities and their employees who provide emergency medical instructions and/or
treatment as a part of their public safety dispatch system.
(0 Oppose legislation that would restrict a local government from revising the
delivery of emergency medical service to its citizens and support measures
which broaden these powers.
(i) Support legislation that would assist local safety agencies in regionalization of
activities such as training, crime labs, and other appropriate functions.
(W Support legislation that would provide funding for addiction rehabilitation
treatment.
II. Land Use Planning:
(a)
80
(c)
(d)
W
Support legislation to strengthen the legal and fiscal capability of local agencies
to prepare, adopt and implement fiscal plans for orderly growth, development,
beautification and conservation of local planning areas, including, but not limited
to, regulatory authority over zoning, subdivisions, annexations, and
redevelopment areas.
Support measures in local land use that are consistent with the doctrine of
“home rule” and the local exercise of police powers in planning and zoning
processes.
Support legislation requiring environmental review of initiatives to amend a
general plan or zoning ordinance before the initiative is placed on the ballot or
enacted.
Support legislation to allow cities to issue all coastal development permits within
their jurisdiction consistent with a previously certified coastal plan.
Support legislation that facilitates and provides funds for habitat management
planning, maintenance, administration, and local control.
12. Housing and Communitv Development:
(a) Support efforts to develop federal and state participation, financial support and incentives (tax benefits, grants, loans) for programs which provide adequate,
affordable housing (home ownership and/or rental opportunities) for all economic segments of the community including the elderly, handicapped, and low-income
6
(W
(cl
(d)
@I
0
(h)
0)
0)
(k)
(1)
(m)
persons.
Support legislation that provides incentives (tax benefits, grants, loans, credits
for affordable units) to local agencies, private developers and non-profit groups
in order to rehabilitate residential units and commercial properties.
Support legislation that would provide additional funding for rental subsidy
assistance programs (such as Section 8) via more vouchers or certificates.
Support repeal of Article 34 of the California Constitution.
Support legislation that allows entitlement cities to use CDBG funds for new
construction of housing units.
Support state inclusionary housing legislation that allows for adoption of local
programs such as that implemented in Carlsbad.
Support the repeal or modification of the Davis-Bacon Wage Act that sets a
prevailing wage scale for public projects substantially increasing the cost of
publicly assisted housing developments.
Support legislation that will consolidate and streamline the administration and
reporting requirements for the Community Development Block Grant program.
Support the consolidation of the Section 8 Certificate and Voucher Programs.
Oppose legislation that would give the State financial/administrative
responsibilities for the Community Development Block Grant program (CDBG).
Oppose legislation that makes the local municipality or redevelopment agency
financially responsible for the removal, abatement or mitigation of hazardous
materials.
Support legislation that requires availability of adequate school facilities
contemporaneously with occupancy of housing.
13. RedeveloPment:
(a) Support reform of reporting requirements for the Redevelopment Agency which
simplify the process and eliminate the confusion regarding which reports to file
with which State agency (Housing and Community Development or Controllers
Office or both).
W
w
Oppose legislation that would prohibit/limit the establishment of new
redevelopment project areas and/or expansion of existing project areas.
Oppose any legislation that allows reallocation of tax increment revenues by the State to finance agencies and/or projects other than the redevelopment project
which generated the increment.
14. Child Care:
(a) Support the reduction of present regulatory complexities.
(W Support the reduction of the burden of insurance costs.
7
6) Support funding for the construction, renovation and/or maintenance of child
care facilities.
W Support the provision of reasonable tax incentives for employers who offer child
care services.
W Support legislation that restores local control over quality childcare in areas such
as licensure, staffing, education and training.
15. Immlqrants:
(a) Support legislation which recognizes the unique and difficult problems associated
with recent legal and illegal immigrants to the United States, and assist local
communities in dealing with these problems in such areas as housing, health
services, education and employment.
Support legislation to increase the number of border patrol agents at the
International Border.
w Support state and federal assistance to local communities attempting to address
the needs of migrant workers.
16. Enercly
(a)
(b)
(c)
W
W
(9
(9)
Support legislation that develops regulatory and market mechanisms that ensure the state achieves the greatest level of energy self-sufficiency and security as
soon as practical.
Support legislation that establishes a market structure and rules that promote
real competition and reasonable, justifiable prices.
Support legislation that aggressively pursues refunds to consumers for rates that have been determined to be unjust or unreasonable.
Support legislation that commits to and expedites the development of needed
infrastructure (e.g. generation, transmission, and natural gas pipelines) to create
robust and functional markets.
Support legislation that increases the diversity of the state and region’s energy
resources, particularly increasing the use of higher-efficiency, clean distributed
generation (e.g. combined heat and power) and renewable resources.
Support legislation that encourages and incentivizes the adoption of new and emerging technologies that provide real-time pricing to promote better price
response by consumers.
Support legislation that minimizes adverse environmental impacts of the state
and the region’s energy use.
17. Public Health
(a) Support any measure that protects children and youth from exposure to tobacco
and tobacco-related products.
0)) Support legislation that rewgnizes and prevents the adverse impacts affecting
the public health and welfare of its citizens, and particularly minors.
(c) Recognize that Section 6404.5 of the California Labor Code regulates smoking in
California workplaces, and requires local governments to initiate enforcement of
this law.