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Outside the Box Boilerplate Constitutional
AN TE
TH TA
E
ES ISSU
AL
30
RE
NU
THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION
AL
W
LA
JANUARY 2015 / $4
PLUS
EARN MCLE CREDIT
Boilerplate
Contract
Provisions
Constitutional
Signage
Ordinances
page 21
page 28
Beacon
Residential
page 10
Premises
Liability
for Crime
page 13
The Perils of
CEQA Reform
page 36
Outside
the Box
Los Angeles lawyer Tina Shim
reflects on the precedent for the
court of appeal’s decision
in San Francisco Beautiful
page 16
F E AT U R E S
16 Outside the Box
BY TINA SHIM
In San Francisco Beautiful v. City and County of San Francisco, the court of appeal
ruled against granting an exception to the exception to CEQA review
21 Boilerplate Breakdown
BY ROBERT ODSON AND STACI TOMITA
Frequent use of boilerplate in commercial real estate contracts does not
preclude judicial review in light of statutory law and public policy
Plus: Earn MCLE credit. MCLE Test No. 242 appears on page 23.
28 Sign Languages
BY CYNDIE M. CHANG AND PAUL J. KILLION
The cities of Palm Springs, Pomona, and Monterey Park have all faced
constitutional challenges to commercial signage ordinances
Los Angeles Lawyer
D E PA RT M E N T S
the magazine of
the Los Angeles County
Bar Association
8 On Direct
Sandra Levin
INTERVIEW BY DEBORAH KELLY
January 2015
Volume 37, No. 10
COVER PHOTOGRAPH:
TOM KELLER
13 Practice Tips
Determining premises liability for the
criminal acts of third parties
BY BRIAN KABATECK AND DREW R. FERRANDINI
9 Barristers Tips
A guide to being receptive to a superior’s
constructive criticism
BY NABIL A. BISHARAT
36 Closing Argument
Concerns about a CEQA reform that
favors multimodal transportation
BY MITCHELL M. TSAI
10 Practice Tips
The duty of care of design professionals
after Beacon Residential
BY MARK R. HARTNEY AND CHARLES L. PERNICKA
LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly,
except for a combined issue in July/August, by the Los Angeles
County Bar Association, 1055 West 7th Street, Suite 2700,
Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid
at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership
dues. Nonmember subscriptions: $28 annually; single copy
price: $4 plus handling. Address changes must be submitted
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VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYER
E-MAIL CAN BE SENT TO [email protected]
EDITORIAL BOARD
Chair
MARY E. KELLY
Articles Coordinator
DONNA FORD
Assistant Articles Coordinator
TED M. HANDEL
Secretary
JOHN C. KEITH
Immediate Past Chair
PAUL MARKS
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CAROLINE BARBEE
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COMM. ELIZABETH MUNISOGLU
PAUL OBICO
CARMELA PAGAY
AMANDA PAWLYK
DENNIS L. PEREZ (PAST CHAIR)
GREGG A. RAPOPORT
GARY RASKIN (PAST CHAIR)
JACQUELINE M. REAL-SALAS (PAST CHAIR)
A. JOEL RICHLIN
DAVID SCHNIDER (PAST CHAIR)
NANCY L. SCHROEDER
STEVEN SCHWARTZ
HEATHER STERN
MATTHEW D. TAGGART
DAMON THAYER
THOMAS H. VIDAL
STAFF
Editor
ERIC HOWARD
Art Director
LES SECHLER
Director of Design and Production
PATRICE HUGHES
Advertising Director
LINDA BEKAS
Administrative Coordinator
MATTY JALLOW BABY
Copyright © 2014 by the Los Angeles County Bar Association. All rights
reserved. Reproduction in whole or in part without permission is
prohibited. Printed by R. R. Donnelley, Liberty, MO. Member Business
Publications Audit of Circulation (BPA).
The opinions and positions stated in signed material are those of
the authors and not by the fact of publication necessarily those of the
Association or its members. All manuscripts are carefully considered by
the Editorial Board. Letters to the editor are subject to editing.
4 Los Angeles Lawyer January 2015
LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION
OF THE LOS ANGELES COUNTY BAR ASSOCIATION
1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553
Telephone 213.627.2727 / www.lacba.org
LACBA OFFICERS
President
LINDA L. CURTIS
President-Elect
PAUL R. KIESEL
Senior Vice President
MARGARET P. STEVENS
Vice President and Treasuer
MICHAEL K. LINDSEY
Assistant Vice President
HON. BRIAN S. CURREY
Assistant Vice President
CHRISTINE C. GOODMAN
Assistant Vice President
DAVID K. REINERT
Barristers President
DEVON MYERS
Barristers President-Elect
ROBERT S. GLASSMAN
Immediate Past President
PATRICIA EGAN DAEHNKE
Chief Executive Officer/Secretary
SALLY SUCHIL
Chief Financial & Administrative Officer
BRUCE BERRA
General Counsel & Chief Administrative Officer
W. CLARK BROWN
BOARD OF TRUSTEES
HARRY W.R. CHAMBERLAIN
BRIAN K. CONDON
DUNCAN W. CRABTREE-IRELAND
DANIEL M. CROWLEY
REBECCA A. DELFINO
HARUMI HATA
STACY R. HORTH-NEUBERT
RICHARD D. KAPLAN
SAJAN KASHYAP
SARAH E. LUPPEN
MARCELLUS A. MCRAE
ANNALUISA PADILLA
JUAN A. RAMOS
DIANA K. RODGERS
SARAH V.J. SPYKSMA
SUSAN KOEHLER SULLIVAN
JEFF S. WESTERMAN
AFFILIATED BAR ASSOCIATIONS
BEVERLY HILLS BAR ASSOCIATION
CENTURY CITY BAR ASSOCIATION
CULVER MARINA BAR ASSOCIATION
GLENDALE BAR ASSOCIATION
IRANIAN AMERICAN LAWYERS ASSOCIATION
ITALIAN AMERICAN LAWYERS ASSOCIATION
JAPANESE AMERICAN BAR ASSOCIATION
JOHN M. LANGSTON BAR ASSOCIATION
KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES
MEXICAN AMERICAN BAR ASSOCIATION
PASADENA BAR ASSOCIATION
SAN FERNANDO VALLEY BAR ASSOCIATION
SANTA CLARITA VALLEY BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH BAY BAR ASSOCIATION
SOUTHEAST DISTRICT BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
Los Angeles Lawyer January 2015 5
A
commitment to make fellow attorneys aware of new
legal precedents that affect their practices and clients.
A willingness to sacrifice significant personal time to
create, research, write, and rewrite a substantive legal article. A desire to build up the professional community. These
are the qualities that define the contributors to Los Angeles Lawyer.
This column for the annual real estate issue has often ended with an expression
of gratitude to the writers who devoted their time and energy to submitting articles
for this special issue. This year, we break from tradition to express appreciation to
each author (and the publication staff) for their contributions right from the start.
Writing a continuing legal education piece or a Practice Tip for Los Angeles
Lawyer is hardly a proverbial walk in the park. Sam Lipsman, the late publisher of
this magazine, was a perfectionist who set the editorial bar exceptionally high. Sam
did not want scholarly law review commentary, but he did expect articles to contain
legal content that would enhance and support the practices of LACBA’s members. The
Editorial Board and staff continue to honor, respect, and follow Sam’s publication standards today.
Any author who approaches this editorial standard must have a concept—but not
just any; the concept must be original and involve a topic that is current and relevant
to litigators or transactional attorneys. The topic must relate to a defined substantive
or procedural area of the law. Once the concept comes into focus, the author must spend
time researching and analyzing relevant case law, statutes, regulations, and publications related to the proposed topic and developing a framework for the article.
After that comes the moment when hands must be placed on the keyboard or, if
you are old school, pen is put to paper. The author must write the first of what likely
will be several drafts before the article is finally in a form that can be submitted for
review and editing by a member of the Los Angeles Lawyer Editorial Board.
Like the authors, Editorial Board members are volunteers. Board members give up
their time and sweat to edit articles, working with writers to hone each article into a
form that is clear, accessible, and supported by legal precedent. It is rare for this goal
to be accomplished on the first draft. It is more likely that a few revisions are needed
before an article can be submitted to the editorial staff for final polishing.
The contributors to this year’s real estate issue have not only survived this ordeal
but have also excelled in covering a breadth of topics relevant to those who practice
in this area. The topics in this issue include the duty of care of design professionals,
CEQA, enforceability of boilerplate lease provisions, liability for the criminal acts of
third parties, and the constitutionality of signage regulations.
While this special issue is dedicated to real estate, no policy exists to prevent publication of articles on this subject area throughout the year. On the contrary, if a decision is published or a statute is enacted that relates to some facet of real estate, environmental, or land use matters that should be covered in 2015 rather than in 2016,
we strongly encourage you to submit that article.
■
Ted M. Handel is a partner in the Business Solutions Practice Group of Haight Brown &
Bonesteel, LLP, where he represents developers and nonprofits in real estate and corporate
matters. Paul S. Marks is the former chair of the Editorial Board of Los Angeles Lawyer and
a partner with Neufeld Marks, a boutique law firm located in Little Tokyo. Paul Obico is a partner at Allen Matkins Leck Gamble Mallory & Natsis LLP, where he focuses on tax matters and
joint ventures.
6 Los Angeles Lawyer January 2015
on direct
INTERVIEW BY DEBORAH KELLY
Sandra Levin Executive Director of the LA Law Library
Is LA Law Library financially sound? Yes. We
are primarily funded by civil filing fee revenue.
What book is on your nightstand? The Fault
in Our Stars, so I could be able to talk to my
daughter about it.
The Santa Monica branch closed in 2013.
Should we expect more closures? No. Actually, the so-called closures are more like
transformations in our book. We have transformed a few locations into digital resources.
We call them eBranches. It’s not yet open in
Santa Monica.
What fictional hero or heroine would you like
to be? Someone with special powers.
You went to Berkeley, then Boalt. Why did
you decide to become a lawyer? I had no intention of being a lawyer. I became very interested in gender discrimination, human
rights, and civil rights and decided that law
school would be interesting.
SANDRA LEVIN | A former mayor and council
member of Culver City, Sandra Levin previously
served as the general counsel of the LA Law
Library.
What is the perfect day? Kayaking in the
Marina in the morning, getting a little work
done working on a new program, and then
spending some time with my kids.
What is overrated about working at LA Law Library? People don’t realize the funding issues
that we have.
What is underrated? The job satisfaction.
How much we’re able to do for the community. It’s amazing.
What is the biggest misconception about
your current job? People think that law libraries are just big buildings full of books.
We are so much more than that.
Why a brick-and-mortar building when so
much virtual information is available online?
People need a live human being to help and
a place to work. That has to happen somewhere.
What is the future of LA Law Library? To be a
vibrant educational institution in the Los
Angeles community.
8 Los Angeles Lawyer January 2015
What was the academic mood of the East Bay
area in the 80s? Boalt Hall was an interesting place to be in the late 80s. There were a
lot of gender issues going on, change going
on as women professors were fighting for
and being granted tenure.
Your first paid law job after Boalt was working
with Riordan & McKenzie, which lasted for 13
years. What was that like? It was terrific. I interviewed to find a firm that was happy with
who I was.
Which magazine do you pick up at the doctor’s office? I pick up something really silly
to laugh at, like a fashion magazine.
What scared you the most the first time you
stood in front of a judge? That he or she
would ask me a question that I didn’t know
the answer to. I was ridiculously prepared.
What concerned you the most when you became Executive Director of LA Law Library in
December 2012? That I had a lot to learn
about library sciences.
Anything fun planned for LA Law Library? We
have eBranches that we’ve just launched—
one in the Los Angeles County Bar Association offices.
What is your favorite vacation spot? Camping
in the Santa Barbara Mountains with my
kids.
What do you do on a three-day weekend?
Rancho Oso by Lake Cachuma.
Is there one significant case that you remember from your time there? There were a series
of election cases that I handled that had to
do with the right to anonymity under the Political Reform Act.
What are your retirement plans? I don’t
know when or whether I’ll retire.
What was your best job? This one.
Are you on Twitter? The library is. We follow
Grand Park and other downtown activities.
What was your worst job? I spent a week as a
receptionist in a law firm. There was an oldfashioned switchboard you had to plug and
unplug. I was terrible at it.
What characteristic do you most admire in
your mother? Generosity.
If you were handed one million dollars tomorrow, what would you do with it? Make sure
my kids had appropriate college accounts
and try to start my own charitable fund to
support law-related activities.
Which television shows do you DVR? Mad
Men, The Good Wife, Graceland.
Which person in history would you like to
take out for a beer? Sandra Day O’Connor.
What are the three most deplorable conditions in the world? Poverty. Illness. Ignorance.
Who are you two favorite U.S. presidents?
Lincoln and FDR.
What is the one word you would like on your
tombstone? Helpful.
barristers tips
BY NABIL A. BISHARAT
A Guide to Being Receptive to a Superior’s Constructive Criticism
New attorneys need to appreciate that criticism of their work prodWHEN A NEW ATTORNEY SEES the phrase “Please see me” in an e-mail
or on a draft of a brief, he or she may feel that something particularly uct is not about what the supervising attorney wants to hear. Rather,
menacing is lurking behind this ostensibly benign request. Inevitably, it is about providing what the court requires in order to rule in the
it seems, the supervising attorney who wrote the request will explain client’s favor. The sooner new attorneys can appreciate this fact, the
that the work product is not good enough. Maybe the research is easier it will be for them to accept and respond effectively to criticism.
Third, criticism of work product is not personal criticism. Getting
wrong, or the organization is messy. The supervising attorney may
think the writing is sloppy or the conclusions are legally incorrect. Then into, attending, and graduating from law school, in addition to
come the comments regarding misspellings, missing punctuation, studying for and passing the bar exam, are certainly accomplishments
and variances in formatting. Interspersed with this criticism is a bar- of which every new lawyer should be proud. However, this pride must
rage of questions: “Did you research the statutes?” “Did you actually be tempered by a sense of humility. While one may be a good writer,
read the cases?” “I don’t understand what you
are saying here—did you just copy this from
another brief?” “Did you look at the exemplars
New attorneys need to appreciate that work product criticism is
I sent you?” “You had all week to work on
this—why isn’t this better?”
There are five considerations that attorneys
necessary to build on and refine the skills gained in law school.
new to the practice of law need to remember in
order to respond effectively to criticism. First,
it is important to understand that criticism is a
fundamental part of the practice of law. In many ways, the legal sys- a successful journal or law review editor, or a star moot court or mock
tem is one big criticism pyramid in which supreme courts criticize trial team member, these academic pursuits were skill-building endeavappellate courts, appellate courts criticize trial courts, and trial courts ors. Skill-building does not end simply because a law school diploma
criticize the legal arguments made by the attorneys before them. now hangs on an office wall. New attorneys need to appreciate that
Appreciating this aspect of the legal field helps put criticism of work work product criticism is necessary to build on and refine the skills
product in context. The only way to move up this pyramid is to put gained in law school. Taking criticism as a personal attack will
together the best argument possible, which means refining it over and diminish the ability to improve in these areas, which is contrary to
over again before it is submitted to the trial court. This process starts the intent of constructive criticism.
Fourth, new attorneys need to remember to accept, explain,
with a more seasoned attorney’s reviewing a newer attorney’s work
confirm, and act. New associates should always make sure they 1)
product.
Second, the practice of law is different from law school. Law accept responsibility for errors or mistakes that are obvious on their
schools teach legal theory and how to think like a lawyer. They do face, 2) explain how they arrived at their conclusions, 3) confirm what
not teach how to practice law. Most law school exams consist of list- changes are needed and why, and 4) act on those changes. For examing every possible legal issue or element of a cause of action one can ple, if formatting and spelling errors are rampant in the document,
remember or picking the best answer on a multiple choice exam. it is a waste of time nitpicking whether spellcheck was run. Instead,
Further, because most law schools grade on a curve, students spend the focus should be on explaining the research and reasoning when
three years having their work product only generally criticized, plot- substantive criticism is made. This step helps the supervising attorted along a bell curve, and slotted into broad percentiles. Most law ney understand the associate’s work process and identify areas that
students never have to defend or explain their work product, with need further development. Next, the junior attorney should confirm
lamentations like “that professor grades hard” or “I always do poor- that he or she understands not only what changes should be made,
ly on multiple choice tests” typically disposing of the need for greater but why those changes are needed. Finally, act affirmatively by
making all requested edits in a timely manner.
analysis.
Finally, more important than all the rest, a new attorney needs to
Judges, however, are not professors. They do criticize work product, and they do it in the open for everyone to see and hear. Simply remember not to panic. Constructive criticism is part of the job,
demonstrating knowledge is insufficient, and there are no bell curves and even the most abrasive supervising attorney knows that great
or percentiles. Courts require legal precision and factual application lawyers are made, not born. In that regard, “please see me” is not a
in order to rule on an issue. While experienced attorneys under- threat but an invitation to gain skills that will turn a new attorney
■
stand this, new lawyers often lack this context and tend to respond into a seasoned advocate.
to criticism by scrambling to discern what they believe the supervising attorney wants to hear, much as they did when trying to figure Nabil A. Bisharat is an associate with the Life Sciences & Health Industry pracout what a professor or bar exam grader wanted to see.
tice group at Reed Smith LLP in Los Angeles.
Los Angeles Lawyer January 2015 9
practice tips
BY MARK R. HARTNEY AND CHARLES L. PERNICKA
RICHARD EWING
The Duty of Care of Design Professionals after Beacon Residential
FOR YEARS, DESIGN PROFESSIONALS HAVE avoided negligence liability to third-party property purchasers by arguing that their role
makes them too remote from the purchasers. Instead, design professionals usually became involved in a construction lawsuit when they
were sued by the builders or developers with whom they had contracts.
This paradigm is changing as a result of the California Supreme Court’s
holding in Beacon Residential Community Association v. Skidmore,
Owings & Merrill LLP.1
In Beacon Residential, the court ruled that in the context of residential development, design professionals owe a duty of care to
third-party property purchasers. The court distinguished earlier case
law that had restricted liability in cases in which design professionals only prepared plans or made design recommendations and held
that design professionals can be liable to a purchaser for negligence
even when they do not actually build the project and do not exercise
control over construction decisions. The supreme court declined to
follow the court of appeal’s finding of a statutory duty of care, relying instead on a common law multifactor test. The holding still
allows design professionals to argue that the rule is not absolute but
makes it more difficult for them to avoid litigation at an early stage
and increases their exposure to liability.
The plaintiff in Beacon Residential was a condominium homeowners association that, on behalf of individual homeowners, sued the
developer and the project architects for construction defects that the
plaintiffs argued were caused by negligent architectural design work.
The architects filed demurrers, which the trial court sustained, finding
that the claims did not show that the architects did anything beyond
the typical role of an architect in making recommendations to an
owner and that there is no duty owed by architects to future condominium purchasers when the architects act in that capacity.2 The court
of appeal reversed, finding both a common-law duty and a statutory
duty under the Right to Repair Act.3 The architects appealed the issue
to the California Supreme Court, which affirmed the court of appeal’s
ruling on more narrow grounds.
Building on a long history of negligence case law, the supreme
court held that in circumstances in which the design professional is not
subordinate to any other design professional, a duty of care is owed to
future purchasers. The court found a duty even though the developer
made final decisions on the architect’s recommendations and the contractors had control over the construction process and implementation
of plans and recommendations.4 The court noted that in hiring the architect, the developer relied upon the architect’s specialized training, technical expertise, and professional judgment. Moreover, the court found
that the architect applied this expertise throughout the construction of
the project, conducting inspections, monitoring contractors’ compliance
with plans, and altering design requirements as issues arose.5
The court based its holding on an evaluation of factors developed
in two earlier California Supreme Court decisions, one holding that
a duty was owed to third parties and another holding that it was not.
In the first case, Biakanja v. Irving,6 the court had held that a notary
10 Los Angeles Lawyer January 2015
public who negligently drafted a will could be liable to the third-party
intended beneficiary of the will. Applying the factors set forth in
Biankanja, The court in Beacon considered 1) the extent to which the
transaction was intended to affect the future homeowner, 2) the
foreseeability of harm to the homeowner, 3) the degree of certainty
that the homeowner suffered injury, 4) the closeness of the connection
between the design professional’s conduct and the injury suffered, 5)
the moral blame attached to the design professional’s conduct, and 6)
the policy of preventing future harm.7 The Biakanja court, in the context of a notary’s faulty preparation of a will, had held that the preparation of the will was intended to affect the beneficiary, it was foreseeable that faults in the preparation of the will would cause the
intended beneficiary loss, the loss of benefits that the will was intended
to provide was clearly suffered by the intended beneficiary, and, but
for the negligent preparation of the will, that loss would not have been
suffered. Therefore, the loss was closely connected to the notary’s conduct, and the moral blame attributed to the conduct was high—it
amounted to the unauthorized practice of law—which the court held
should be discouraged as a matter of policy.8
The Beacon Residential court arrived at a similar outcome when
it considered the Biakanja factors in the context of an architect’s role
Mark R. Hartney is the chair of the litigation department at the Los Angeles
branch of Allen Matkins, and his practice centers on real estate, construction,
and business litigation. Charles L. Pernicka, a member of the litigation practice group in the firm’s San Diego office, focuses his practice on business and
real property-related litigation.
in residential construction. The supreme court
held that 1) the architects’ work was intended
to benefit the homeowners living in the residential units that the architects designed and
helped to construct, 2) it was foreseeable that
these homeowners would be among the limited class of persons harmed by the negligently
designed units, 3) the homeowner association’s members had suffered injury because
the design defects made their homes unsafe and
uninhabitable during certain periods, 4) in
light of the nature and extent of the architects’ role as the sole architects on the project,
there was a close connection between their
conduct and the injury suffered, 5) because of
the architects’ unique and well-compensated
role in the project as well as their awareness
that future homeowners would rely on their
specialized expertise in designing safe and habitable homes, significant moral blame attached
to their conduct, and 6) the policy of preventing future harm to homeowners reliant on
architects’ specialized skills supported recognition of a duty of care, all of which favored
imposing a duty of care on architects.9
The second case that the Beacon Residential
court considered in its review of common law
factors was Bily v. Arthur Young & Company,
in which the court had held that an accounting firm that audited a company did not owe
a duty to third-party investors in the company.10 In Bily, the court based its decision of
no liability on three central concerns. The
court first explained that auditors exposed to
negligence claims from all foreseeable third
parties faced potential liability far out of proportion to their fault, including because the
company being audited retained primary control over the financial reporting process, which
resulted in a mismatch between an auditor’s
“secondary” role in the financial reporting
process and the “primary” role attributed to
an auditor in a negligence suit by a third party.
Second, the class of potential plaintiffs in auditor liability cases was generally more sophisticated than the ordinary consumer, and so
could rely on their own audits or direct communications with a company’s auditor to protect themselves and could pursue claims based
on contract rather than tort liability to control
and adjust the pertinent risks. Third, the Bily
court expressed skepticism that holding auditors liable to third-party investors would
increase the quality of audits.11 Limiting its
decision to the facts of the case before it, the
Bily court explained that in other circumstances auditors could owe a duty to third
persons to whom or for whom misrepresentations were made when those third persons
actually and justifiably relied on auditors’ mistaken reporting.12
Contrasting the role of architects with that
of auditors, the Beacon Residential court reasoned that a duty should be imposed on archi-
tects because 1) the architects’ primary role in
the design of the project bears a “close connection” to the injury suffered by the homeowners, 2) the imposition would not render the
architects liable for an indeterminate amount
of time to an indeterminate number of persons
as the construction of the project was intended
to affect the limited number of people who
would own and ultimately occupy the completed residences, and 3) the typical homebuyer relies on the expertise of the design
professionals involved in the design and construction and does not have the expertise or
independent ability to discern defects in the
professionals’ work.13 In short, the court determined that the alleged negligent design bore a
close connection to the injury suffered, that it
was foreseeable that the home purchasers
would be the ones to suffer that injury, and that
holding design professionals liable would more
efficiently protect homeowners from design
defects and their resulting harms.14
Limitation of Weseloh
In finding a duty of care to future condominium owners, the supreme court distinguished Weseloh Family Ltd. Partnership v.
K.L. Wessel Construction Company, Inc.,15
often relied upon for the proposition that a
design professional does not owe a duty of care
to a third-party property owner that did not
hire the design professional. In Weseloh, a
property owner hired a general contractor to
construct an automobile dealership. The general contractor then hired a subcontractor to
build retaining walls, and the retaining wall
subcontractor in turn hired design engineers to
perform consulting work concerning the walls
and to supervise the wall design work of the
project design engineers. The retaining wall
design engineers did not have a contract with
the property owner for construction or design
work and did not have a role in the construction, although they did inspect the walls after
they were constructed. When the retaining
walls failed, the property owner sued the general contractor, the subcontractor, and the
design engineers.16 The trial court considered
the Biakanja and Bily factors and awarded
judgment for the wall design engineers, holding that they did not owe a duty of care to the
property owner.17 The court of appeal affirmed.
In evaluating the Biakanja factors, the
court of appeal in Weseloh held that 1) the
wall subcontractor rather than the property
owner was intended to be the beneficiary of
the wall engineers’ work, 2) though the resulting damage was foreseeable, this factor alone
was not enough to impose liability, 3) the
injury was not closely connected to the work
of the wall engineers, which was limited to
providing professional advice and opinion
but did not extend to participation or supervision of construction, 4) moral blame should
not be assigned to the wall engineers, and 5)
expanded liability would not result in greater
care in design engineering.18 In evaluating
the Bily factors, the court of appeal held 1) that
liability would be out of proportion to the wall
engineers’ fault (the alleged damages were $6
million, while the engineers were paid only
$2,200 for their services), 2) because they
were not involved in the construction of the
walls, the engineers did not have control over
the creation of the walls, and 3) there was no
evidence to support a policy reason for allocating loss to the engineers as compared with
the property owner.19 As a result, the court of
appeal in Weseloh held that the engineers did
not owe a duty of care to the property owner
with which they had no contract.20
The architects in Beacon Residential relied
on Weseloh in arguing that they did not owe
a duty to future property purchasers. The
court rejected this argument and expressly
limited the applicability of Weseloh. The court
explained that Weseloh did not broadly hold
that a design professional who provides only
professional advice and opinions, without
having ultimate decision making authority,
cannot be liable to third parties for negligence. Rather, Weseloh held only that a design
professional’s role can be so minor or subordinate to another professional in the same
discipline as to foreclose liability to third persons.21 Though in the years since the Weseloh
decision was issued, design professionals have
argued for broad application of Weseloh’s
reasoning, the decision itself states that it is limited to the facts before it and should not be
interpreted to create a rule that a design professional can never be liable to a third party
with which it does not have a contract.22
Impact of Beacon Residential
Beacon Residential is a logical extension, and
in some respects an affirmation, of longstanding tort law. However, even after Beacon Residential, there may still be some limitations on
a design professional’s liability to third parties.
Where the line will be drawn is not entirely
clear. A design professional who inspects,
supervises, or monitors construction almost certainly owes a duty to third-party residential
property purchasers, and even a professional
who does nothing more than provide plans
may owe a duty—and face liability—if that
professional is the principal professional for a
project in a certain discipline. As noted by the
California Supreme Court, the application of
the common-law factors it considered “necessarily depends on the circumstances of each
case.”23
The supreme court could have eliminated
any uncertainty, at least in connection with residential construction, but it chose not to do so.
California’s Right to Repair Act (formerly SB
800) provides construction standards applicLos Angeles Lawyer January 2015 11
able to new residential construction with purchase agreements signed on or after January 1,
2003.24 The statutory scheme is intended to
address every component of residential construction,25 and it expressly applies to design
professionals.26 In holding that design professionals were subject to liability to thirdparty residential property purchasers, the court
of appeal in Beacon Residential held the plain
language of the statutory scheme to be dispositive of the issue.27 The supreme court,
however, expressly chose not to decide whether
the Right to Repair Act disposes of the issue,28
allowing room for the argument that whether
a particular design professional’s involvement
in a project rises to a level at which liability
should be imposed must be decided on a caseby-case basis.
In the limited circumstances in which a
design professional is not involved in advising, conducting inspections, supervising, or
revising plans during construction, it may be
possible after Beacon Residential to argue
at trial that the design professional’s involvement with a project was too attenuated for liability to attach. However, because very few
construction defect actions are currently proceeding to trial, the practical effect of Beacon
Residential is much more pronounced. The
ruling provides another source of direct recovery for homeowners by solidifying the right
of property owners to bring claims directly
12 Los Angeles Lawyer January 2015
against design professionals for construction
deficiencies. When the design professional’s
indemnity obligations are not controlled by
contract, the ruling strengthens the ability
of builders, developers, and contractors to
bring claims for equitable indemnity by pointing the finger at design professionals. No
longer will architects or engineers be able to
quickly remove themselves from litigation in
which design defects may be an issue. Instead,
their risk management programs and insurance providers will need to adapt to the reality of protracted litigation and the likely need
to contribute settlement funds to resolve
claims in advance of trial.
Although Beacon Residential concerned
residential construction, the decision and its
reasoning could be extended to other types of
construction in which the property owner
does not have a direct contract with the design
professional. Examples include commercial
properties that are built for sale and distressed
properties that are purchased after construction is substantially or fully completed. Design
professionals involved in the construction of
apartment projects could also find themselves
facing liability to an expanded group of persons, if the project is converted to condominiums and defects are later discovered.
The full implications of the Beacon Residential decision will play out over time, and
design professionals should be prepared for
greater involvement in construction litigation that they may previously have been able
to sidestep.
■
1
Beacon Residential Cmty. Ass’n v. Skidmore, Owings
& Merrill LLP, 59 Cal. 4th 568 (2014).
2 Id. at 572-73.
3 CIV. CODE §§895 et seq.
4 Beacon Residential, 59 Cal. 4th at 581-82.
5 Id. at 583.
6 Biakanja v. Irving, 49 Cal. 2d 647 (1958).
7 Beacon Residential, 59 Cal. 4th at 574.
8 Biakanja, 49 Cal. 2d at 650-51.
9 Beacon Residential, 49 Cal. 4th at 586.
10 Bily v. Arthur Young & Co., 3 Cal. 4th 370 (1992).
11 Beacon Residential, 59 Cal. 4th at 579-80
12 Id. at 580.
13 Id. at 581-85.
14 Id. at 581.
15 Weseloh Family Ltd. P’ship v. K.L. Wessel Constr.
Co., Inc., 125 Cal. App. 4th 152 (2004).
16 Id. at 159-60.
17 Id. at 161.
18 Id. at 167-70.
19 Id. at 170-72.
20 Id. at 172-73.
21 Beacon Residential Cmty. Ass’n v. Skidmore, Owings
& Merrill LLP, 59 Cal. 4th 568, 578 (2014).
22 Weseloh Family Ltd. P’ship, 125 Cal. App. 4th at
173.
23 Beacon Residential, 59 Cal. 4th at 578.
24 CIV. CODE §§895 et seq.
25 CIV. CODE §897.
26 CIV. CODE §936.
27 Beacon Residential Cmty. Ass’n v. Skidmore, Owings
& Merrill LLP, 211 Cal. App. 4th 1301, 1321 (2012).
28 Beacon Residential, 59 Cal. 4th at 578.
practice tips
BY BRIAN KABATECK AND DREW R. FERRANDINI
Determining Premises Liability for the Criminal Acts of Third Parties
ON MAY 23, 2014, ELLIOT RODGER DROVE through the streets of Hospital,8 the California Supreme Court adopted a “totality of the
Isla Vista continuing a deadly rampage that had started earlier that circumstances” approach that made it easier for plaintiffs to hold
night in his apartment.1 Earlier, a shooter opened fire at a child’s birth- landowners liable. The court held that “foreseeability is determined
day party in Sacramento, killing one person and wounding six oth- in light of all the circumstances and not by a rigid application of a
ers.2 Earlier still, a gunman walked into Terminal 3 at Los Angeles mechanical ‘prior similars’ rule.”9 Evidence of prior similar inciInternational Airport and opened fire, killing a Transportation Sec- dents on the landowner’s premises continued to be helpful in deterurity Administration agent.3 Prior to that incident, another gunman mining foreseeability, but Isaacs made clear that this evidence was not
opened fire at Santa Monica College, killing six and injuring four.4 necessary. The proclaimed pro-victim, totality-of-the-circumstances
These crimes are always shocking, and it may be argued that they are approach of Isaacs garnered much debate as it marked a noteworunforeseeable for purposes of establishing civil liability against the thy departure from the traditional prior similar incidents rule.
owner of the property where the incident
occurred. But the ability of institutions to protect against these threats continues to improve.
Landowners should constantly assess what if any dangers
In the case of Rodger, the signs of trouble
were obvious. Rodger had posted a series of
increasingly disturbing videos that were availthird parties could pose to persons on their property.
able to anyone with Internet access. The police
were warned about his behavior and spoke
with him at least three times prior to the shooting. The devastation he caused was shocking and tragic, but it was Property owners had no way of knowing whether they had a duty or
hardly unforeseeable.
what might be required to fulfill that duty.
There are certain circumstances in which a landowner can be held
In 1993, the state Supreme Court found that Isaacs was in need
liable for the criminal actions of a third party. Many factors go into of “refinement” against the backdrop of the “random, violent crime
determining liability, but the court will most often look to the fore- [that] is endemic in today’s society.”10 Because “it is difficult, if not
seeability of the harm and the measures that a landowner could impossible, to envision any locale open to the public where the
have taken to prevent the harm. It may be impossible to predict the occurrence of violent crime seems improbable,” the court felt comexact circumstances of any particular crime, but that does not mean pelled to revisit Isaacs.11
that public institutions and businesses can be permitted to fail to take
In Ann M. v. Pacific Plaza Shopping Center, plaintiff Ann M. was
certain basic steps to protect the public.
raped at knifepoint while working alone at a secluded shop in the
Historically, landowners did not face tort liability for third-party Pacific Plaza Shopping Center.12 The shopping center was in an area
criminal attacks on their premises—despite the duty to protect where violent crimes had occurred, and transients frequently loipatrons from unreasonable risks of harm. But over time, as crime rates tered in its common areas. While no rapes had occurred at the shopincreased, so too did courts’ willingness to recognize exceptions to ping center, there had been purse snatchings, bank robberies, and at
the judicially created no-duty rule. Section 344 of the Restatement least one assault.13 Pacific Plaza’s owner was unaware of these crimes
(Second) of Torts provides that a landowner has a duty to protect and did not provide security patrols.14
patrons from foreseeable third-party criminal attacks; however,
Ann M. filed a negligence suit, alleging that Pacific Plaza breached
courts have disagreed as to the meaning of “foreseeability.”
its legal duty to protect her from an unreasonable risk of harm by not
Some courts have defined foreseeability narrowly—imposing a duty providing adequate security.15 Although no evidence of prior rapes
only when the landowner knew or had reason to know that a third- was presented, Ann M. argued that the presence of the transients on
party criminal act was imminent.5 These courts held that prior crim- the premises gave rise to a foreseeable risk of such a crime.16
inal incidents were insufficient notice.6
The trial court granted Pacific Plaza’s motion for summary judgThe shift away from the no-duty rule led many other courts to define ment, finding that the Pacific Plaza did not owe Ann M. a duty of care.17
foreseeability broadly. The prior-similar-incidents rule, which emerged The appellate court affirmed summary judgment but disagreed with
as the majority position in numerous jurisdictions, imposes a duty on the trial court as to whether Pacific Plaza owed Ann M. a duty of care.18
landowners to provide protection from criminal attack when prior inci- Indeed, the appellate court specifically found that Pacific Plaza had a
dents of a similar violent nature have occurred on the landowner’s prop- duty to protect Ann M. from third-party criminal attacks. But the court
erty.7 On the other hand, some courts look to other, additional factors to determine the foreseeability of third-party criminal attacks.
Brian Kabateck is a consumer rights attorney and founder of Kabateck Brown
In 1985, while California joined some of the jurisdictions following Kellner LLP in Los Angeles. Drew R. Ferrandini is an attorney currently practhe prior-similar-incidents rule in Isaacs v. Huntington Memorial ticing in San Diego.
Los Angeles Lawyer January 2015 13
ultimately held that no reasonable jury could
have found that the mall’s failure to provide
security patrols breached that duty.
Ann M. appealed the lower courts’ decisions to the California Supreme Court. The
supreme court held that because Pacific Plaza
did not have knowledge of prior, similar violent crimes on its premises, Ann M. could
not prove that a third-party criminal attack
was sufficiently foreseeable to impose a duty
on Pacific Plaza to provide security.19
In refining the totality-of-the-circumstances
approach, the court placed greater weight
on the requirement that “the scope of the
duty is determined in part by balancing the
foreseeability of the harm against the burden
of the duty to be imposed.”20 The court dis-
14 Los Angeles Lawyer January 2015
cussed the economic and social costs of imposing a duty to hire security guards and held that
such a burden would be justified only in the
event that there had been prior similar incidents of violent crime.21 This, the court reasoned, would provide the essential “high
degree of foreseeability.”22
Although Ann M. diplomatically avers that
it refined Isaacs, it in fact undercuts the totality-of-the-circumstances precepts of Isaacs,
creating a middle-of-the-road approach to
premises liability that embraces neither the
totality-of-the-circumstances rule nor the
strict prior similar incidents test.
Subsequently, the California Supreme Court
decided Sharon P. v. Arman, Ltd.23 The court
declined to impose a duty on the landlord to
provide security guards in an underground
commercial parking garage because the plaintiff’s sexual assault was not foreseeable.24 Although there was evidence of multiple non-violent bank robberies on the first floor, several
hundred crimes (including two rapes) in the
general neighborhood, and vagrants sleeping
and urinating in or around the garage prior to
the assault, the court found that there was
not enough evidence that a reasonable person
could foresee the type of assault that occurred.25 Ostensibly, the court did not demand
that prior incidents be identical but held that
the plaintiff did not establish the high degree
of foreseeability necessary to justify the “significant burden” of imposing a duty to provide
security guards in the garage.26
Neither Ann M. nor Sharon P. required
identical prior act proof to warrant finding a
duty to protect. Rather, the major issues were
whether the prior crimes sufficiently closely
resembled the criminal activity generating the
claimed injury.
The nature and scope of business landowners’ duty to protect their customers
became even more convoluted in Delgado v.
Trax Bar & Grill.27 Michael Delgado and his
wife went to Trax Bar and Grill in the evening,
attracting the attentions of Jacob Joseph and
his three friends.28 As tensions rose, the bar’s
bouncer asked Delgado to leave, figuring it an
easier request that a single couple leave rather
than a group.29 After Delgado left with his
wife, Joseph followed, signaling 12 to 15 of
his gang buddies.30 Joseph and his friends
chased down and brutally beat Delgado, who
spent 16 days in the hospital.31
Delgado brought a negligence suit against
the bar on theories of premises liability. On
appeal, Delgado asserted that Trax owed him
a duty of care “because of the special relationship created by the hiring of security
guards,” and because his wife gave Trax notice
of the “potential problem prior to its occurrence.”32 Trax argued that because there was
no evidence of prior, similar criminal assaults
either at the bar or in the vicinity, Delgado’s
assault was unforeseeable as a matter of law.33
Accordingly, Trax argued it owed no duty to
provide security and could not be found liable
for Delgado’s injuries.
The court rejected the argument that a
showing of heightened foreseeability is required
to impose liability upon a business landowner
for the criminal conduct of a third party.34
Rather, the court expressly reaffirmed the
“sliding scale balancing formula” approach,
which it said it had been using all along.
The court ultimately concluded that,
while Delgado failed to establish sufficient
prior similar incidents as evidence to invoke
the heightened foreseeability requirement
of hiring more security guards, the bar did
have a duty to prevent unreasonable risk
of harm to Delgado by “minimally burdensome measures.”35
More recently, the court has attempted to
clarify some of the confusion that these rulings were creating in the lower courts. In
Castaneda v. Olsher, the California Supreme
Court addressed whether the owners of a
mobile home park could be held liable for a
gang-related shooting.36 The plaintiff was
standing outside his mobile home when a
stray bullet from a gang shootout hit him in
the back.37 Prior to the shooting, there were
numerous reports of gang activity, including
reports of drug sales, and two shootings.38
The defendants had rented a space next to the
one where the plaintiff resided to a man with
gang affiliations.
The plaintiff’s argument to establish a duty
for the defendants was threefold: 1) the defendants had the duty not to rent units to gang
members, 2) the defendants had a duty to
remove tenants once the problem because
apparent, and 3) the defendants should have
had security guards and additional lighting
on the premises.39
The court clarified the analytical framework for evaluating these arguments. First,
the court must identify the specific measures
that the plaintiff believes would have prevented that harm.40 This step frames the issue
for the court. Second, the court will consider
how burdensome the proposed measures
would be for the defendant to implement. In
the third step the court:
[M]ust identify the nature of the third
party conduct that the plaintiff claims
could have been prevented had the landlord taken the proposed measures, and
assess how foreseeable (on a continuum
from a mere possibility to a reasonable
probability) it was that this conduct
would occur. Once the burden and foreseeability have been independently
assessed, they can be compared in determining the scope of the duty the court
imposes on a given defendant. The more
certain the likelihood of harm, the
higher the burden a court will impose
on a landlord to prevent it; the less
foreseeable the harm, the lower the burden a court will place on a landlord.41
Applying this standard, the court found
that it would be too burdensome to require
a landlord not to rent units to suspected gang
members.42 Such a requirement would essentially force a landlord to make relatively uninformed judgments about tenants that could
expose the landlord to discrimination suits.43
The court also held that the plaintiff’s claims
failed because the record showed insufficient
evidence that security guards or lighting
would have prevented the shooting.
The California Supreme Court’s decisions
have mostly involved private businesses.
However, these same principles also apply
to public institutions like schools. Indeed,
school districts often face the additional concern of having some actual or constructive
knowledge of problem students. Schools also
have a pre-existing duty to supervise their students. In particular, school districts need to
pay close attention to their policies when it
comes to supervising potentially dangerous
students. California courts have found school
districts civilly liable for criminal acts perpetrated on their campuses.
In M.W. v. Panama Buena Vista Union
School District, a mentally disabled student
was violently sexually assaulted in a school
bathroom by an upperclassman.44 The standard of care for schools in California is different than that for other institutions. The
court held that it was well established that
“[i]t is the duty of the school authorities to
supervise at all times the conduct of the children on the school grounds and to enforce
those rules and regulations necessary to their
protection.”45 The school did not have any
security on campus at the time the minor
plaintiff was assaulted, which the court found
constituted a breach of their duty to protect
students.46 The school district attempted to
argue that this incident was not foreseeable as
it had no knowledge that this type of assault
would occur. However, there was evidence
presented that the assailant had a long history
of disciplinary issues at the school, and while
none of the incidents involved a sexual assault,
the court found “no distinction between a
physical assault and a sexual assault for purposes of foreseeability in this case.”47 Thus,
the foreseeability was not so narrowly constrained to the exact incident, but rather to the
type of harm—in this case, an assault on a student.48 The court held that plaintiff could
recover against the school district under these
circumstances.
California law gives landowners and litigants a number of factors to consider both
post- and prelitigation. Landowners should
constantly assess what if any dangers third
parties could pose to persons on their property. Then, landowners should determine
whether any measures can be taken to prevent
or mitigate these dangers. Most of the time
minimally burdensome measures will satisfy
their duty. Additionally, ignorance of a potential danger will not constitute a valid defense
if the landowner should have known about
the danger. Therefore, landowners should be
proactive in seeking information about potentially problematic tenants or students.
Similar factors have been applied in other
high-profile crimes, and in certain circumstances liability has been found for unexpected
acts of criminal violence. For example, after the
Columbine tragedy, victims of the shooting
were able to recover more than $2.5 million
against the shooters’ parents.49 The majority
of the settlement came from the homeowner’s
insurance of the shooters’ parents. There was
no evidence that the parents knew about what
their sons had planned that day. However, the
fact that their sons’ behavior went unnoticed
under their roof was enough to impute some
knowledge. Likewise with the Virginia Tech
shooting, the school had some knowledge of
Seung Hui Cho’s disturbing behavior prior to
the incident. But more important, the school
had actual knowledge that a gunman was on
campus before the main attack occurred.50
Subsequent investigations also revealed that
there were no appropriate security procedures
in place to reasonably protect students and that
university officials locked down their own
building while deciding their next course of
action but “failed to issue an all-campus noitification” for nearly two hours.51 As a result of
the shooting a Virginia circuit court approved
an $11 million settlement for wrongful death
claims. Two families refused to settle, and in
2012 a jury awarded $4 million to each of the
families. However, due to a cap on damages
that can be awarded when suing the state, the
verdict was appealed and reduced to $100,000
for each family.52
For a plaintiff to assert a claim, the plaintiff must be able to articulate a clear, minimally burdensome measure that would have
prevented the crime. This crucial step frames the
entire judicial analysis. Simply arguing that a
business should have additional security guards
rarely seems to persuade courts. But steps such
as keeping locks and doors in working order
can get a case past a motion for summary judgment.53 Additionally, any evidence that a defendant had actual or constructive knowledge of
a danger will go a long way to establishing a
duty. If some or all of these factors are present,
a business or institution may face civil liability
for the crimes of a third party. This is not to suggest that businesses are required to essentially
insure victims for the crimes of a madman,
but they need to have policies and procedures
in place that plan for the possibility.
■
1 Jennifer Preston, Gunman Made Threats in 141Page Manifesto and YouTube Videos, N.Y. TIMES
(May 24, 2014), http://news.blogs.nytimes.com.
2 Vanessa Ochavilla, 2 arrested in Natomas birthday
party shooting, SACRAMENTO BEE (Aug. 19, 2014).
3 Nancy Dillon et al., LAX shooting spree: TSA worker
dead after assault-type rifle rampage inside Los Angeles
International Airport Terminal 3, N.Y. DAILY NEWS
(Nov. 1, 2013), http://www.nydailynews.com.
4 Richard A. Serrano et al., Santa Monica shooting suspect, possible motive identified, officials say, L.A.
TIMES (June 08, 2013), http://articles.latimes.com.
5 See Posecai v. Wal-Mart Stores, Inc., 752 So. 2d
762, 766-67 (La. 1999).
6 See, e.g., McClurg v. Delta Square Ltd. P’ship, 937
S.W. 2d 891, 895 (Tenn. 1975).
7 See Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 251
Continued on page 35.
Los Angeles Lawyer January 2015 15
by TINA SHIM
OUTSIDE
E
H
T X
O
B
CEQA concerns notwithstanding, Public Utilities
Code Section 7901 provides telecommunication
companies with a right to install utility boxes
16 Los Angeles Lawyer January 2015
sented a memorandum of understanding to the city in which the company agreed to further actions, including providing notice to neighbors and conduct community meetings for each cabinet site, maintaining a public Web site about the project, placing cabinets in less
conspicuous locations when possible, and reimbursing the city for
the cost of graffiti removal. The city’s board of supervisors upheld
the planning department’s determination that the project was categorically exempt. San Francisco Beautiful, a nonprofit advocacy
group, and a few neighborhood associations then sought a writ of
mandate to set aside the city’s decision until an environmental
impact report (EIR) could be prepared and mitigation measures
could be adopted. The trial court denied the petition, and the court
of appeal affirmed that decision in San Francisco Beautiful v. City
and County of San Francisco.4 The case is instructive on the categorical exception to CEQA regulation.
Tina Shim is a deputy city attorney with the Los Angeles City Attorney’s
office who is currently staffed at the Los Angeles Department of Water and
Power.
KEN CORRAL
UTILITY BOXES, typically about four feet tall and painted gray, are
needed to operate and maintain telephone service. In 2007, AT&T
proposed installing 850 utility boxes across the city and county of San
Francisco to support its project to upgrade broadband speed and
expand its fiber optic network. AT&T applied to San Francisco for a
categorical exemption for review of this project under California
Environmental Quality Act (CEQA).1 Although the city planning
department decided the project was exempt, AT&T withdrew its application in response to a public protest at a hearing of the city and county’s board of supervisors.2
In 2010, AT&T revised the project and submitted a new application
to the city for the same categorical exemption. AT&T reduced the
number of boxes to 726, limited their size, increased the distance
between new and existing cabinets to provide flexibility in their location, eliminated adding new facilities within historic districts, and
promised to affix a 24-hour-a-day contact number for reporting
graffiti directly to AT&T.3 The city planning department again determined that the project was categorically exempt, and two organizations appealed the decision to the board of supervisors. AT&T pre-
Depending on the nature and level of a
project’s environmental impact, a public
agency is mandated by CEQA to undertake
a one-to-three-tier impact analysis. Under
the first level of analysis, a public agency
must make a preliminary review to determine
if an activity is a project subject to CEQA.5
A “project” is defined as the whole of an
action and includes any action that has a
potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in
the environment.6 If the proposed project
fails to meet these criteria, no further CEQA
analysis is needed.7 If the project may create
a direct or indirect physical change in the
environment, the public agency must evaluate if the project is exempt from CEQA. A
project is exempt if the legislature has concluded it may not have a significant effect on
the environment.8 If a project falls within an
exemption, then a public agency does not
generally need to proceed with any further
environmental review.9 Finally, if an agency
finds there is substantial evidence that some
aspect of a project may have a significant
effect on the environment, then the third
tier of CEQA’s analysis becomes operative.10
This requires the agency to prepare an EIR,11
which the San Francisco Beautiful plaintiffs
were seeking. An EIR is intended to inform
decision makers and the public of the potential environmental impacts of a project as well
as identify feasible alternatives to the project
and mitigation measures to avoid any negative environmental impacts.12
AT&T’s plan to install new utility boxes
was submitted to the city as a potential project under CEQA, so the CEQA analysis focused on whether the second or third tiers of
this analysis applied. AT&T argued that the
analysis stopped at the second level because
the utility was entitled to a categorical exemption under 15303(d) of the state CEQA guidelines, known as the Class 3 exemption.13 This
exemption removes projects involving the
“construction and location of limited numbers
of new small facilities or structures; [and]
installation of small new equipment and facilities in small structures” from further CEQA
analysis.14 The plaintiffs contended that certain exceptions to this exemption applied
because of its environmental impacts, thereby
requiring to prepare an EIR. The city agreed
with AT&T that its project qualified for the
Class 3 exemption and no further CEQA review was required.15 Once the city made this
determination by filing a notice of exemption,16 no authority existed to mandate that
AT&T prepare and submit an EIR.
The plaintiffs, on the other hand, argued
that even if the Class 3 exemption applied, the
project would have significant environmental
impacts and qualified for an exception within
that exemption; therefore, the city was required
to prepare an EIR. CEQA provides an exception to the application of categorical exemptions “where there is a reasonable possibility
Utility Boxes as Public Art
In Los Angeles and other California cities, street art projects now include painting utility boxes.1
As noted in San Francisco Beautiful v. City and County of San Francisco, San Francisco
properly governed the minimization of the negative visual impacts of new utility boxes with
its Public Works Order and Better Streets Plan, even though the plaintiff’s aesthetic concerns did not rise to the level of a significant impact.2 In Los Angeles, the counterpart to San
Francisco’s plan3 is found in Section 22.119 of the Administrative Code, titled Original Art
Murals on Private Property.4 The content-neutral language of the ordinance indicates intent
to adhere to the limits of the city’s police powers.
In Los Angeles, large-scale public art has been a part of the landscape since as early as
1932, which saw the creation of murals on historic Olvera Street. Los Angeles’s temporary
2002 ban on public murals was lifted by the Los Angeles City Council last August.5 The murals
have been slow to return, but on January 22, 2014, art on six new utility boxes was unveiled
in Downtown’s Historic Core around the intersections of Winston, Main, and Los Angeles
Streets. Nine utility box art installations will follow along the 1st Street Arts Corridor in Boyle
Heights. In addition, 118 Winston, a local art gallery and yoga studio, has been coordinating a series of murals on utility boxes in and around Werdin Place in Downtown’s Skid Row—
known as Indian Alley—to celebrate the Native American history of the site.6—T.S.
1 See, e.g., http://www.kcet.org/socal/departures/columns/writing-on-the-wall/painted-utility-boxes-move
-west-to-downtowns-indian-alley.html; http://www.ocregister.com/articles/city-351708-utility-art.html.
2 San Francisco Beautiful v. City and County of San Francisco, 226 Cal. App. 4th 1012, 1031 (2014).
3 Id. at 1032.
4 See L.A., CAL., ADMIN. CODE §22.119; L.A., CAL., ORD. No. 182,706.
5 See Eric Bjorgum, Los Angeles Gets a New Mural Ordinance, LOS ANGELES LAWYER, Jan. 2014, at 36.
6 See http://www.neontommy.com/news/2014/05/downtown-artists-paint-change-skid-row.
18 Los Angeles Lawyer January 2015
the activity will have a significant environmental effect ‘due to unusual circumstances.’”17
To determine if this “unusual circumstances”
exception applied, the appellate court in San
Francisco Beautiful conducted two distinct
inquiries set forth in CEQA guidelines Section
15300.2(c). First, the court conducted an
analysis as to whether the project presented
unusual circumstances, and second, if there
was “a reasonable possibility of a significant
effect on the environment due to the unusual
circumstances.”18
As to the former, the court found that the
Class 3 exemption applied to a limited number of new utility structures that were small
and in public rights-of-way. According to the
court, the plaintiffs failed to present evidence
showing how AT&T’s utility boxes would
create unusual impacts.19 The court was particularly persuaded by the fact that San
Francisco is an urban landscape in which,
among other things, “13,000 MUNI-maintained poles, 132 cabinets to support MUNI
operations, 5,800 signalized intersections, 25
automatic toilets…5,151 trolley poles, [and]
21,891 street lights” exist in the public rightsof-way.20 The court found that the plaintiffs
had no basis for arguing that the AT&T boxes
would attract graffiti, public urination, impede
pedestrians, or block drivers at a level greater
than that which existed with the 47,000 similar structures on San Francisco’s streets.21
And while the new structures might be
unsightly, they would create only a slight
incremental visual effect. In sum, any negative
impact was minimal at best because of San
Francisco’s urban environment.22
The plaintiffs also contended that given the
cumulative impacts of the AT&T project,
this exception to the Class 3 exemption under
CEQA was equally applicable.23 The court
rejected this argument and found that the
plaintiffs failed to present evidence showing
that the utility boxes would create significant cumulative impacts.24 The plaintiffs also
asserted that the gray boxes would have significant aesthetic impacts that were within the
city’s purview to regulate under the decisions
in Pocket Protectors v. City of Sacramento
and Ocean View Estates Homeowners Association, Inc. v. Montecito Water District.25 The
court distinguished these cases because they
involved a clear change to the existing environment whereas the utility boxes being challenged in San Francisco Beautiful would not
degrade the existing visual character of the
urban environment into which they were
going to be placed.
Further, the plaintiffs claimed the project’s impacts were inconsistent with the city’s
Public Works Order and Better Streets Plan.26
The court dismissed this argument because it
found that the city contemplated the installation of utility boxes when it adopted those
plans.27 In fact, the court fully expected that
AT&T would ensure that its boxes complied
with the aesthetic and placement requirements of the plans.28 Finally, the court held
that the city had not improperly relied on
AT&T’s changes to the project as mitigation
measures, and that AT&T’s memorandum
of understanding had not been the basis for
the city’s CEQA determination.29
Telegraph Poles
By concluding the city had very limited authority to regulate AT&T’s utility boxes, the court
in San Francisco Beautiful avoided creating a
conflict between CEQA and California’s longstanding regulation of public utilities like
AT&T. The discretion that AT&T retained to
decide where its utility boxes would be located
owes its existence to laws first enacted in the
mid-1800s granting telegraph companies the
right to construct poles and lines along any
public road or highway, provided this did not
incommode the public.30 In 1850, when the
California Legislature first convened, the precursor to Public Utilities Code Section 7901
was enacted with the heading of Act concerning Corporations.31 The legislature recognized that telegraph operations, the new
communications technology of its time,
required a uniform statewide regulatory structure, not a hodgepodge of local government
laws.32 Under the act, local governments were
stripped of authority over telegraph companies, which were permitted to “associate for
the purpose of constructing a line or lines of
wires of telegraph through this State, or from
and to any point within this State,” as well as
to “construct lines of telegraph along and
upon any of the public roads and highways.”33
Years later, the legislature extended these
rights to telephone companies.34 To this day,
Section 7901 gives telecommunication companies the right to install devices in the public rights-of-way. Local governments are barred
from acting contrary to state law except in limited circumstances.35
This view of the statute is supported by the
Ninth Circuit decision Sprint PCS Assets,
L.L.C. v. City of La Canada Flintridge, in
which the court examined the preemption of
city ordinances under Section 7901. The court
affirmed the city’s limited right to regulate
access to public rights-of-way and negated
the city’s attempt to prevent construction.36
The court quoted the California Supreme
Court’s description of the effect of Civil Code
Section 536 (the predecessor to Public Utilities
Code Section 7901) on local regulations: “The
right and obligation to construct and maintain
telephone lines has become a matter of state
concern. For this reason, a city cannot today
exclude telephone lines from the streets upon
the theory that ‘it is a municipal affair.’”37
The franchise relationship between utili-
ties and the state is an equally important
consideration in understanding the relatively
protective legal status of utility boxes. 38
Courts have consistently held that Section
7901 constitutes an offer by the state to grant
a franchise for construction and maintenance
of telecommunications equipment much like
the legislature did in 1850 when it extended
a similar offer to telegraph corporations.39
This offer was presented to ensure that California residents had access to statewide communication services.40 Once a corporation
built and operated facilities in the right-ofway, the state’s offer was deemed accepted.41
Today, the laws that were originally created
for telegraph companies have been extended
to wireless communications and fiber optic
cable by Public Utilities Code Sections 234(a)
and 233, which allow Section 7901 to apply
to any telephone corporation that provides
wireless or landline services.42
Generally, a local government’s power to
regulate its streets is derived from its police
power.43 In the context of utility boxes, however, the grant of a franchise to a telecommunications company does not arise from a
local government’s police power but rather
from the state.44 Therefore, a local government
has no authority to refuse the construction of
these boxes,45 nor may it adopt an ordinance
barring construction of utility boxes based
on aesthetic grounds.46 This limitation on
ordinances governing utility boxes is acknowledged in San Francisco Beautiful. The city’s
Public Works Order and Better Streets Plan did
not authorize outright refusal of construction installed on the public rights-of-way and
only imposed requirements related to the loca-
tion and design of the structures. These
requirements were intended solely to minimize
the negative effects on pedestrian and driver
safety and on aesthetics. In other words, cities
may govern only the way in which the public roads are accessed to construct these boxes
but not whether the road actually is accessed.47
This limited authority is described in Public
Utilities Code Section 7901.1: “It is the intent
of the Legislature, consistent with Section
7901, that municipalities shall have the right
to exercise reasonable control as to the time,
place, and manner in which roads, highways,
and waterways are accessed.”48
Rather than debate whether state law preempts that of a local government, the court
in San Francisco Beautiful stated that there
was no reason to think that AT&T would not
comply with the city’s Public Works Order
and Better Streets Plan.49 The court was able
to accomplish this because for new construction that falls within Section 7901, a
local government has little or no authority to
prevent construction. One conclusion that
may be drawn from San Francisco Beautiful
is that it is difficult to show significant adverse
aesthetic impacts for new construction in a
highly urbanized setting. San Francisco
Beautiful may also be said to stand for the
proposition that it is futile to argue that adding small structures that are consistent with
local municipal zoning laws may have a significant adverse aesthetic impact.
San Francisco Beautiful offers guidance for
attorneys advising municipalities and public
agencies about state regulation of telecommunication companies. Regardless of whether
the city’s planning department or its board of
Los Angeles Lawyer January 2015 19
supervisors had reached a contrary decision
and upheld the request of San Francisco
Beautiful for the preparation of an EIR,
AT&T retained the right to install its metal
utility boxes under state law. There was little the city could have done beyond some
nominal regulation of the aesthetics of those
gray utility boxes. While the case may be
distinguished by its urban setting, a similar
case arising in a rural setting that involved
a public right of way would implicate the
same rights under Section 7901. Lastly, a
city’s effort to regulate the aesthetics of utility boxes is relevant but probably not dispositive in analyzing whether significant negative aesthetic impacts may occur.
■
1 PUB.
RES. CODE §§21000 et seq.
San Francisco Beautiful v. City and County of San
Francisco, 226 Cal. App. 4th 1012, 1018 (2014).
3 Id.
4 Id.
5 CAL. CODE REGS. tit. 14, §15060; PUB. RES. CODE
§21065.
6 CAL. CODE REGS. tit. 14, §15378 (CEQA’s definition
of a project includes public works constructions, improvements to existing public structures, enactment of zoning ordinances, adoption of general plans, activities supported by public agency monies, and even activities
issuing leases, permits, and licenses.).
7 PUB. RES. CODE §21065; CEQA Guidelines §15378,
§15060(c)(3).
8 Muzzy Ranch Co. v. Solano County Airport Land Use
2
20 Los Angeles Lawyer January 2015
Comm’n, 41 Cal. 4th 372, 380 (2007).
Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 74
(1974); CAL. CODE REGS. tit. 14, §§15061(d), 15062(a).
10 Id.; CAL. CODE REGS. tit. 14, §15063(a).
11 PUB. RES. CODE §§21100(a), 21151(a).
12 PUB. RES. CODE §21002.1(a).
13 CAL. CODE REGS. tit. 14, §§15000 et seq.; see, e.g.,
Arthur F. Coon, San Francisco Beautiful CEQA Decision
Interpreting Class 3 Categorical Exemption For Installation of Small Structures Is Ordered Published By First
District (June 2nd, 2014), http://www.ceqadevelopments
.com/2014/06/02/san-francisco-beautiful-ceqa-decision
-interpreting-class-3-categorical-exemption-for-installation
-of-small-structures-is-ordered-published-by-first-district.
14 CAL. CODE REGS. tit. 14 §15303.
15 San Francisco Beautiful v. City and County of San
Francisco, 226 Cal. App. 4th 1012 (2014).
16 Id. at 1019.
17 CAL. CODE REGS. tit. 14, §15300.2(c).
18 San Francisco Beautiful, 226 Cal. App. 4th at 1024.
19 Id. at 1025.
20 Id.
21 Id.
22 Id. at 1027-28.
23 Id. at 1030; CAL. CODE REGS. tit. 14, §15300.2(b).
24 San Francisco Beautiful, 226 Cal. App. 4th at 1031.
25 See Pocket Protectors v. City of Sacramento, 124 Cal.
App. 4th 903 (2004); Ocean View Estates Homeowners
Ass’n, Inc. v. Montecito Water Dist., 116 Cal. App. 4th
396 (2004).
26 San Francisco Beautiful, 226 Cal. App. 4th at 1031.
27 Id. at 1032.
28 Id. at 1030-32.
29 Id. at 1033.
30 PUB. UTIL. CODE §7901, former 1850 Cal. Stat. ch.
128 §150 p. 369.
9 No
31 Michael W. Shonafelt, Whose Streets? California
Public Utilities Code Section 7901 in the Wireless Age,
35 HASTINGS COMM. & ENT. L. J. 371 (2013) [hereinafter Shonafelt].
32 1850 Cal. Stat. ch. 128 §150 p. 370; Pacific Tel. &
Tel. Co. v. San Francisco, 197 Cal. App. 2d 133 (1961).
33 1850 Cal. Stat. ch. 128 §150 p. 370; Shonafelt,
supra note 31.
34 Shonafelt, supra note 31.
35 Oro Elec. Corp. v. Railroad Comm’n of Cal., 169
Cal. 466 (1915); Pacific Tel. & Tel. Co., 197 Cal.
App. 2d 133.
36 Sprint PCS Assets, L.L.C. v. City of La Canada
Flintridge, 182 Fed. Appx. 688 (2006).
37 Id. at 689.
38 Cox Commc’ns PCS, L.P. v. City of San Marcos, 204
F. Supp. 2d 1272 (2002) (Public Utilities Code §7901
constituted a contractual offer by the states, acceptance
of which took place when the corporation built and
operated facilities in the rights of way.).
39 Pacific Tel. & Tel. Co. v. Redevelopment Agency, 75
Cal. App. 3d 957 (1977).
40 Pacific Tel. & Tel. Co. v. San Francisco, 51 Cal. 2d
766 (1959).
41 Cox Commc’ns PCS, 204 F. Supp. 2d at 1272.
42 Id.
43 Pacific Tel. & Tel. Co. v. San Francisco, 51 Cal. 2d
766 (1959).
44 Id. at 771.
45 Sprint PCS Assets, L.L.C. v. City of La Canada
Flintridge, 182 Fed. Appx. 688 (2006).
46 Id. at 692.
47 Id. at 691.
48 PUB. UTIL. CODE §7901.1(a).
49 San Francisco Beautiful v. City and County of San
Francisco, 226 Cal. App. 4th 1012, 1032 (2014).
MCLE ARTICLE AND SELF-ASSESSMENT TEST
By reading this article and answering the accompanying test questions, you can earn one MCLE credit.
To apply for credit, please follow the instructions on the test answer sheet on page 23.
by Robert Odson and Staci Tomita
Boilerplate
Common provisions in commercial
Breakdown
real property contracts may be unenforceable, partially enforceable,
or not enforceable according to their literal meaning
VIRTUALLY EVERY commercial real property contract contains
pages of boilerplate provisions with language that seeks to narrow the
scope of any subsequent dispute, limit liability, and dictate the manner in which disputes are adjudicated. The virtual ubiquity of these provisions indicates that they are relied upon, but do they work? Stated
differently, are the provisions enforced in accordance with their literal
meaning? In some cases, common boilerplate provisions in commercial real property contracts are absolutely unenforceable, enforced in
certain contexts, or not enforced in accordance with their literal
meaning.
For example, commercial real estate contracts often contain provisions in which the parties agree that the purchaser or tenant is taking the property “as-is” and disclaim any representations made outside of the written language in the contract. Boilerplate integration
provisions typically state that the contract contains the complete
agreement between the parties. Although as-is and integration provisions literally preclude claims based upon alleged promises outside
the contract, their enforcement falls short of their literal meaning.
In an as-is sale of property, the use of the term “as-is” relieves a
seller of real property from liability for observable defects in the prop-
erty’s existing condition. In an as-is sale, no warranties of quality or
condition are implied in the sale of the property. However, an as-is
provision will not shield the seller from all claims concerning the condition of the property. When a seller intentionally conceals, through
fraud or misrepresentation, material defects not otherwise visible or
observable to the buyer, the as-is provision will not shield a seller from
a buyer’s claims.1
Nor is an integration clause always effective in accordance with
its literal meaning. The clause seeks to bar introduction of parol evidence, which is evidence of prior or contemporaneous oral communications introduced to alter the meaning of written contracts. An integration clause is governed by Section 1856 of the Code of Civil
Procedure, which states: “Terms set forth in a writing intended by the
parties as a final expression of their agreement with respect to the terms
included therein may not be contradicted by evidence of a prior
agreement or of a contemporaneous oral agreement.”
Robert Odson is a founding partner and Staci Tomita is an associate of
Shumener, Odson & Oh LLP, a boutique law firm in Los Angeles litigating commercial disputes with a focus on real estate and finance.
Los Angeles Lawyer January 2015 21
Integration clauses are generally enforceable and can be effective to bar introduction
of evidence of alleged promises that are contrary to the clear and express terms of the contract. However, parol evidence may be introduced to interpret the contract when it is
ambiguous. Thus, even in the face of an integration clause, a court can, and likely will,
hear evidence of prior or contemporaneous
oral communications in adjudicating a dispute
concerning a real estate contract.2
Moreover, integration clauses have, at
most, a limited application to fraud claims.
It has been the law for years that a “party may
not contract away liability for fraudulent or
intentional acts or for negligent violations
of statutory law.”3 Section 1668 of the Civil
Code states: “All contracts which have for
their object, directly or indirectly, to exempt
any one from responsibility for his own fraud,
or willful injury to the person or property of
another, or violation of law, whether willful
or negligent, are against the policy of the
law.” In general, an integration provision
will not bar claims of fraud in the inducement
of a real property contract. As explained in
Manderville v. PCG & S Group, Inc., a “party
to a contract who has been guilty of fraud in
its inducement cannot absolve himself or herself from the effects of his or her fraud by any
stipulation in the contract, either that no representations have been made, or that any
right that might be grounded upon them is
waived. Such a stipulation or waiver will be
ignored, and parol evidence of misrepresentations will be admitted, for the reason that
fraud renders the whole agreement voidable,
including the waiver provision.”4
While prior law essentially allowed parties to contract around fraud committed prior
to the execution of an integrated contract by
refusing to admit parol evidence contrary to
the contract,5 the California Supreme Court
in Riverisland Cold Storage, Inc. v. FresnoMadera Production Credit Association held
that the parol evidence rule does not bar evidence of fraudulent promises that contradict
the terms of an integrated writing.6 The
Riverisland court relied upon Section 1856(f)
of the Code of Civil Procedure to rule that “it
was never intended that the parol evidence
rule should be used as a shield to prevent the
proof of fraud.”7
Riverisland has been applied to real estate
contracts, such as the commercial leases at
issue in Julius Castle Restaurant, Inc. v. Payne
and Thrifty Payless, Inc. v. Americana at
Brand, LLC.8 In Julius, commercial tenants
sued their landlord for fraud related to purported oral representations that the restaurant
equipment was in working order and that the
landlord would fix any broken equipment.
Over the landlord’s objections, the court concluded that “parol evidence is admissible as
22 Los Angeles Lawyer January 2015
to fraud claims involving sophisticated parties,” reasoning that said admissibility “does
not create any injustice” because parties
“claiming fraud in the inducement [are] still
required to prove they relied on the parol
evidence and that their reliance was reasonable.”9 In Julius, the tenants met their burden
“to prove that, notwithstanding both the
Lease’s integration clause and the ‘as is’ language with respect to the restaurant equipment, they reasonably relied on [the landlord’s] prior oral assurances in entering into
the agreements.”10 The Julius court also disagreed with the landlord’s argument that
Riverisland should only apply to contracts of
adhesion.11
Likewise, Thrifty cited to Riverisland to
find extrinsic evidence “admissible to establish fraud or negligent misrepresentation in the
face of the lease’s integration clause.”12 In
Thrifty, the plaintiff tenant of commercial
space alleged fraud against the landlord for
purported false representations about estimated tax, insurance, and common area
expenses made in a letter of intent before
the parties executed the final lease. The landlord demurred, arguing that tenant agreed in
the lease that “it was entering into the lease
based on its own investigation,” that “implied
terms of the contract could not contradict the
express terms,” and that “the lease contained
an integration clause…such that prior negotiations and discussions, which were no more
than ‘estimates,’ were merged into the
lease.”13 The trial court granted the landlord’s demurrer, but the court of appeal
reversed in light of Riverisland, stating that
“extrinsic evidence is admissible to establish
fraud or negligent misrepresentation in the
face of the lease’s integration clause.”14
While as-is clauses and other provisions
disclaiming any representations or warranties
outside of the contract may not be enough to
win demurrers or motions for summary judgment, the clauses may be considered as factors tending to disprove the justifiable reliance
element of fraud.15 Indeed, it will be difficult
for a party to show that it justifiably relied on
a precontract statement contrary to the terms
of a final written contract when the contract
contains an integration clause in which the
party affirms that it cannot rely on any precontract statements contrary to the terms of
the final written contract.
In sum, although as-is clauses, integration clauses, and other provisions disclaiming
any representations or warranties outside of
the contract may have some efficiency in narrowing future contractual disputes, these provisions will not likely be enforced in accordance with their literal meaning with respect
to fraud claims, particularly claims of fraud
in the inducement.
It is also customary for commercial real
estate contracts to contain exculpatory
clauses. For example, commercial leases commonly include provisions stating that the landlord shall not be liable for negligence. In general, California law regards exculpatory
clauses with disfavor. Civil Code Section 1668
provides that certain exculpatory clauses “are
against the policy of the law.”16 Nevertheless,
parties may agree to certain exculpatory
clauses when the contract does not affect the
public interest.17 When the supreme court
reviewed the “troubled” history of Civil Code
Section 1668, it found the decisions uniform
in one respect: “The cases have consistently
held that the exculpatory provision may stand
only if it does not involve ‘the public interest.’”18
Public Interest Test
In Tunkl v. Regents of University of California, the supreme court set forth a “rough
outline” of factors to determine whether an
exculpatory clause involves the “public interest” and thus may be invalid. First, the contract “concerns a business of a type generally
thought suitable for public regulation.”
Second, “The party seeking exculpation is
engaged in performing a service of great
importance to the public…which is often a
matter of practical necessity for some members of the public.” Third, “The party holds
himself out as willing to perform this service for any member of the public who seeks
it, or at least for any member coming within
certain established standards.” Fourth, “As
a result of the essential nature of the service,
in the economic setting of the transaction, the
party invoking exculpation possesses a decisive advantage of bargaining strength against
any member of the public…[seeking those]
services.” Fifth, “In exercising a superior
bargaining power the party confronts the
public with a standardized adhesion contract
of exculpation…and makes no provision
whereby a purchaser may pay additional reasonable fees and obtain protection against
negligence. Sixth, “as a result of the transaction, the person or property of the purchaser is placed under the control of the
seller…subject to the risk of carelessness by
the seller” or the seller’s agents.19
Although the exculpatory clause in Tunkl,
which purported to relieve a charitable research hospital of negligence as a condition
of admission, was considered invalid as affecting the public interest, courts have routinely
found contracts involving real estate to fall
outside of the Tunkl factors. For example, in
Burnett v. Chimney Sweep, the court found
commercial leases to be “a matter of private
contract between the lessor and the lessee
with which the general public is not concerned.”20 Indeed, “no public policy opposes
private, voluntary transactions in which one
MCLE Test No. 242
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum
Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.
1. The term “as-is” may relieve a seller of real property
from liability for observable defects in the property’s
existing condition.
True.
False.
11. Parties can sometimes limit who is liable for certain
wrongs, notwithstanding Section 1668 of the Civil
Code.
True.
False.
2. In an as-is sale, no warranties of quality or condition
are implied in the sale of the property.
True.
False.
12. In a commercial transaction, a provision liquidating damages is presumptively valid unless the party
seeking to invalidate it shows that it is unreasonable.
True.
False.
MCLE Answer Sheet #242
BOILERPLATE BREAKDOWN
Name
Law Firm/Organization
Address
City
State/Zip
E-mail
Phone
3. When a seller intentionally conceals material defects
not otherwise visible or observable to the buyer, an asis provision will shield the seller from the buyer’s
claims.
True.
False.
4. An integration clause always defeats claims of
fraud in the inception of a contract.
True.
False.
5. Thrifty Payless, Inc. v. Americana at Brand, LLC,
found extrinsic evidence inadmissible to establish
fraud or negligent misrepresentation in the face of the
lease’s integration clause.
True.
False.
6. With respect to fraud claims, as-is clauses and
integration clauses will always be enforced in accordance with their literal meaning.
True.
False.
7. One factor that the U.S. Supreme Court has set
forth to help determine whether an exculpatory clause
involves the public interest is whether it concerns a
business of a type generally thought suitable for public regulation.
True.
False.
8. Contracts that have for their object to exempt any one
from his or her own fraud are against public policy.
True.
False.
9. Exculpatory clauses that shield against liability for
passive negligence always shield against liability for
active negligence as well.
True.
False.
10. Exculpatory clauses that shield against liability
for gross negligence are generally enforceable.
True.
False.
13. In a commercial transaction, there is no brightline rule to determine whether a provision liquidating
damages is reasonable.
True.
False.
14. The amount of damages actually suffered, as determined after a contract is made, is important in determining the validity of the liquidated damages provision.
True.
False.
15. All provisions attempting to limit the parties’
recovery are construed as liquidated damages.
True.
False.
16. Predispute waivers of the right to a jury trial are
generally unenforceable.
True.
False.
17. To validly agree to a general judicial reference, a
party must expressly waive his or her right to a jury.
True.
False.
18. A general judicial reference can only be entered
into after a dispute arises.
True.
False.
19. Since an agreement to submit future disputes
to judicial reference acts as a predispute jury trial
waiver, it is necessarily unenforceable.
True.
False.
20. Judicial reference provisions are subject to standard rules of contract interpretation and contract
defenses, such as fraud or unconscionability.
True.
False.
State Bar #
INSTRUCTIONS FOR OBTAINING MCLE CREDITS
1. Study the MCLE article in this issue.
2. Answer the test questions opposite by marking
the appropriate boxes below. Each question
has only one answer. Photocopies of this
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3. Mail the answer sheet and the $20 testing fee
($25 for non-LACBA members) to:
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MCLE Test
P.O. Box 55020
Los Angeles, CA 90055
Make checks payable to Los Angeles Lawyer.
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5. For future reference, please retain the MCLE
test materials returned to you.
ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
1.
■ True
■ False
2.
■ True
■ False
3.
■ True
■ False
4.
■ True
■ False
5.
■ True
■ False
6.
■ True
■ False
7.
■ True
■ False
8.
■ True
■ False
9.
■ True
■ False
10.
■ True
■ False
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
■ False
14.
■ True
■ False
15.
■ True
■ False
16.
■ True
■ False
17.
■ True
■ False
18.
■ True
■ False
19.
■ True
■ False
20.
■ True
■ False
Los Angeles Lawyer January 2015 23
party, for a consideration, agrees to shoulder
a risk which the law would otherwise have
placed upon the other party.”21
In the context of commercial real estate
transactions, California courts have repeatedly found general exculpatory clauses enforceable notwithstanding Civil Code Section
1668. Courts have found such provisions to
shield against liability for “passive” negligence, but parties should include more explicit
references to negligence if they wish to shield
against liability for “active” negligence as
well.22 In Inglis v. Garland,23 a general exculpatory clause shielded a landlord from its
passive failure to discover the actual source
of a leak sooner because the landlord made
bona fide efforts to repair the leak. On the
other hand, the court in Butt v. Bertola24 did
not consider a general exculpatory clause
sufficiently explicit and specific to shield a
landlord from its active negligence in repeatedly failing to repair leaks that it knew about,
which led to massive flooding that destroyed
the tenant’s store.25
Similarly, in Burnett, the court of appeal
reversed the trial court’s judgment on the
pleadings because questions of fact remained
as to whether the exculpatory clause protected the landlord from liability for its active
negligence in refusing to remediate a known
mold infestation.26 There, the general excul-
24 Los Angeles Lawyer January 2015
patory clause did not specifically mention
negligence, but a provision purporting to
shield the landlord from liability for any of
the tenant’s loss of profits did. As the court
stated, an agreement that “seeks to limit generally without mentioning negligence is construed to shield a party only for passive negligence, not for active negligence.”27 Had the
exculpatory clause in Burnett specifically
mentioned negligence as a claim released, it
likely would have released the active negligence at issue.28
This is because exculpatory clauses that
specifically mention negligence typically release parties from both passive and active
negligence.29 The parties, however, probably cannot contract around gross negligence.30
In Frittelli, Inc. v. 350 N. Canon Drive, LP,
the exculpatory clause that specifically mentioned negligence shielded the landlord from
liability for active negligence.31 The court
further noted that the lease set forth the landlord’s “sole recourse” to file an insurance
claim.32 Interestingly, parties can sometimes
limit who is liable for certain wrongs as well,
notwithstanding Section 1668.33 In short, in
commercial real estate transactions, parties
may exculpate themselves from liability for
negligence (but probably not fraud or gross
negligence), and they should specifically mention negligence in an exculpation clause to
reflect the parties’ intent to disclaim liability
for active as well as passive negligence.34
Provisions Limiting Damages
Commercial real estate contracts, particularly
contracts for purchase and sale of real property, commonly include liquidated damages
provisions. In a commercial transaction, a
provision liquidating damages is presumptively valid unless the party seeking to invalidate it shows that it is unreasonable.35 However, in commercial contracts, a provision
liquidating the damages to the seller if the
buyer fails to purchase the property must also
be 1) “separately signed or initialed by each
party to the contract,” and 2) “set out either
in at least 10-point bold type or in contrasting
red print in at least eight-point bold type” if the
provision is included in a printed contract.36
With respect to commercial property, the validity of a liquidated damages provision depends
upon its reasonableness at the time the contract
was made and not as it appears in retrospect.
Accordingly, the amount of damages actually
suffered or the fact that damages could become
readily ascertainable at some point after the
contract was made have no bearing on the
validity of the liquidated damages provision.37
In commercial transactions, there is no
bright-line rule to determine whether a liquidated damages provision is reasonable, but
“the circumstances existing at the time of
the making of the contract are considered,
including the relationship that the damages
provided in the contract bear to the range of
harm that reasonably could be anticipated at
the time of the making of the contract…the
relative equality of the bargaining power of
the parties, whether the parties were represented by lawyers at the time the contract was
made, the anticipation of the parties that
proof of actual damages would be costly or
inconvenient, the difficulty of proving causation and foreseeability, and whether the
liquidated damages provision is included in
a form contract.”38 Most important in determining the reasonableness of liquidated damages is whether the amount is proportional to
the damages that may actually flow from the
anticipated breach—whether the amount represents the parties’ reasonable effort to estimate a “fair average compensation for any
loss that may be sustained.”39 In the absence
of this relationship, a liquidated damage
clause is deemed void as a penalty.40
In Harbor Island, the liquidated damages
provision was considered a penalty because
it allowed the landlord to collect double rent
if the tenant breached the lease. The court
determined that the amount was not reasonably related to any actual damages that the
landlord could have anticipated resulting
from the tenant’s failure to properly maintain
the premises. Likewise, in Fox Chicago Realty
Corporation v. Zukor’s Dresses,41 a liquidated damages clause was considered a penalty
when it required the tenant to pay $159,450
for breaching the lease by removing portions
of the store. The parties initially agreed to
monthly rent of $4,100 but repeatedly modified their lease to reduce the rent. The liquidated damages provision required the tenant
to pay the cumulative difference between the
initial $4,100 rent and the reduced rent actually paid each month in the event of any
breach. Not only did the landlord fail to
show that the damages suffered were difficult
to ascertain, which was required at the time,42
but he also failed to show how payment of
$159,450 for removal of portions of the store
was proportional to any damages anticipated
from the unauthorized removal.43 In Smith v.
Royal Manufacturing Company, the court
considered a liquidated damages provision a
penalty based on the proposition that when
“a fixed sum is agreed upon as liquidated
damages for one of several breaches of varying degree, it is to be inferred that a penalty
was intended.”44
On the other hand, the provision in Hong
v. Somerset Associates 45 was not a penalty
because it only provided for liquidated damages in the amount of 2 percent of the purchase price in the event of the buyer’s failure
to complete the purchase. In addition, the par-
ties were sophisticated and understood that,
pending the close of escrow, the seller would
take the property off the market, make
repairs, and continue to make mortgage and
insurance payments.
Similarly, the provision in El Centro Mall,
LLC v. Payless ShoeSource, Inc.,46 was not a
penalty, even though it provided for liquidated damages of 10 cents per square foot of
leased space per day in the event of a breach.
Although the lease already provided for payments of percentage rental in the event of the
tenant’s default, the liquidated damages clause
was held reasonable in part because it accounted for more than percentage rental, such
as anticipated loss of synergy, goodwill, and
patronage.
Interestingly, not all provisions attempting to limit recovery are necessarily construed
as liquidated damages. To the extent that a provision is considered a mere limitation on liability, as opposed to a liquidated damages
clause, it may be enforced according to its literal meaning. In Wheeler v. Oppenheimer,47
the agreement stated: “‘If Seller does not complete sale it is agreed that she will pay all
accured [sic] Costs and expenses, Seller only to
be liable for such costs and expenses.’” Despite
the buyer’s claim that the clause constituted a
void liquidated damages clause, the court disagreed, stating: “We think the provision was
Law Offices of Paul P. Young
Enforcing Judgments in all California Courts
not intended to prescribe a definite liability, i.e.,
liquidated damages, but is a limitation on the
maximum possible recovery for actual loss or
damage alleged and shown by evidence. It
imposes a limitation within which damages
might be proved. The validity of the condition
is not open to doubt.”48 Thus, clauses imposing mere limitations on liability, subject to
proof, as opposed to definite liability, are not
considered liquidated damages.49
The lesson is that a party seeking to limit
its damages ahead of time may do so in a liquidated damages clause, as long as the amount
constitutes a reasonable estimate given the circumstances at the time of contracting. However, if the liquidated damages provision constitutes a penalty, the provision will not be
enforced, despite the literal meaning of the
agreement. Parties may also consider limiting
their damages in a more open-ended limitation-on-liability clause, subject to proof.
Waiver of Right to Trial by Jury
Many commercial real estate contracts still
include predispute jury trial waivers, but
these provisions are unenforceable. The exclusive methods for this type of waiver are set
forth by Section 631(f) of the Code of Civil
Procedure.50 Although one method is waiver
by express consent,51 Section 631 “presupposes a pending action.”52 In other words,
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only persons who are already parties to a
pending action may enter into a waiver of jury
trial as provided by statute.53 As such, parties are generally prohibited from using a
contract to prevent future disputes from being
adjudicated by jury trial.
Parties, however, may effectively contract
around a jury trial, while maintaining the
procedural and substantive protections of a
bench trial, by agreeing to resolve future disputes through general judicial reference.
General judicial reference is a procedure by
which the parties agree to submit their dispute
to an appointed neutral third party who renders a binding decision. While parties can
agree on modified procedural and evidentiary rules, judicial reference proceedings are
conducted much like bench trials and are
subject to appellate review. Referees are bound
to follow applicable substantive law rather
than more abstract notions of equity or fairness that may be applicable to arbitration.
A general judicial reference is initiated by
agreement between the parties,54 can be
entered into either pre- or postdispute, and
results in a decision that is binding between
the parties. Courts have repeatedly held that
an agreement to submit future disputes to
judicial reference is enforceable, even though
it acts as a predispute waiver to the right to
jury trial.55 Moreover, the agreement need not
26 Los Angeles Lawyer January 2015
expressly negate jury trial, nor need it be
filed with the court.56
Judicial reference provisions, however,
are subject to standard rules of contract interpretation and contract defenses, such as fraud
or unconscionability.57 This requires the clause
to be conspicuous, plain and clear, so that it
does not defeat the parties’ reasonable expectations. Although the waiver of a jury trial
need not be expressly stated, an agreement to
submit to judicial reference must “clearly and
unambiguously show that the party has agreed
to resolve disputes in a forum other than the
judicial one, which is the only forum in which
disputes are resolved by juries.”58
Common boilerplate provisions in real
estate contracts are frequently not enforced
in accordance with their literal meaning. In
some cases, such provisions are absolutely
unenforceable or may only be enforced in
certain contexts. As a result, real estate
lawyers and professionals should recognize
the limitations of such boilerplate provisions
as they negotiate and memorialize their agreements and consider alternative means to meet
their objectives.
■
1
Shapiro v. Hu, 188 Cal. App. 3d 324 (1986).
See, e.g., Ryan J. Barncastle & Kenneth E. Moore, The
Fraud Exception to the Parol Evidence Rule after
Riverisland, LOS ANGELES LAWYER, Nov. 2013, at 10.
3 Blankenheim v. E. F. Hutton & Co., 217 Cal. App.
2
3d 1463, 1471-72 (1990).
Manderville v. PCG & S Group, Inc., 146 Cal. App.
4th 1486, 1500-01 (2007); see also Smith v. Rickards,
149 Cal. App. 2d 648, 653-54 (1957).
5 Bank of Am. Nat. Trust & Sav. Ass’n v. Pendergrass,
4 Cal. 2d 258, 263 (1935); Julius Castle Rest. Inc. v.
Payne, 216 Cal. App. 4th 1423, 1440 (2013).
6 Riverisland Cold Storage, Inc. v. Fresno-Madera
Prod. Credit Ass’n, 55 Cal. 4th 1169 (2013).
7 Id. at 1180-81.
8 Julius, 216 Cal. App. 4th 1423; Thrifty Payless, Inc.
v. Americana at Brand, LLC, 218 Cal. App. 4th 1230
(2013).
9 Julius, 216 Cal. App. 4th. at 1442.
10 Id.
11 Id.
12 Thrifty, 218 Cal. App. 4th at 1241.
13 Id. at 1237.
14 Id. at 1241-42 (“Thrifty can allege both intentional
and negligent misrepresentations based upon
Americana’s grossly inaccurate estimates.”).
15 See Manderville v. PCG & S Group, Inc., 146 Cal.
App. 4th 1486, 1489 (2007).
16 CIV. CODE §1668; Burnett v. Chimney Sweep, 123
Cal. App. 4th 1057, 1066 (2004) (“‘[T]he law does not
look with favor upon attempts to avoid liability or
secure exemption for one’s own negligence, and such
provisions are strictly construed against the person
relying upon them.’”) (quoting Basin Oil Co. of Cal.
v. Baash-Ross Tool Co., 125 Cal. App. 2d 578, 594
(1954); Frittelli, Inc. v. 350 N. Canon Drive, LP, 202
Cal. App. 4th 35, 43 (2011) (Any exemption from
liability for negligence “is subject to the public policy
disfavoring attempts by contract to limit liability for
future torts.”).
17 Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 9596 (1963).
4
18
Id.
Id. at 98-100.
20 Burnett, 123 Cal. App. 4th at 1066; see also Rooz
v. Kimmel, 55 Cal. App. 4th 573 (1997); cf. Akin v.
Business Title Corp., 264 Cal. App. 2d 153 (1968).
21 Tunkl, 60 Cal. 2d at 101.
22 See Burnett, 123 Cal. App. 4th at 1067; Frittelli, Inc.
v. 350 N. Canon Drive, LP, 202 Cal. App. 4th 35, 48
(2011).
23 Inglis v. Garland, 19 Cal. App. 2d Supp. 767, 769,
774 (1936).
24 Butt v. Bertola, 110 Cal. App. 2d 128, 138-40
(1952).
25 The exculpatory clause in Butt provided: “‘It is
agreed by the parties hereto, that said Lessor shall not
be liable for damages to any goods, property, or effects
in or upon said demised premises, caused by gas,
water, or other fluid from any source whatsoever.’” Id.
at 138.
26 Burnett, 123 Cal. App. 4th at 1061-62, 1065-66.
27 Id. at 1066; Butt, 110 Cal. App. 2d at 140.
28 Burnett, 123 Cal. App. 4th at 1066.
29 See, e.g., Frittelli, Inc. v. 350 N. Canon Drive, LP,
202 Cal. App. 4th 35, 48 (2011); Rooz v. Kimmel, 55
Cal. App. 4th 573, 587 n.7. (1997).
30 Frittelli, 202 Cal. App. 4th at 43.
31 See id. at 45.
32 Id. at 39-40.
33 Farnham v. Superior Court, 60 Cal. App. 4th 69, 72,
77 (1997).
34 Burnett v. Chimney Sweep, 123 Cal. App. 4th 1057,
1065-66 (2004); see also Frittelli, 202 Cal. App. 4th at
48-49.
35 CIV. CODE §§1671, 1679.
36 CIV. CODE §§1670, 1671, 1676, 1677; Hong v.
Somerset Assocs., 161 Cal. App. 3d 111, 115 (1984);
see also El Centro Mall, LLC v. Payless ShoeSource,
Inc., 174 Cal. App. 4th 58 (2009).
37 El Centro Mall, 174 Cal. App. 4th at 63; Smith v.
Royal Mfg. Co., 185 Cal. App. 2d 315, 323-24 (1960).
38 CIV. CODE §1671 cmts.
39 Harbor Island Holdings v. Kim, 107 Cal. App. 4th
790, 796 (2003).
40 Id.; see also Fox Chicago Realty Corp. v. Zukor’s
Dresses, 50 Cal. App. 2d 129, 134 (1942) (“Any provision by which money or property is to be forfeited
without regard to the actual damage suffered calls for
a penalty and is therefore void.”).
41 Fox, 50 Cal. App. 2d at 129.
42 See Hong v. Somerset Assocs., 161 Cal. App. 3d 111,
114-15 (1984).
43 Fox, 50 Cal. App. 2d at 134.
44 Smith v. Royal Mfg. Co., 185 Cal. App. 2d 315, 324
(1960).
45 Hong, 161 Cal. App. 3d at 115-16.
46 El Centro Mall, LLC v. Payless ShoeSource, Inc., 174
Cal. App. 4th 58 (2009).
47 Wheeler v. Oppenheimer, 140 Cal. App. 2d 497, 499
(1956).
48 Id.
49 Id.
50 Grafton Partners, L.P. v. Superior Court, 36 Cal. 4th
944, 952-56 (2005).
51 See CODE CIV. PROC. §631(f).
52 Grafton Partners, 36 Cal. 4th at 957-58.
53 Id.
54 CODE CIV. PROC. §638.
55 Woodside Homes of Cal., Inc. v. Superior Court, 142
Cal. App. 4th 99, 103-04 (2006).
56 Id. at 104 (“A statute permitting agreement for a reference unambiguously results in a waiver of ‘jury trial’
without the need to use those words.”); O’Donoghue
v. Superior Court, 219 Cal. App. 4th 245, 256 (2013).
57 See Badie v. Bank of Am., 67 Cal. App. 4th 779, 78790 (1998); O’Donoghue, 219 Cal App. 4th at 258-61.
58 O’Donoghue, 219 Cal. App. 4th at 257-58.
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by Cyndie M. Chang and Paul J. Killion
SL A NIG UGA G ENS
The regulatory authority of municipalities over commercial
signage does not trump the First Amendment
28 Los Angeles Lawyer January 2015
who would later become the mayor of Monterey Park and a member of Congress—led a
successful movement against passage of the
ordinance.2 As a compromise, however, the
Monterey Park City Council approved a sign
ordinance that required all businesses in
Monterey Park to display at least an Englishlanguage business identification (e.g., restaurant, bakery, dental office) on their commercial signs.3 In 2013, Monterey Park undertook
a general revision of its zoning code,4 and as
part of that process, city staff examined the old
code and began to propose changes to ensure
consistency with California law and the city’s
general plan. One of the changes considered
was updating the old English-language sign
ordinance.
The proposed replacement ordinance,
however, contained most of the same problems as the original. The proposed ordinance did not require the English language
on signs but did require that each business
have one sign that used the “modern Latin
alphabet” and display “business specific
information” using “Hindu-Arabic numerals and modern Latin alphabet.”5 In a city
with dozens of businesses using signs conCyndie M. Chang is the managing partner of the Los
Angeles office of Duane Morris and practices business litigation. Paul J. Killion is a certified appellate specialist and partner in the firm’s San
Francisco office. With a team of Duane Morris
lawyers the authors provided analysis of the proposed sign ordinance to the Monterey Park City
Council.
HADI FARAHANI
MAY A CITY REQUIRE that businesses use
the Latin alphabet and Hindu-Arabic numerals on their commercial signs? Recently, the
city of Monterey Park proposed this as a
new ordinance. Although the proposal was
initiated to update outdated ordinances on the
city’s books, it created racial tension and
raised serious constitutional concerns. How
the Monterey Park signage dispute was resolved provides valuable lessons for other
cities in the Los Angeles area.
The outdated ordinances were themselves
a legacy of a previous English-language signage controversy in the 1980s, when, in response to Asian immigration, three Monterey
Park council members proposed that English
be declared the official language of the city.1
Community leaders—including Judy Chu,
taining Chinese and other Asian characters
and with a history of racial tensions involving immigrant newcomers, the proposed
ordinance created controversy. City council
members differed on whether the proposed
ordinance should be adopted. One online
poll of 513 residents reported that 60 percent supported the ordinance because a
“business should be as accessible as possible”; 34 percent said “the city should stay
out of their business”; and 6 percent were
unsure.6 The proposed ordinance also raised
a host of legal concerns.
California Signage Regulations
Under the Government Code, local agencies
are authorized to regulate the placement of
signs and billboards.7 Generally, this authority to regulate signs is premised on a city’s
police power, and “courts have upheld such
regulations as justified by government interests such as traffic safety and aesthetics.”8
Local agencies may impose reasonable time,
place, and manner restrictions on signs, as
long as these restrictions “are adequately justified without reference to the content of the
regulated speech.”9
Further, while no statute specifically
addresses a city’s ability to regulate or require
specific languages or specific types of script
and numerals in business signs, several come
close. The California Residential Code, a
part of the California Code of Regulations,
requires Arabic numerals or alphabetical
letters for dwellings.10 Specifically, Section
R319.1, titled “Site Address,” requires that
buildings have “approved address numbers”
that “shall be Arabic numbers or alphabetical letters.” And while the California
Building Code, which applies to “[a]ny structure used or intended for supporting or sheltering any use or occupancy,” does not
specifically require Arabic numerals, it does
require that “[n]ew and existing buildings
shall be provided with approved address
numbers or letters.” The code explains this
as address numbers that are “[a]cceptable to
the code official or authority having jurisdiction.”11
This regulatory authority, however, does
not grant cities the power to ignore the First
Amendment. A key California case discussing
the extent of the government’s police power
over signage is Carlin v. City of Palm Springs.
At issue in Carlin was a Palm Springs ordinance that effectively prohibited the use of
outside business signs that made reference to
prices or rates. The court of appeal struck
down the ordinance because it created an
invalid classification between rate and nonrate signs under the guise of aesthetics. The
plaintiff had a permanent sign displaying
the official name of the business as “650
Hotel” to describe the rate of $6.50.12 The
30 Los Angeles Lawyer January 2015
plaintiff argued that the ordinance violated
equal protection and free speech principles.
The court agreed.13
Signs are speech under the First Amendment.14 The key case in this area is City of
Ladue v. Gilleo, in which the U.S. Supreme
Court addressed challenges to a sign ordinance that prohibited residences from displaying any signs other than residence identification signs, “‘for sale’ signs, and signs
warning of safety hazards.”15 The Supreme
Court held the ordinance unconstitutional.
Although the Court found that signs are subject to cities’ police powers—because they
“take up space and may obstruct views, distract motorists, displace alternative uses for
land, and pose other problems that legitimately call for regulation”—the measures
regulating signs affect communication itself.16
As such, sign regulations may be challenged
on the ground that they restrict too little
speech because their “exemptions discriminate
on the basis of the signs’ messages” or “on the
ground that they simply prohibit too much
protected speech.”17
In analyzing First Amendment challenges,
courts distinguish between commercial
speech and noncommercial speech, generally
applying a lesser, “intermediate” scrutiny
to commercial speech, regardless of whether
it is content-based. Commercial speech is
defined as “speech which does ‘no more
than propose a commercial transaction.’”18
Yet even speech that proposes a commercial
transaction may be protected like noncommercial speech, if a law regulates the expression of culture and national origin through
that speech.19 Under the intermediate level
of review applicable to commercial speech,
a law is constitutional if “a substantial government interest” is advanced by the law and
if the law’s regulation “is no more extensive
than necessary to serve that interest.”20 If a
classification does not fall within the parameters of strict or intermediate scrutiny, the
courts will generally uphold the classification
if it is rationally related to a legitimate state
interest.21
City of Pomona
In the 1980s, the city of Pomona faced a signage controversy. In Asian American Business
Group v. City of Pomona, the U.S. District
Court for the Central District of California
struck down a Pomona ordinance requiring
that half of a “foreign alphabet sign” be
devoted to English alphabetical characters.22
The district court found that the ordinance
regulated content23 and that although regulating signs had commercial aspects, the ordinance did not regulate those aspects. 24
Because it targeted noncommercial speech, the
ordinance was subject to strict scrutiny, and
the district court found that the ordinance vio-
lated the First Amendment because it was
not narrowly tailored to meet Pomona’s stated
interest in safety.25
Unlike the Pomona ordinance, the proposed Monterey Park ordinance did not require the use of English, but it did require
the Latin alphabet. This effectively forbade
the sole use of language not employing the
Latin alphabet. A sign using only Chinese
characters, for example, would not comply
with the ordinance. Thus, the proposed ordinance suffered from the same constitutionality
problems identified in City of Pomona. That
is, by regulating the type of language that can
be used in business signs, Monterey Park’s
proposed ordinance regulated the expression
of culture and national origin.26 As such,
Monterey Park’s proposed ordinance was subject to strict scrutiny analysis under the First
Amendment.27
Determining whether a stated governmental interest is sufficiently compelling varies
from case to case, but public safety, health, and
welfare are generally seen as compelling interests.28 The stated purpose of Monterey Park’s
proposed ordinance was to “promote economic development; help public safety; and
facilitate public communication.”29 The reasoning behind each stated purpose was tenuous, particularly when scrutinized through
constitutional standards.
Regarding economic development, proponents of the ordinance contended that modern Latin lettering on commercial signs would
enhance the city’s “character and its economic
base by requiring easily recognizable signage”
and maintain and “improve the aesthetic environment and overall community appearance
to foster the City’s ability to attract sources of
economic development and growth.”30 The
city noted that its new mixed-use zoning called
for clear and consistent signage to help drivers
locate particular businesses.31 No applicable
decision has yet held that economic development is a compelling state interest in the context of a challenge to the constitutionality of
a sign ordinance, although it has been a sufficient state interest in other contexts, such
as in eminent domain.32 Instead, decisional
law typically considers economic development to be an important—not compelling—
state interest, to be guided by intermediate
scrutiny.33
The proponents of the ordinance also justified the sign ordinance with public safety
arguments that the proposed modern Latin
alphabet requirement was necessary so that
firefighters and police could respond quickly
and efficiently in the event of an emergency.34
The support for this argument consisted of
conclusory statements by the city’s fire and
police chiefs, with no specific studies or
research in support. There was no evidence
that any emergency responders in Monterey
Park had failed to locate an emergency because a sign did not use the modern Latin
alphabet. Furthermore, in response to questions by a reporter, the fire chief acknowledged
that his firefighters rely on GPS coordinates
to confirm the location of an emergency, not
business signs.35
In addition, proponents claimed the modern Latin alphabet requirement would “reduce possible traffic and safety hazards from
confusing or distracting signs.”36 In promoting this justification, the proponents cited
Federal Highway Administration (FHA)
guidelines that indicate that uniformity of
signage “aids in recognition and understanding, thereby reducing perception/reaction
time.”37 The FHA manual, however, does
not address commercial signage.38 A safety
argument probably could be made if traffic
signs were solely in Chinese, but the proposed ordinance regulated commercial signage, and drivers do not rely on commercial
signage to guide them in traffic.
Addresses may constitutionally be regulated and mandated to use Hindu-Arabic
numerals because they are uniquely used as
a proxy for location, and a common method
to determine location is important to society.39
This government interest is demonstrated by
the required use of Hindu-Arabic numerals for
addresses in the National Emergency Number
Association’s Master Street Address Guide, the
U.S. Postal Service’s Postal Addressing Standards, and the Federal Geographic Data Committee’s Draft United States Thoroughfare,
Landmark, and Postal Address Data Standard. Business signs are different. They are
not a proxy for location, and no guidelines
exist to suggest that business signs should
be standardized. Rather, business signs are
intended to convey consumer information,
often in a unique and eye-catching manner. As
such, there is no need for standardization in
the same way as addresses.
With regard to fiscal impact, the city’s
staff report indicated that the cost to the city
was indeterminate.40 There would be “minimal cost[s] for codification of the regulations. As to administration and enforcement
of the sign regulation, applications [would]
off-set the City’s administrative costs as part
of their application fee.”41 Therefore, the
city anticipated that its costs would likely be
minimal.42
Although not addressed in the city’s report,
California law requires the payment of fair
and just compensation when sign regulations
require changes to existing signage. Specifically, California Business and Professions
Code Section 5491 states that “no on-premises advertising display which is used for any
of the purposes set forth and conforming to
Section 5490 shall be compelled to be removed or abated, and its customary mainte-
nance, use, or repair shall not be limited…
without the payment of fair and just compensation.”
Narrowly Tailored
Even assuming the Monterey Park ordinance
could be justified by a compelling government
interest in public safety, its constitutionality
under the First Amendment would still
depend on whether the ordinance was narrowly tailored to meet the compelling state
interest. In City of Pomona, the court found
that Pomona’s ordinance violated the First
Amendment because it was not tailored narrowly enough. Specifically, the district court
found that an ordinance requiring English
on business signs “would not necessarily
insure the posting of a sign that would be
helpful in reporting the location.”43 The court
further noted that the most expedient way to
report the location of an emergency would be
the street address.44
In Watseka v. Illinois Public Action Council, a city passed an ordinance prohibiting
door-to-door solicitation during certain hours
of the night, citing “the safety, health, comfort, good order, protection, and welfare of
[] residents of th[e] City” as the reason for the
ordinance.45 The Seventh Circuit held that in
this context the regulation was not narrowly
tailored to the asserted interests, explaining
that “[w]hen a city like Watseka wants to pass
an ordinance that will substantially limit First
Amendment rights, the city must produce
more than a few conclusory affidavits of city
leaders which primarily contain unsubstantiated opinions and allegations.”46 A city
must establish convincingly that its regulations
will truly meet its asserted interests.47 For
several reasons, proponents of the Watseka
ordinance did not convincingly establish that
the proposed ordinances would actually
address a public safety goal.
First, a business sign can be in a different
language other than English, such as German,
Vietnamese, or Polish, and still comply with
the ordinance, so long as the Latin alphabet
is used, but it would not necessarily enhance
effective communication with English-speaking emergency responders. Second, a business
sign can comply with the proposed ordinance
by phonetically spelling out words of a different language using the Latin alphabet (i.e.,
a transliteration). For example, the Greek
for “Hellenic Republic” can be transliterated into Latin letters, but doing so does not
advance the stated purpose of effective communication.
Third, a translation of a foreign language
using the modern Latin alphabet does not necessarily aid emergency responders. For example, one commentator noted that translating
the Chinese characters for car insurance into
the modern Latin alphabet would result in the
phrase “qiche baoxian;” a dentist would be
“yake yisheng;” and barber would be “lifa
shi.”48 Such phrases are hardly more effective
in identifying a business than the use of actual
Chinese characters, and they are unlikely to
assist emergency personnel. Fourth, a business
sign can comply with the proposed ordinance
just by using a word such as “restaurant.” But
as one city council member pointed out,
adding the word “restaurant” to a sign in a
shopping center containing multiple restaurants is hardly helpful to public safety. In
sum, Monterey Park’s proposed sign ordinance would likely fail a strict scrutiny analysis in court.
Fourteenth Amendment
Under the equal protection clause of the
Fourteenth Amendment, courts apply strict
scrutiny to any governmental regulation that
involves a suspect classification such as race,
origin, or nationality.49 Intent to discriminate
does not need to be shown where a “law has
an overtly discriminatory classification on its
face.”50 In order to withstand strict scrutiny,
a regulation “must be precisely tailored to
serve a compelling state interest.”51 In City of
Pomona, the court found that Pomona’s ordinance discriminated on the basis of national
origin because it required English on business signs.52 Use of foreign language is an
expression of culture and national origin, and
discriminating against business owners who
use foreign language constitutes discrimination
on the basis of national origin.53 Monterey
Park’s proposed ordinance similarly used an
overtly discriminatory classification because
it expressly discriminated against business
owners who used foreign characters on their
signs. The fact that Monterey Park’s proposed
ordinance did not require a specific language
but instead required specific forms of letters
and numerals still fundamentally discriminates against business owners who use languages employing characters.
Thus, as with the ordinance in City of
Pomona, Monterey Park’s proposed ordinance would likely not withstand strict
scrutiny. As held in City of Pomona, the proposed ordinance does not have a strong
enough relationship to effectively further the
stated public safety goal because there are
other nondiscriminatory ways to achieve it,
such as requiring all buildings to have signs
that help emergency personnel.54
Due Process and Vagueness
The proposed Monterey Park ordinance also
raised due process concerns under the Fourteenth Amendment. A statute or other legislative enactment “must ‘give the person of
ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may
act accordingly.’”55 In addition, the chalLos Angeles Lawyer January 2015 31
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32 Los Angeles Lawyer January 2015
lenged statute’s prohibitions or mandates
must not be so indefinite as to allow arbitrary
and discriminatory enforcement.56 Furthermore, if an ordinance “interferes with the
right of free speech…a more stringent vagueness test should apply.”57 This stricter standard is necessary when speech is involved
“to ensure that ambiguity does not chill protected speech.”58
A statute can be void for vagueness when
it does not specify a sufficiently definite standard of conduct. 59 Generally, vagueness
claims that arise as challenges to municipal
sign ordinances tend to involve permitting
requirements for signs, prohibitions on obscenity on signage, and differential treatment
of business and residential signage (including
what counts as a “sign” for residential banners and other displays). Monterey Park’s
proposed ordinance likely suffered from constitutional vagueness because its definition
of “business specific information,” which is
the information that store owners must post
in the modern Latin alphabet, was unclear in
consideration of the ordinance’s goals. “Business specific information” could mean a
translation of the actual name of the business,
a transliteration of the business name, language explaining why a particular name was
chosen for a business, or any number of other
interpretations. If the city intended shop owners to post a translation of their business’s
actual name, it could have stated this easily;
instead, the proposed ordinance’s lack of
clarity hindered the efforts of business owners to comply.
In XXL of Ohio, Inc. v. City of Broadview
Heights, the U.S. District Court for the
Northern District of Ohio found some provisions in a city’s sign ordinance void for
vagueness.60 In particular, the court found the
terms “overly large,” “excessive amount of
information,” and “out of scale with the
building” were too vague to permit “[a] person of average intelligence [to] know from this
provision when the size of lettering or the
amount of information on a sign offends the
ordinance.”61
The controversial signage ordinance proposed in Monterey Park is not the only one
of its kind in the Los Angeles area. For example, Rosemead, San Gabriel, San Marino,
and Temple City, all cities with Asian populations of more than 50 percent, have similarly outdated ordinances on their books,
raising questions of constitutional validity.62
If Monterey Park’s experience is any lesson,
changing the ordinances can be controversial.
When the ordinance was proposed in Monterey Park, it reopened racial wounds from the
past. After many meetings, a divided city
council defeated the proposed ordinance by
deciding not to call a vote on it.63 The whole
process did have a positive side. It brought
together community organizations and city
officials who have since held a harmony celebration dinner and have started a dialogue
on diversity initiatives.
Perhaps the strongest argument against
Monterey Park’s ordinance was simply that the
proponents were unable to show there was a
problem in need of a solution.64 Shortly after
the previous ordinance was repealed, the city
noted that it had about 100 small business
applications. Despite the lack of regulation, all
the new applicants had some English or modern Latin characters in their proposed storefront signage. Apparently, Monterey Park shop
owners believe having some English on their
business signs is simply good business.
■
1 See Frank Shyong, Monterey Park Sign Ordinance
Debate Recalls ’80s Ethnic Controversy, L.A. TIMES
(Aug. 3, 2013), http://articles.latimes.com/2013
/aug/03/local/la-me-english-signs-20130804.
2 See Sun Weichi & Du Liya, Monterey Park Store Sign
Rule Sparks Debate, GLOBAL TIMES (Aug. 8, 2013),
http://www.globaltimes.cn/content/802533.shtml; see
also Judy Chu for Congress, http://www.judychu.org
/about.php (last visited Nov. 4, 2014).
3 Mark Arax, Stronger Rules on English in Signs
Pushed by Council, L.A. T IMES (Dec. 5, 1985),
http://articles.latimes.com/1985-12-05/news/ga-633_1
_sign-ordinance; see also, generally, MONTEREY PARK,
CAL., MUN. CODE. tit. 21, §50.180, repealed as recognized in JAMES FUNK, PUBLIC HEARING: ADDING A
NEW § 21.24.675 TO CHAPTER 21.24 OF THE MONTEREY
PARK MUNICIPAL CODE REQUIRING IDENTIFICATION SIGNS
FOR NON-RESIDENTIAL PROPERTIES (COUNCIL ACTION) 1
(2013), available at http://www.montereypark.ca
.gov/AgendaCenter/ViewFile/Agenda/07172013-542
(document begins on page 138 of the PDF); see also
MONTEREY PARK, CAL., ORDINANCE 1770, §27 (1989);
Monterey Park, Cal., Ordinance 1657, §2 (1986); see generally T IMOTHY P. F ONG , T HE F IRST S U B U R B A N
CHINATOWN: THE REMAKING OF MONTEREY PARK,
CALIFORNIA 145-46 (2010).
4 JAMES FUNK, CONSENT ITEM: TITLE 21 ZONING CODE AMENDMENT (CA-13-01) (COUNCIL ACTION) 2 (2013) [hereinafter FUNK], available at http://www.montereypark.ca
.gov/AgendaCenter/ViewFile/Agenda/05012013-537
(document begins on page 54 of the PDF).
5 FUNK, supra note 4, at 1, Attachment A at 2–3.
6 See Chen Jia, US City Store Sign Rule Sparks Debate,
CHINA DAILY (Aug. 10, 2013), available at http://europe
.chinadaily.com.cn/world/2013-08/10/content_16884401
.htm.
7 See GOV’T CODE §§38774, 65850(b).
8 See generally Steven T. Mattas, Specially Regulated
Land Uses, in 1 CALIFORNIA LAND USE PRACTICE §12.11
(2014).
9 City of Cincinnati v. Discovery Network, Inc., 507
U.S. 410, 428 (1993).
10 CAL. CODE REGS. tit. 24, §R319.1.
11 Id. at §§1.1.3, 202, 501.2 (§202 defining “approved”
and “building”).
12 Carlin v. City of Palm Springs, 14 Cal. App. 3d 706,
708-09, 715 (1971).
13 Id. at 712-13 (internal citations omitted).
14 See, e.g., Metromedia, Inc. v. City of San Diego, 453
U.S. 490, 501 (1981) (applying the First Amendment
to billboards).
15 City of Ladue v. Gilleo, 512 U.S. 43, 45 (1994).
16 Id. at 48.
17 Id. at 50-51.
18 See Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 761-62
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Los Angeles Lawyer January 2015 33
(1976).
19 Asian Am. Bus. Grp. v. City of Pomona, 716 F. Supp.
1328, 1330 (1989).
20 Id. at 1331.
21 Id. at 1330-31.
22 Id. at 1330.
23 Id. at 1330-31.
24 Id. at 1330.
25 Id. at 1330-31.
26 See id. at 1330.
27 See id.
28 See id.
29 FUNK, supra note 4, at 1, Attachment A at 1–2.
30 Id., Attachment A at 1.
31 See id. at 2.
32 See Kelo v. City of New London, 545 U.S. 469, 48487 (2005).
33 See Franco v. District of Columbia, 422 F. Supp. 2d
216, 222 (D. D.C. 2006); Kornhass Constr., Inc. v.
Oklahoma, 140 F. Supp. 2d 1232, 1240 (W.D. Okla.
2001).
34 FUNK, supra note 4, at 1, Attachments C and D.
35 See D.J. Waldie, Language in the Landscape: Monterey
Park Council Wants ‘Alphabet’ Signs, KCET (Aug. 2,
2013) [hereinafter Waldie], available at http://www.kcet
.org/updaily/socal_focus/commentary/where-we-are
/language-in-the-landscape-monterey-park-council
-wants-alphabet-signs.html.
36 FUNK, supra note 4, Attachment A at 1.
37 Id. at 2; see also FED. HIGHWAY ADMIN., U.S. DEP’T
OF TRANSP., MANUAL ON UNIFORM TRAFFIC CONTROL
DEVICES FOR STREETS AND HIGHWAYS §1A.06 (2009)
[hereinafter “FHA MANUAL”].
38 See FHA MANUAL §1A.06.
39 See, e.g., Serena Coetzee et al., Towards an International Address Standard, http://www.isotc211
.org/address/Copenhagen_Address_Workshop/papers
34 Los Angeles Lawyer January 2015
/CoetzeeEtAl_TowardsAnInternationalAddressStandard
_GSDI-10_2008.pdf.
40 FUNK, supra note 4, at 3.
41 Id.
42 Id.
43 Asian Am. Bus. Grp. v. City of Pomona, 716 F. Supp.
1328, 1330 (1989).
44 Id.
45 City of Watseka v. Illinois Pub. Action Council,
796 F. 2d 1547, 1548-49, 1555 n.14 (7th Cir. 1986),
aff’d, 479 U.S. 1048 (1987).
46 Id. at 1555 n.15.
47 Cf. id. at 1555.
48 See Waldie, supra note 35.
49 Graham v. Richardson, 403 U.S. 365, 371-72 (1971);
Hoffman v. United States, 767 F. 2d 1431, 1434 (9th
Cir. 1985).
50 Asian Am. Bus. Group v. City of Pomona, 716 F.
Supp. 1328, 1332 (1989) (citing Wayte v. United
States, 470 U.S. 598, 608 n.10 (1985)).
51 Hoffman, 767 F. 2d at 1435; City of Pomona, 716
F. Supp. at 1332.
52 City of Pomona, 716 F. Supp. at 1332.
53 Id. at 1330, 1332.
54 Id. at 1332.
55 Ford Motor Co. v. Texas Dep’t of Transp., 106 F.
Supp. 2d 905, 910 (W.D. Tex. 2000) (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
56 See Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 498, 503 (1982) (citing
Grayned, 408 U.S. at 108-09).
57 Id. at 499; Hynes v. Mayor & Council of Oradell, 425
U.S. 610, 619-20 (1976) (“The general test of vagueness
applies with particular force in review of laws dealing
with speech.”); Belle Maer Harbor v. Charter Twp. of
Harrison, 170 F. 3d 553, 556-57 (6th Cir. 1999).
58 Fed. Commc’ns Comm’n v. Fox Television Stations,
Inc., 132 S. Ct. 2307, 2317 (2012).
59 See Grayned, 408 U.S. at 108-09.
60 XXL of Ohio, Inc. v. City of Broadview Heights, 341
F. Supp. 2d 765, 771, 774, 806 (N.D. Ohio 2004).
61 Id. at 807.
62 See ROSEMEAD, CAL., MUN. CODE tit. 17, §116.080(A)
(2014) (“All commercial, industrial and professional
office on-premises signs shall identify the type of business (e.g. ‘restaurant,’ ‘market’) in the English language.”); SAN GABRIEL, CAL., MUN. CODE tit. 15, §153
.326(B) (2014) (“For the purpose of public safety, the
name of the business shall be indicated in the English
language or English alphabet on at least one location
on each business.”); SAN MARINO, CAL., MUN. CODE
tit. 23, art. 12.01(D)(5) (2013) (“[E]very sign constructed, altered or modified as to the copy, message,
or text must provide at least eighty percent (80%) of
its total signage area utilizing the Roman (Roman/
English) alphabet, Arabic numbers and words in common with the English language, without other characters or characterizations.”); TEMPLE CITY., CAL.,
MUN. CODE tit. 9, art. 1L-6(G)(1) (2014) (“Each business in commercial or manufacturing zones having an
on premises advertising sign visible from a public right
of way or parking area open to the general public
shall identify the name of the business or the nature of
the business conducted on the property in the English
language.”); see also U.S. CENSUS BUREAU, U.S. DEP’T
OF COMM., http://www.census.gov.
63 See, e.g., An Le, Broad, Multiethnic Coalition Stops
Divisive Signage Law in Monterey Park, available at
http://www.advancingjustice-la.org.
64 See Nancy Martinez, Monterey Park Approves Ordinance To Require ‘English’ Letters on Signs, EGPNEWS
(Aug. 1, 2013), http://www.egpnews.com/2013/08
/monterey-park-approves-ordinance-to-require-english
-letters-on-signs/.
DETERMINING PREMISES LIABILITY FOR THE
CRIMINAL ACTS OF THIRD PARTIES
Continued from page 15.
(2005).
Isaacs v. Huntington Mem’l Hosp., 695 P. 2d 653
(1985).
9 Id. at 659.
10 Ann M. v. Pacific Plaza Shopping Ctr., 863 P. 2d 207,
215 (1993).
11 Id.
12 Id. at 210.
13 Id.
14 Id.
15 Id. at 210–11.
16 Id. at 211.
17 Id.
18 Miller v. Pac. Plaza Shopping Ctr., 14 Cal. Rptr. 2d
272 (Ct. App. 1992) (depublished), review granted 846
P. 2d 703 (1993), aff’d sub nom. Ann M. v. Pac. Plaza
Shopping Ctr., 863 P. 2d 207 (1993).
19 Ann M., 863 P. 2d 207.
20 Id. at 215-16.
21 Id.
22 Id. at 215.
23 Sharon P. v. Arman, Ltd., 989 P. 2d 121 (1999).
24 Id. at 132.
25 Id. at 123-24, 127, 129-30.
26 Id. at 127, 130.
27 Delgado v. Trax Bar & Grill, 113 P. 3d 1159 (2005).
28 Id. at 1162.
29 Id.
30 Id.
31 Id. at 1162–163.
32 Id. at 1164 (internal quotations omitted).
33 Id. at 1163.
34 Id. at 1171.
35 Id. at 1172–73; accord Morris v. De La Torre, 36 Cal.
4th 260, 277–78 (2005) (liability for failing to undertake
minimally burdensome measures); Ambriz v. Kelegian,
146 Cal. App. 4th 1519, 1534–35 (2007).
36 Castaneda v. Olsher, 41 Cal. 4th 1205, 1214 (2007).
37 Id. at 1212.
38 Id.
39 Id.
40 Id. at 1214
41 Id. (quoting Vasquez v. Residential Inv., Inc., 118 Cal.
App. 4th 269, 285 (2004)).
42 Castaneda, 41 Cal. 4th at 1216.
43 Id.
44 M.W. v. Panama Buena Vista Union Sch. Dist., 110
Cal. App. 4th 508, 511 (2003).
45 Id. at 517.
46 Id. at 520.
47 Id.
48 Id.
49 Michael Janofsky, $2.53 Million Deal Ends Some
Columbine Lawsuits, N.Y. TIMES (Apr. 20, 2001),
http://www.nytimes.com.
50 THE WARNING SIGNS THAT COULD HAVE PREVENTED
THE VIRGINIA TECH SHOOTINGS, SCHOOL VIOLENCE:
WEAPONS, CRIME & BULLYING (archived from original
Oct. 14, 2013), http://www.nssc1.org.
51 CHARLES F. CARLETTA, SYNOPSIS OF THE REPORT OF THE
VIRGINIA TECH REVIEW (AUGUST 2007) PANEL, 29TH ANNUAL NATIONAL CONFERENCE FOR LAW & HIGHER EDUCATION, 2-6 (2010), http://www.stetson.edu/law/conferences
/highered/archives/2008/synopsis_of_VATech_Review.pdf.
52 Anita Kumar and Brigid Schulte, Va. Tech Families
Tentatively Back Deal, WASHINGTON POST, Apr. 11,
2008, http://www.washingtonpost.com; see also Martha
Neil, Top state court says Virginia Tech had no duty to
warn students of gunman, nixes jury award, ABA
JOURNAL (Oct. 31, 2013), http://www.abajournal.com.
53 Ambriz v. Kelegian, 146 Cal. App. 4th 1519, 1534
(2007).
8
Los Angeles Lawyer January 2015 35
closing argument
BY MITCHELL M. TSAI
Concerns about a CEQA Reform That Favors Multimodal Transportation
RECENT DEVELOPMENTS SHOW THAT REFORM of the California land uses.9 Agencies are provided no standards to decide which
Environmental Quality Act (CEQA) presents political risks that few approach to follow. For example, developing a shopping center on
public officials want to take without consensus.1 In response to sig- vacant land will significantly impact transportation compared to
nificant public interest, the Office of Planning and Research (OPR) existing conditions. However, a proposed shopping center may still
extended the public comment period for proposed CEQA alternative have insignificant VMT compared to neighboring shopping centers.
Finally, the regulations suggest that developers use experimental and
transportation metric regulations to November 21, 2014.2 The regulations were proposed in response to SB 743, a bill passed in Cali- difficult-to-quantify mitigation measures to lower VMT, with little direction to help quantify the actual impact. VMT may be mitigated by,
fornia’s 2013 legislative session.3
Primarily known for amending streamlined environmental review among other things, increasing access to common goods and serprocedures for state-designated development projects, SB 743 also vices, incorporating affordable housing, and improving the jobs/housmandated that “automobile delay, as described
solely by level of service,” (LOS) no longer be
considered a significant environmental impact.
The regulations suggest that developers use experimental
Instead, the bill directed an alternative transportation metric be implemented to “promote
the reduction of greenhouse gas emissions, the
and difficult-to-quantify mitigation measures to lower VMT.
development of multimodal transportation
networks [pedestrian, bicycle, and public transit], and a diversity of land uses.”4
The regulations propose replacing LOS with Vehicle Miles Traveled ing fit of a community. Yet the OPR provides public agencies with no
(VMT) as the method for analyzing transportation impacts.5 Unlike instruction on how to quantify the impact of these measures on VMT.
The OPR deliberately adopted a more flexible approach in deferLOS, which estimates the amount of traffic congestion that a proposed
project may generate, VMT focuses on the total amount of motor- ence to California’s public agencies.10 However, this increases the
ized vehicle travel created by a project.
costs and litigation risks inherent in such a significant regulatory
The change is positive. LOS analyzes auto congestion, not the change. The OPR drafted less detailed regulations, reasoning that since
environmental impacts of motor vehicle travel, including air pollution CEQA regulations “apply to all public agencies, and all projects,
and greenhouse gas emissions. The LOS standard discourages urban throughout the state, they generally must be drafted broadly.” 11
infill and multimodal transportation networks, requires costly road- Instead, the OPR must provide nonbinding guidance on VMT methodway expansion to maintain existing LOS levels, and impedes projects ology and mitigation while not preventing public agencies from adoptthat lower roadway capacity, including bike lanes and public transit. ing other approaches to ease the transition into VMT, improve the qualReplacing LOS with VMT refocuses CEQA analysis on the state’s goal ity of environmental analysis, and reduce potential disputes.
■
of reducing transportation-related greenhouse gas emissions by eval1 PUB. RES. CODE §21000–21189.3.
uating motor vehicle usage rather than traffic congestion.6
The regulations, however, omit critical details as to how VMT will 2 Office of Planning and Research, Review of a Preliminary Draft of Updates to the
work under CEQA. The OPR could ease the transition with additional CEQA Guidelines Implementing Senate Bill 743—Comment period change to Nov.
21, 2014 (2014); see, e.g., http://www.opr.ca.gov/s_sb743.php.
guidance. Legal uncertainties in the CEQA process often promote poor 3
S.B. 743, 2013 Cal. Stat. 95 (codified in scattered sections of Government Code
environmental review and result in costly litigation. By clarifying the and Public Resources Code).
VMT analysis in the regulations, these reviews would provide proj- 4 Id., §§1(a)(2), 5(b)(2).
5 Office of Planning and Research, Updating Transportation Impacts Analysis in the
ect proponents with reasonable certainty against litigation claims.
The regulations lack specificity in developing VMT data. Nearly CEQA Guidelines: Preliminary Discussion Drafts of Updates to the CEQA Guidelines
Implementing Senate Bill 743 at 13 (Steinberg, 2013) (2014) [hereinafter Discussion
20 different methods can be used to calculate data that “range in comDrafts], available at http://www.opr.ca.gov.
plexity and sensitivity.” Worse, public agencies may arbitrarily adjust 6 See S.B. No. 375, 2008 Cal. Stat. 85 (codified in scattered sections of Government
VMT models.7 In contrast, LOS is limited to two well-established mod- Code and Public Resources Code).
els—Circular 212 and the Highway Capacity Manual.8 Without a 7 Discussion Drafts, supra note 5, at 36-45.
widely accepted industry standard, VMT model selection could be 8 See GOVT. CODE §65089.
9 Discussion Drafts, supra note 5, at 13.
manipulated and encourage litigation.
10 Id. at 6, 19.
The regulations also fail to adequately explain how to determine 11 Id. at 6.
when a project’s impact on transportation is significant. The OPR offers
two different methods in making this determination—comparing a Mitchell M. Tsai practices environmental, land use, and real estate law in
project’s VMT to existing conditions or regional average for similar Pasadena.
36 Los Angeles Lawyer January 2015
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