Park Assessment Fails To Comply With Prop. 218

In Beutz v. County of Riverside (here), the Court of Appeal held that a park assessment failed to comply with the requirements of Article XIII D, Section 4, part of Proposition 218. The court first held that the county had failed to separate the general benefit from the special benefit provided by the improvements in question (park landscaping) and also failed to spread the special benefit proportionately among the assessees (all of whom paid an equal assessment). In short, the opinion gives teeth to the requirements of Prop. 218, insofar as they relate to assessments.

SLAPPing "Mixed" Causes Of Action

What happens when only a small part of a cause of action is subject to strike under the anti-SLAPP statute? That's the question underlying the debate in Haight-Ashbury Free Clinics, Inc. v. Happening House Ventures (here). The plaintiff alleged a claim for breach of fiduciary duty, based on sixteen acts, two of which were found protected under the anti-SLAPP statute. The majority opinion dismissed the whole cause of action, because the plaintiff had failed to show that it could succeed on any part of its claim, whether based on protected or unprotected activity. The concurring and dissenting opinion would have dismissed only the portion of the claim based on protected activity, which seems right to me.

Arbitration Clause Not Enforceable On Homeowners' Association

In Villa Vicenza Homeowners Ass'n v. Nobel Court Development, LLC (here), the Court of Appeal held that an arbitration clause recorded in CC&Rs was not enforceable in a suit brought by a homeowners' association against a developer. Because the clause was subject to the Federal Arbitration Act, the court was not bound by the holdings in Grafton Partners v. Superior Court (in which we represented the petitioner), which holds that predispute jury waivers are unenforceable except as specifically authorized by the Legislature, or Treo @ Kettner Homeowners Assn. v. Superior Court, which held that a homeowners association was not bound by a judicial reference agreement contained in CC&Rs. Nevertheless, the court held that both federal law and state law refuse to enforce arbitration clauses against non-signatories, and the homeowners association had never agreed to arbitrate a dispute against the developer.

Palin Resists Disclosure Of Speaking Fee

This is too good to pass up. Go, CFAC! (The story is here.)

Change The Two-Thirds Budget Requirement? Not Likely

For the obvious reason that a proposed constitutional amendment to change the two-thirds vote requirement for enacting a budget itself requires a two-thirds vote. Calbuzz reports here.

No Damages For Violating Right to Petition

In MHC Financing Limited Partnership Two v. City of Santee (here), the Court of Appeal has held that compensatory damages are unavailable for a violation of Article I, Section 3(a), which grants the “right to petition.” This holding is neither novel nor surprising. The California Supreme Court had already held in Katzberg v. Regents of the University of California, 29 Cal. 4th 300 (2002), that damages are not available for a violation of the California Constitution’s due process clause, and similarly held in Degrassi v. Cook, 29 Cal. 4th 333 (2002), that damages are not available for a violation of the California Constitution’s free speech provision. The MHC decision arises in a unique factual setting (the city council had enacted the wrong initiative), and comports with existing precedent. It therefore is an unlikely candidate for California Supreme Court review.

Court Upholds LAX Solicitation Ban, Ducks "Public Forum" Issue

In ISKCON v. City of Los Angeles (here), the California Supreme Court held that a ban on "Immediate solicitation" (i.e., soliciting an immediate contribution) in the public areas of Los Angeles Airport was a reasonable time, place and manner restriction, regardless of whether these areas constituted a "public forum" under the "liberty of speech" clause of the California Constitution (art. I, sec. 2(a)). The Court's earlier decision in Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000), had held that a ban on solicitation was not content-based. As a result, the solicitation ban at issue in ISKCON only had to satisfy the less exacting standards applicable to content-neutral time, place and manner restrictions--i.e., that they be narrowly tailored, serve a significant governmental interest and leave open ample alternative means of communication.

The Court first held that the narrow tailoring requirement does not incorporate a "less drastic alternative" standard--i.e., the government need not prove that no less speech-restricting alternative would further the same interest. Instead, it requires only that the challenged law promote a substantial governmental interest that would be achieved less effectively absent the regulation. The solicitation ban met this requirement (it's hard to imagine an ordinance that wouldn't) in light of the special intrusiveness of requests for an immediate donation of funds and the "often crowded and hectic environment of a large international airport." Moreover, solicitation of funds creates problems of duress and fraud that other speech does not. The Court rejected the district court's finding that these interests could only justify a ban on solicitation during peak hours or in busy locations, because these times and locations vary. Finally, the court held that the ban left open ample alternative means of communication; the plaintiff could solicit funds elsewhere and could even solicit in the airport as long as they did not ask for an immediate donation of money.

Justice Kennard concurred. She dissented in Los Angeles Alliance for Survival v. City of Los Angeles, and continued to believe that a solicitation ban was content-based. But, given that decision, she concurred that the solicitation ban met the time, place and manner standard. Indeed, she said so forcefully, stating that "[s]peech activities at airports that interfere with the legitimate interests of the airport management, arriving or departing passengers, or airline or airport employees need not be tolerated." She also indicated, somewhat contradictorily, that she viewed the public areas of LAX as a public forum. So, despite her strong language, it's not clear how she would have voted had she not been compelled to follow Los Angeles Alliance for Survival.

Justices Chin, Baxter and Corrigan also concurred, taking the opposite tack from Justice Kennard. They would have held that the common areas of LAX are not a public forum. Accordingly, they had no problem upholding the no-solicitation ban.

This opinion conforms California law to federal law in analyzing time, place and manner restrictions. Accordingly, it may have a broad impact outside the somewhat special context of airport speech.