The attorney-client privilege protects communications made in confidence by a client to its attorney for the purpose of obtaining legal advice.  The privilege can extent to consultants and experts hired by the attorney on behalf of a client so long as the communication involves the subject matter about which the attorney was consulted and the consultant or expert was retained by the attorney to assist the attorney in providing legal advice to the client.

A recent decision out of an Indiana federal court shows the limitations of the attorney-client privilege in this context, wherein communications made in the routine course of business that contain no privileged information and that are devoid of legal advice or requests for advice are not protected and can be discovered.

Continue Reading Court Holds that Attorney-Client Privilege Extends to Environmental Consultants Hired by an Attorney on Behalf of a Client, but Only to the Extent Communications are Made for the Purpose of Obtaining Legal Advice from the Attorney

California provides relatively short statutes of limitations for challenges in the land use context. For example, Government Code section 65009(c)(1) provides that “no action or proceeding shall be maintained [for a wide range of development approvals] by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision . . . .”  Under section 65009(c)(1)(E), any challenge to a “variance, conditional use permit, or any other permit” must be made within 90 days of the decision.  And section 65009(e) provides that once the time limit has expired “all persons are barred from any further action or proceeding.”

These types of short limitations periods are intended to provide certainty for property owners and local governments regarding land use decisions and to alleviate the chilling effect on the confidence with which property owners and local governments can proceed with projects  involving potential legal challenges to land use decisions.

Continue Reading Court Rejects Late Challenge to Permits for New Lifeguard Station on San Diego’s Mission Beach

Vampire Weekend may not “give a f— about an Oxford comma,” but I certainly do.  And so, too, does the United States Court of Appeals for the First Circuit, which opened a recent opinion, in a class action lawsuit about overtime pay for a dairy company’s delivery drivers, with these words:

“For want of a comma, we have this case.”

Also known as the serial comma, the Oxford comma is the comma after the second-to-last item in a list of three or more things.  It is, in other words, the comma that precedes the words “and” or “or.”

Continue Reading The Case of the Missing $10M Oxford Comma

Boundary disputes are one of the most actively litigated areas of real property law.  One common category of such disputes involves the trimming of a neighbor’s tree, either to remove branches that have grown over a property line or to maintain or improve views.  While California law generally provides no right to an unobstructed view, an issue we previously addressed here, an adjoining landowner may reasonably trim the branches of a neighbor’s tree to the property line.  Adjoining landowners may not, however, enter a neighbor’s property to abate the encroachment, and the potential cost of doing so just increased substantially.

On January 31, 2017, in a case of first impression, the Court of Appeal for the Second Appellate District ruled that annoyance and discomfort damages resulting from tortious injuries to timber or trees are subject to the statutory damage multiplier.  Fulle v. Kanani, __ Cal.App.5th __ (2016) (Case No. B271240).  The case involved contiguous properties, separated by a fence, in a hillside neighborhood of Encino.  The plaintiff’s property contained five mature eucalyptus trees and a black walnut tree, all of which provided her with aesthetic benefits, shade, and privacy.  The trees also partially blocked the defendant’s view of the San Fernando Valley.  Shortly after acquiring his property, the defendant hired a work crew that entered the plaintiff’s property without her permission, cut the trees to approximately half their height, and removed all of their branches.

Continue Reading Annoyance and Discomfort Damages Resulting from Injury to Trees are Subject to the Statutory Damage Multiplier

On January 24, 2017, the Court of Appeal for the Sixth Appellate District interpreted Government Code section 53094 and held that, unlike school districts, county boards of education cannot be exempted from local zoning requirements.  San Jose Unified School District v. Santa Clara County Office of Education, __ Cal.App.5th __ (2016) (Case No. H041088).

Section 53094 authorizes “the governing board of a school district” to “render a city or county zoning ordinance inapplicable to a proposed use of property by the school district,” under certain circumstances.  Through the adoption of section 53094, the legislature intended to forestall local obstruction of state-sanctioned school construction and school location.

Continue Reading County Boards of Education Cannot be Exempted from Local Zoning Requirements

On November 10, 2016, the U.S. Department of Housing and Urban Development and the U.S. Department of Justice released a “Joint Statement” providing updated guidance on the application of the federal Fair Housing Act to state and local land use laws and practices.

The FHA prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability.  Among other things, the FHA applies to local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The FHA does not pre-empt local zoning laws, however, which are is traditionally reserved to state and local governments, except to the extent such laws may conflict with requirements imposed by the FHA or other federal laws.

Continue Reading HUD and DOJ Release Updated Joint Statement on “State and Local Land Use Laws and Practices and the Application of the Fair Housing Act”