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’s courts have frequently addressed a party’s due process rights to a fair and impartial decision maker in quasi-judicial proceedings, holding that during such proceedings there must be separation of prosecutorial functions from advisory functions. Those cases do not, however, address the litigation conduct of an administrative agency and its staff when (1) the agency is a party to litigation and, thus, not acting as a decision maker, and (2) staff’s participation cannot affect the fairness and impartiality of the decision maker, which is the court.

On October 28, 2016, in a case of first impression, the Court of Appeal for the First Appellate District ruled that the participation of California Coastal Commission staff members in litigation after they advocated for enforcement orders against Drakes Bay Oyster Company in Commission proceedings does not violate the company’s due process rights. Drakes Bay Oyster Company v. California Coastal Commission, __ Cal.App.5th __ (2016) (Case No. A142820).

Continue Reading Court Rules that California Coastal Commission Staff Members who Participate in Enforcement Proceedings Before the Agency May Also Participate in Related Litigation

On October 13, 2016, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a demurrer filed on behalf of Governor Jerry Brown following his concurrence with the Secretary of the Interior to allow a gaming facility in Yuba County. United Auburn Indian Community of the Auburn Rancheria v. Brown, __ Cal.App.5th __ (2016) (Case No. C075126).

Continue Reading Gubernatorial Action that has Land Use Consequences is not a an Illegal Exercise of Legislative Power

California’s housing crisis is well-understood and documented.  A chief culprit is the fact that the state’s coastal urban areas, for various reasons, do not approve enough new housing to accommodate everyone who seeks to live there.

The lack of new housing development is a function, in part, of the fact that California’s local finance structure essentially incentivizes nonresidential development.  There is also limited vacant developable land in coastal urban areas.

Continue Reading Recent Reports Highlight Negative Consequences of Local Barriers to New Housing Development, Call for State-Level Solutions

On September 28, 2016, the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a petition for writ of administrative mandamus filed by the owner of a nude entertainment business to challenge the City of San Diego’s revocation of her permit. Coe v. City of San Diego, __ Cal.App.5th __ (2016) (Case No. D068814).

Continue Reading Court Affirms Trial Court’s Denial of Writ of Administrative Mandamus Challenging City’s Revocation of Nude Entertainment Permit

On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents  does not waive the attorney-client and attorney work product privileges.  Ardon v. City of Los Angeles, 62 Cal.4th 1176 (2016).  The privileges are only waived when the disclosure of otherwise confidential public records is intentional.

Continue Reading Accidental Disclosure Of Public Records Does Not Waive The Attorney-Client And Attorney Work Product Privileges

On July 28, 2016, in a case of first impression, the Court of Appeal for the Sixth Appellate District held that labor costs for attorneys and paralegals to prepare the administrative record in a land use case are recoverable as expenses under Code of Civil Procedure 1094.5.

The case, No Toxic Air, Inc. v. Lehigh Southwest Cement Company, __ Cal.App.4th __ (2016) (Case No.H040047), arose over the Santa Clara County Board of Supervisors’ decision, in 2011, finding that the Permanente Quarry’s 3,510 acre surface mining operation, producing limestone and aggregate for the manufacture of cement, is a legal nonconforming use.  The quarry has been in operation since 1903 and has expanded substantially since The Permanente Corporation purchased it in 1939, opening new mining areas on the property and acquiring adjacent parcels.

Continue Reading Prevailing Parties in Land Use Litigation May Recover Attorney’s Fees for Preparation of Administrative Record

The location of several National Football League franchises have been in flux for years, with teams such as the Chargers, Raiders, and Rams seeking modern, amenity-laden stadiums they have been unable to attain in their current locations. Although earlier this year the NFL approved the relocation of the Rams from St. Louis to Inglewood, the repercussions of the league’s decision to bypass Carson in favor of Inglewood continue to play out.

On May 31, 2016, in Rand Resources, LLC v. City of Carson, __ Cal.App.4th __ (2016) (Case No. B264493), the Court of Appeal for the Second Appellate District rejected Carson’s attempt to use California’s anti-SLAPP statute to defend a breach of contract claim. Carson had wanted to develop a new sports and entertainment complex, including a football stadium, to attract one, or even two, NFL franchises to the community. To advance that goal, the City entered into an exclusive agreement with Richard Rand and several entities to serve as the City’s exclusive agent in coordinating and negotiating with the NFL.

Continue Reading Court Rejects City’s Anti-SLAPP Claim Regarding Would-Be NFL Stadium in Carson