August 2016 - Issue 54

Educational Forum: Weathering the Storm

Member Agency Training Plans

Workers’ Compensation 101 Training

Soccer Field in Oasis Opens to the Delight of Local Residents

Proposed Criminal-Record Rules in California Raise Challenges for Employers

The Coming and Going Rule

Court of Appeal Tosses Order That City Refund Marijuana Penalties

Court Orders New Trial in Anaheim Police Shooting Case

Court of Appeal Rejects Brown Act Suit Against City Council as SLAPP

Ransomware and Phishing

News: Worthy

Educational Forum: Weathering the Storm

Storms rage in the world of risk, and the Authority has always considered its business partners to be of strategic importance. This is true with respect to how these partners work jointly with members in managing risk. It also pertains to the role our partners play in underwriting a significant portion of the Authority’s Risk Management Educational Forum.

This year is no exception, and these partnerships have allowed us to continue to deliver an exceptional educational experience for members from throughout the state of California.

Coupled with the Executive Committee’s ongoing support of waiving registration fees for members, sponsorships make a difference for those who would not otherwise be able to attend.

We deeply appreciate the role of our strategic partners in supporting educational opportunities to members. 

California Level
Alliant Insurance Services Inc.
Brit Global Specialty USA
Carl Warren & Company
Grossberg & Hoehn
Markel Corporation – Public Entity Division
Vericlaim Inc.
York Risk Services Group, Inc. 

Catalina Level
AmWINS Insurance Brokerage of California, LLC
Burke, Williams & Sorenson, LLP
JLTRe (North America) Inc.
Kessel & Associates
Kutak Rock LLP

El Capitan Level
Berkley Public Entity Managers
Law Offices of Scott C. Haith, APLC
Poms & Associates
Safety National Casualty Corporation
Siegel, Moreno & Stettler, APC
Wells Fargo Insurance Services USA Inc.
Wesierski & Zurek LLP

Sierra Level
Arthur J. Gallagher
Declues, Burkett & Thompson LLP
Great American Insurance Company
Hayford & Felchlin, LLP
Ironshore Insurance
Law Offices of Michael R. Nebenzahl, APC
McCormick, Mitchell & Rasmussen APC
Norman Peterson & Associates
PFM Asset Management LLC
Risk Placement Services, Inc.
RJN Investigations
Robert Robin & Associates 

Mojave Level
Daley & Heft, LLP
Goldman, Magdalin & Krikes, LLP
Law Offices of Barber & Bauermeister
Law Offices of S. Henslee Smith
Mainstream Unlimited
Pollak, Vida & Fisher
Procter & Shyer

News: Worthy

Member Agency Training Plans

By Ryan Thomas, Training and Loss Control Specialist

For the past few years, Authority staff has worked with individual member agencies to schedule training.  In an effort to ensure that training is deployed regionally in a more efficient and cost effective manner across the entire membership, the Authority’s Training Division is embarking on a more collaborative and proactive regional training model.

During the month of August and September, each member agency will be asked to review its current employee roster as provided by e-mail to human resources contacts for each member agency.  Each member agency will be asked to update its employee listing with any additions, deletions, or de-activations and e-mail it to Training Division staff. 

During October, Training Coordinator Michelle Aguayo will contact member agencies that have provided their updated lists, as well as other agencies within the training region, to set up regional trainings for the entire calendar year.  The agencies that respond to the requests to schedule trainings will be more likely to get the dates that they desire for training. 

Please ensure that your agency acts quickly to work with Michelle to schedule training.  Should an agency not respond to requests to participate in the regional training process, that agency may be required to attend already scheduled training dates within the training region.

With this new process, the training calendar for the entire membership will be developed by November for the 2017 calendar year.  This will lead to more efficient and effective scheduling of trainings and should limit the amount of additionally scheduled trainings necessary throughout the remainder of the year.  For more information about annual training plans or to discuss your agency’s training needs, please contact Ryan Thomas, Training and Loss Control Specialist.

News: Worthy

Workers’ Compensation 101 Training

By Jeff Rush, Workers’ Compensation Program Manager

Did you know the California JPIA offers workers’ compensation training that can be customized to meet your agency’s needs?  The Workers’ Compensation 101 workshop is geared toward managers and supervisors, as well as people new to risk management and human resources.  This class provides an overview of the workers’ compensation system including the following topics:

  • The employer’s role before and after an injury
  • The employee’s responsibilities when they sustain an injury or illness
  • What is involved in investigating a claim
  • The benefits available to injured employees
  • When to report an injury to Cal/OSHA

The Workers’ Compensation 101 workshop typically lasts about 45 minutes, and the curriculum can be customized to meet your agency’s needs.  For those senior managers that benefit from additional training, the Authority offers Workers’ Compensation 201 that goes in depth on more sensitive topics including:

  • Accommodating disabled employees
  • The impact of litigation
  • How York and the California JPIA handle claims involving suspected fraud
  • The factors that affect the settlement of claims
  • Who an employer should contact when concerns arise

The Workers’ Compensation 201 workshop also lasts about 45 minutes and can be offered independently or in conjunction with the Workers’ Compensation 101 class.  To schedule either workshop for your staff, please contact Jeff Rush, Workers’ Compensation Program Manager.

Re: Members

Soccer Field in Oasis Opens to the Delight of Local Residents

(Press Release from Desert Recreation District)

Desert Recreation District (DRD) is opening a new soccer field in the unincorporated community of Oasis and the public is invited to come celebrate. On Thursday, September 8, 2016, DRD will host a grand opening event beginning at 6:00 p.m. during which recognition to those whose hard work contributed to reaching this milestone will be acknowledged, refreshments will be served, and play will begin.

The soccer field is located at 88-775 Avenue 76 (between Pierce and Harrison streets) in Oasis. The former elementary school site was purchased by DRD from the Coachella Valley Unified School District to build a 15-acre community park. This is the first and only public park in the community of Oasis. The soccer field is a temporary measure to provide immediate access to the number one requested activity in the Oasis community, soccer. Other amenities that will round out the future park will be planned by the community over the coming months. People can sign up for the Community Design Team as well as register for the Fall season of the new East Valley Soccer League while at the grand opening.

Support from the community has been very strong, and as one resident of the area, Pastor Miguel Martinez stated last Fall, “we are thrilled.” Pastor Martinez went on to say that when communities do not have activities for the younger members, it is unhealthy for everyone as children are more likely to get into trouble, have medical problems, and not feel safe, among other issues. Inland Congregations United for Change (ICUC), whose efforts to bring people together to strengthen families and improve communities, has also lent its support to DRD.

The project will be completed in phases based on community input to determine the priority facilities to be included by the time the project is completed. DRD is still in the process of securing funding for the complete build-out of the project. The Desert Recreation Foundation, our 501(c)3 supporting charity, is actively seeking grants and private donations to aid in the completion of this project. Please call Kevin Kalman at (760) 347-3484 if you would like to get involved to help raise funds or to make a tax deductible donation to this project.

For more information on Desert Recreation District programs and activities, check out the website at: or pick up a local Activities Guide at DRD Community Centers in Palm Desert, Thousand Palms, Bermuda Dunes, La Quinta, Indio, Indio Hills, Coachella, Mecca, Thermal, and North Shore or at DRD’s Administrative office in Indio.

Legal Matters

Proposed Criminal-Record Rules in California Raise Challenges for Employers

(Reprinted from the Society of Human Resource Management, August 16, 2016)

Many states and cities have recently passed "ban-the-box" measures that require employers to remove criminal-record questions from job applications and reserve those inquiries for a later point in the hiring process.

Proposed regulations from the California Fair Employment and Housing Council (FEHC), however, would prohibit employers from using criminal background reports if members of a particular race, national origin or other protected category were disproportionately affected. The reports could be used only if they were job-related and consistent with business necessity.

Employers in California would have to show that their screening practices were "appropriately tailored" to the job, according to the proposed regulations. The rules would also limit the use of blanket policies that exclude all applicants with a particular criminal conviction.  

"Employers in a lot of industries will have a difficult time with the burden that these regulations will impose," said Alden Parker, an attorney with Fisher Phillips in Sacramento, Calif.

Employers will be reluctant to inquire about such information during the hiring, selection or promotion process in order to avoid a claim of discrimination, said the Society for Human Resource Management (SHRM) and the California Chamber of Commerce in a comment letter to the FEHC. Yet employers may also increase their risk of being sued for negligent hiring, according to the letter.

Impact on Protected Groups

The main change in the FEHC's proposal is that it provides guidance on how the use of criminal background checks might create an adverse impact on applicants based on race, age, national origin or other protected categories, said Matthew Goodin, an attorney with Epstein Becker & Green in San Francisco.

In April 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance on how employers can use criminal records in employment decisions.

The proposed California regulations "essentially mirror EEOC regulations and prohibit the consideration of criminal backgrounds in employment decisions if doing so would create an adverse impact on an individual within a protected group, unless the employer can demonstrate that considering the criminal history is job-related and consistent with business necessity," Goodin explained.

Even if these criteria were met, an employer could still face liability if an applicant could show there is a less discriminatory way to meet the business's needs.

Under the proposed regulations, criminal convictions of a certain type, such as assault and battery, might not preclude someone from getting a job as a cashier at a restaurant, whereas a theft conviction might, Parker explained.

Employers wouldn't be able to simply conduct a "pass or fail" screen, he said. They would be required to go much deeper into the background and see if the offenses are reasonably related to the job.

EEOC Guidance Challenged

The EEOC guidance—which the FEHC used to create the proposed regulations—currently faces a court challenge. The state of Texas filed a lawsuit claiming that the agency exceeded its regulatory authority under Title VII of the Civil Rights Act of 1964.

The EEOC's guidance says that "categorical bans on the hiring of felons can constitute a violation of Title VII when they disproportionately affect" black and Hispanic workers.

This conflicts with many state agencies' blanket policies against hiring convicted felons or applicants with certain misdemeanor convictions.

The 5th U.S. Circuit Court of Appeals recently gave Texas the green light to pursue the lawsuit, holding that "the guidance forces Texas to alter its hiring policies or incur significant costs."

A federal district court has yet to decide the underlying question of whether the agency's guidance exceeds its authority under Title VII.

Just as Texas argued that the EEOC exceeded its authority, SHRM believes there is no legal authority for the proposed regulations in California.

"Given that the proposed regulations are so heavily based upon the EEOC guidance, these regulations should be withdrawn until the final determination of this litigation," SHRM said in its comment letter.

Existing Rules Incorporated

The proposed regulations incorporate rules under the existing law that prevent employers from asking about an arrest or detention that did not result in a conviction, a referral to or participation in a pretrial or post-trial diversion program, or a conviction that has been judicially dismissed, sealed, expunged or statutorily eradicated.

Existing regulations also preclude inquiries about certain marijuana offenses that are more than two years old. However, the proposed changes would expand this to prevent employers from considering any non-felony conviction for marijuana that is two or more years old.

Review Practices

"The regulations are not final yet and may be amended before enactment. So, while employers need not do anything now, they should be prepared for these new regulations to go into effect," Goodin said.

Employers should "prepare to train managers, particularly those involved in hiring decisions, as to the new restrictions," he added. "Inquiries about criminal convictions should be limited to convictions that would exclude someone from a particular position due to business needs."

Parker said employers should review their job descriptions to make sure they reflect the tasks that employees are actually performing. For example, he said, if the position involves cash handling, that should be included in the job description. This may be relevant when considering whether a theft conviction is job-related.

Additionally, "employers should document justifications for considering criminal convictions in connection with any particular positions, and should document the reasons for any decision in which an employee or applicant is refused a particular job due to a criminal conviction," Goodin explained.

Legal Matters

The Coming and Going Rule

By Paul Zeglovitch, Liability Program Manager

The “coming and going” rule is an important concept in many motor vehicle accidents. It is used to determine whether or not an employee who is injured in a motor vehicle collision while traveling to or from work may be covered by their employer’s workers’ compensation benefits for their own injuries, as well as whether their employer’s liability coverage may apply to third parties injured in the accident when the employee is found at fault.  At a first look, the “coming and going rule” appears straightforward:  If an employee is either coming to work or going home from work, there is no coverage for the employee under workers’ compensation nor is there liability to the public agency employer.  This rule also applies when employees are coming from and going to a personal meal break.  The analysis can, however, get more complex when variables such as job duties and the type of vehicle that is being driven come into play.

Scenarios that would provide for an exception to the “coming and going rule” occur when an employee is running errands, making a delivery, or shopping for the employer at the time that the accident occurs.  This type of activity could take place either on the way to work or on the way home and, in that instance, the “coming and going rule” does not apply, and coverage is likely available. In other instances, where the worker is driving to an offsite job-related activity prior to or after reporting to the office, the rule would also most likely not apply.  Further, when an employee does not have a regular, specific work location, and drives from one client location to another client location the rule may not apply.  In these types of cases, the test will frequently involve the questions: “Was the employee doing something to further the employer’s business?” or “Will the employer receive some incidental benefit from the employee’s trip?”

To further illustrate the above point relative to trips that benefit the employer, we turn to the case of Lobo v. Tamco.  In Lobo, Tamco employee, Del Rosario, had finished his shift for the day at Tamco’s manufacturing location.  As Del Rosario drove his car out of the company driveway and on to a public street, he failed to notice three motorcycle officers approaching with their lights and sirens activated. Unfortunately, the collision resulted in the death of Officer Lobo.  Lobo’s family sued Del Rosario’s employer, Tamco, citing that he was in the course and scope of his employment. Summary judgement was granted in favor of Tamco due to the “coming and going rule.”  Lobo appealed and the ruling on the summary judgement was reversed.  The court found that, while Del Rosario may have been simply leaving work to go home that day, he did, on occasion, use his personal vehicle for work purposes.  It was established that as a Quality Control Metallurgist, Del Rosario’s job description indicated that he was to “answer all customer complaints and if necessary, visit customers’ facilities to gain information and/or maintain customer relations.”  Del Rosario testified that he had used his car approximately 10 times in 16 years for this purpose.  For these reasons, the “coming and going rule” was found not to apply. This exception to the “coming and going rule” is referred to as the “required vehicle” exception. 

In order to best avoid the Lobo scenario, the Authority recommends that members have a policy that provides for mileage reimbursement for employees who use their personal vehicles for member business and that the policy mandate that the employee carry a minimum of 100/300 liability limits for that vehicle.  In the State of California, it is the vehicle’s insurance that will be primary and the member’s coverage would then become excess in the event of a serious collision.  In addition, the member should examine the DMV records of any new hires and also enroll in a DMV program that will provide notifications of infractions for any employees that are required to drive either a personal or member owned vehicle.

For employees that are driving member-owned vehicles, with the permission of the member, the analysis is generally very clear.  The member will provide coverage, as the legal owner of the vehicle involved.  In instances where the member feels that the policies of that entity strongly prohibit the use of the vehicle during evenings and weekends and that is when the accident occurs, we suggest contacting the Authority and counsel to evaluate whether a denial of coverage will be appropriate.  If you have questions about the coming and going rule, contact Paul Zeglovitch, Liability Program Manager.

The Court Report 

Court of Appeal Tosses Order That City Refund Marijuana Penalties

(Reprinted from the Metropolitan News Enterprise, August 8, 2016)

City Cannot Be Forced to Return Funds Seized by Federal Government, Panel Says

A city that levied penalties against a medical marijuana facility in excess of the amounts its ordinance allowed was not required to refund amounts that were seized from the city by the federal government, the Fourth District Court of Appeal ruled Friday.

“The federal government, in an in rem proceeding, had seized and declared forfeited a cashier’s check representing the money deposited with the City [of Beaumont], and it is undisputed that Oak Tree [Alternative Care] never contested the federal asset seizure proceeding,” Justice Richard Fybel of Div. Three explained in an unpublished opinion. “Thus, when the seized deposits were declared forfeited, title to them passed to the federal government.  Simply put, the City had nothing it could refund to Oak Tree.”

The panel agreed with Oak Tree that the city violated its own ordinance by collecting $664,000 in penalties, which were limited to $100,000 by the legislation. But it overturned Riverside Superior Court Judge John Vineyard’s order that the city refund $564,000 to the dispensary, and also held that the city was the prevailing party in the mandamus action.

The case was sent back to the trial court to determine the amount the city should be awarded in attorney fees.

City Ordinance

The dispute goes back to 2009, when Oak Tree incorporated as a California nonprofit mutual benefit corporation and leased premises in Beaumont, commencing operations in August of that year, three months after the city’s council enacted an ordinance banning medical marijuana dispensaries from operating in the city.

City officials promptly cited Oak Tree for operating a dispensary in violation of the ordinance and operating a business without a license. Additional citations were issued daily between August 2009 and November 2010, with fines beginning at $100 per day and then increased to $500 per day in late August and $1,000 per day in September 2009.

The dispensary filed administrative objections and began depositing the penalties. In March 2011, a hearing officer concluded he lacked authority to hear constitutional objections and ruled that Oak Tree was operating in violation of the ordinance, upholding the penalties. Oak Tree ceased operating in June 2011 when it was raided by a task force of sheriff’s deputies and local police officers from around the county.

Four months after the raid, a federal district judge issued a warrant commanding the Department of Homeland Security to seize the $664,000 in penalties paid by Oak Tree. In May 2012, the department declared the cashier’s check used by Oak Tree to pay the penalties—which had been seized three months earlier—forfeited.

Oak Tree, which had petitioned in state court for a writ of mandate a year earlier, did not contest the federal summary forfeiture proceeding.

Refund Ordered

In the state case, Vineyard ruled that the maximum the city could collect was $100,000, and that Oak Tree was entitled to a refund of the balance. He also denied the city’s motion for attorney fees, which were sought under statutes allowing recovery of fees in administrative cases when provided for by local ordinance.

Fybel, however, said the trial judge had no jurisdiction to order the city to return money it did not have, and lacked title to. Once the forfeiture was declared, and because Oak Tree did not contest the forfeiture, title passed to the federal government, the justice said.

He rejected Oak Tree’s argument that the state court had jurisdiction over the money because it was in the city’s exclusive possession up until it was seized.

‘Ownership Interest’

The dispensary “very much claimed an ownership interest in the deposited penalties and sought their return,” the jurist noted.

He continued:

“Oak Tree does not deny that the deposited penalties constituted a res that could be seized; indeed, Oak Tree argues the penalties were a res that was subject to superior court in rem jurisdiction.  The cashier’s check, though apparently written with the City as the payor, represented $664,000 Oak Tree had deposited as fines.  Oak Tree does not dispute the $664,000 derived from activity or transactions rendering the money subject to forfeiture….The federal authorities treated the deposited penalties as a res subject to seizure.  Oak Tree, by failing to file a claim and defaulting in the federal forfeiture proceeding, conceded that to be the case and abandoned any claim of ownership to the deposited penalties represented by the cashier’s check.”

As for the attorney fee issue, Fybel said the city, being entitled to a net monetary recovery under the panel ruling, was necessarily the prevailing party and thus entitled to recover both ordinary costs and attorney fees.

The case is Oak Tree Alternative Care v. City of Beaumont Office of Administrative Appeals (City of Beaumont), G052266.

The Court Report

Court Orders New Trial in Anaheim Police Shooting Case

(Reprinted from the Metropolitan News Enterprise, August 25, 2016)

A federal district judge erred in allowing wide-ranging and prejudicial evidence about a shooting victim’s alleged gang membership to permeate the trial of his family’s wrongful death suit against the City of Anaheim and the officer who shot him, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

U.S. District Judge James V. Selna of the Central District of California correctly issued pretrial rulings limiting the extent to which the city’s lawyers could use Manuel Diaz’s affiliation against him, Judge John B. Owens explained. But by trying liability and damages together, Selna—who ruled that gang affiliation was admissible only as to damages—made it possible for the city to present “considerable and inflammatory evidence that had nothing to do with” whether the shooting was justified, Owens said.

“Police shootings are often the most difficult—and divisive—cases that our legal system and society encounter,” the appellate jurist wrote. “Wrapped in strong emotion and often opaque case law, they can perplex even our most experienced trial judges, like the judge in this case. To avoid the runaway case—like this one, where the Defendants and their witnesses repeatedly overstepped the judge’s rulings—courts should use bifurcation to corral lawyers and witnesses, so the jury hears only evidence relevant to the issues at hand.”

The July 2012 shooting of Diaz, 25, by Officer Nick Bennallack came the day before another Hispanic was shot by another officer, leading to several days of unrest in the city. Diaz’s mother, Genevieve Huizar, sued the city for wrongful death and violation of her son’s constitutional right to be free from excessive police force.

Federal Trial

The action was filed in Orange Superior Court and removed to federal district court, where Bennallack and Officer Brett Heitmann testified that they saw Diaz and another man standing near a parked vehicle in an alley in a gang-infested area of the city. Bennallack said he suspected something was amiss, because Diaz was dressed like a gang member.

Diaz ran and the officers pursued him on foot, with Bennallack testifying he intended to arrest him for resisting an officer, a misdemeanor. The officers said they could not see Diaz’s hands, but Bennallack claimed he thought his hands were in his waistband.

The officers said Diaz ignored their commands to stop, and that they feared he was attempting to lure them into a trap because he could have exited the alley onto a street, but didn’t. Bennallack said he saw a black cloth object being thrown over a fence close to Diaz, that he believed Diaz had a gun in a “low-ready” position and was about to fire, and that as Diaz turned, he saw the object in the air and fired twice. 

Bennallack said he could not see any part of Diaz’s arms or hands when he shot him. One bullet entered his buttock and the other hit him above his ear.

He died a short time later in the hospital. A black cell phone and a narcotics pipe, but no weapon, was found nearby.

Bennallack was returned to duty two weeks after the shootings, and the District Attorney’s Office cleared him of any wrongdoing. News accounts said he has also been involved in two other fatal shootings.

Motions in Limine

In ruling on a number of motions in limine, Selna said that Daniel Gonzalez, a gang expert, could testify as relevant to the non-economic damages sought by the plaintiff, who alleged loss of her son’s love, companionship, care and moral support. The judge noted that the relevance of the issue was limited, and said any testimony should be brief.

The judge agreed to bifurcate the issue of punitive damages, but rejected the plaintiff’s argument that allowing compensatory damages and liability to be tried in a single phase would lead to evidence of Diaz’s gang membership, along with related photos and testimony about his drug use, being admitted despite its lack of probative value as to the central question of excessive force.

Jurors returned a defense verdict after less than two hours of deliberations at the end of a six-day trial.

What was “most troubling” about the trial, Owens wrote yesterday, was the “highly prejudicial” testimony of the gang expert. The district judge recognized there was a problem, Owens explained, by giving a limiting instruction at the end of the testimony.

Owens, however, questioned the adequacy of that instruction, noting that Gonzalez was allowed to testify that gang members carry guns to demonstrate that they are “against law enforcement,” and that the area in which the shooting occurred was a center of gang activity, even though the judge had previously excluded such testimony.

Instead of giving “narrow” activity, focused on the decedent’s gang membership and “not the activities of the gang at large,” as Selna had originally directed, the witness “took every opportunity to opine on matters squarely forbidden by the court’s previous rulings,” Owens said. “As a result, the jury was exposed to inflammatory testimony that was wholly irrelevant to liability, and of limited relevance even as to damages.”

On remand, he declared, liability must be tried separately from damages; evidence of gang membership and drug use excluded other than as to how it affected Huizar’s reactions to her son’s death, and permit the plaintiff to stipulate that Diaz was a gang member, in which case no expert gang witness will be allowed to testify.

Estate of Diaz v. City of Anaheim, 14-55644, was argued in the Ninth Circuit by Dale K. Galipo for the plaintiff and by Assistant City Attorney Moses W. Johnson IV for Anaheim. 

The Court Report 

Court of Appeal Rejects Brown Act Suit Against City Council as SLAPP

(Reprinted from the Metropolitan News Enterprise, August 10, 2016)

A suit charging Culver City councilmembers with violating the state’s open-meeting law in connection with their handling of a church’s bid to ease parking restrictions was properly thrown out under the anti-SLAPP statute, the Court of Appeal for this district has ruled.

Div. Eight Monday ordered publication of its July 15 opinion in the case.

The panel affirmed Los Angeles Superior Court Judge Michael Johnson’s order striking the complaint by five city residents who alleged the council violated the Ralph M. Brown Act by discussing the parking issue even though it was not on the meeting agenda, and by acting on the issue by allowing the church to proceed with an appeal of an earlier denial of a challenge to the restrictions.

The panel held that the action arose from protected activity, that the public-interest exception to the statute did not defeat the motion because the residents were acting in their personal interest, and that the plaintiffs did not make a prima facie showing of a Brown Act violation.

Long-Running Conflict

The conflict between Grace Lutheran Church and the residents of nearby Farragut Drive goes back to 1982, the court noted, when residents allegedly jammed the street with parked cars during services. This led to parking restrictions in the area, and in 2004 the restrictions were made part of a city ordinance.

That in turn led to the creation of a “traffic committee” of traffic engineering staff members, assigned to implement regulations on preferential and residential permit parking. In 2014, the church began the process of challenging the existing restrictions, which the church described as “onerous.”

At a meeting held in August of that year, then-Councilman Andrew Weissman noted during the portion of the meeting devoted to receipt of correspondence that he had received a letter from the church’s lawyer. A six-minute discussion involving the mayor and the public works director/city engineer ensued, following the church’s request to review the restrictions was placed on the agenda for the next meeting.

The Farragut Drive residents then filed a declaratory action charging that the discussion of the letter and placement of the matter on the agenda violated the Brown Act. The city responded with the anti-SLAPP motion, arguing that it had done nothing more than engage in preliminary discussions concerning a matter to be placed on a future agenda, which the act expressly permits.

Johnson agreed, as did the Court of Appeal.

Rubin Opinion

Justice Laurence Rubin, writing for the panel, said the homeowners were acting on behalf of themselves, not the wider public, so that the public-interest exception did not bar the motion.

“Keeping the parking restriction at status quo would directly benefit plaintiff Farragut Drive homeowners,” Rubin wrote. “In short, plaintiffs sought personal relief in the form of a halt to any attempts by the church to undo the long-standing parking restrictions.  As a result, the public interest exception to the anti-SLAPP provisions does not apply.”

Turning to the merits, he rejected the plaintiffs’ claims that the council engaged in prohibited substantive discussion on the issue.

The city established the applicability of the statutory exceptions for brief discussion of items to be placed on a future agenda; for brief questions, announcements, or reports on members’ or staff activities; and for brief responses to comments by members of the public. 

“Based on our reading of the transcript and viewing of the video recording, Weisman did no more than ask for clarification as to the appropriate avenue of response to the church’s letter,” the justice wrote. “Engineer [Charles] Herbertson answered those questions and advised the council that the matter could be placed on a future agenda, with all parties given notice and an opportunity to comment.”

Contention Rejected

Rubin also rejected the plaintiffs’ claim that the placement of the issue on the agenda violated the traffic regulations themselves, which the plaintiffs argued left the church with no standing because only area residents could challenge the restrictions.

That was not a Brown Act issue, Rubin said, because the statute only requires the legislative body to follow its own rules and procedures with respect to setting agendas. “To hold otherwise would convert the Brown Act into a vehicle for challenging agendized matters because opponents believe the legislative body lacks authority to act for reasons unrelated to the policies behind the open meeting law,” he said.

Besides, Rubin wrote, the plaintiffs failed to persuade the court that their interpretation was correct, since it would effectively preclude the city from reconsidering longstanding restrictions, “no matter how much conditions had changed,” unless the challenge came from residents of the particular parking zone.

Cruz v. Culver City, 16 S.O.S. 4016, was argued in the Court of Appeal by Herbert L. Greenberg for the plaintiffs and Thomas B. Brown of Burke, Williams & Sorenson for the defendants.

Coverage Matters

Ransomware and Phishing

by Jim Thyden, Insurance Programs Manager

The Authority’s Cyber Liability Program provides coverage for many types of cyber and other privacy-related exposures. The Authority’s insurance partner for this program is Brit Global Specialty Insurance. 

Brit provides periodic training bulletins. The most recent bulletin concerns training employees on how to reduce or eliminate the potential for ransomware attacks via phishing emails. The bulletin raises awareness about a spear-phishing attack known as the Business Email Compromise. This social engineering attack has devastated many organizations in terms of cost and breach of sensitive information. Click here to view the bulletin.

If you have any questions about the Authority’s Cyber Liability Program, please contact Jim Thyden, the Authority's Insurance Programs Manager.