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Decisions In Property, Attorney Fees In Public Nuisance Suit, Education, & Tort Matters

By FindLaw Staff on July 27, 2010 | Last updated on March 21, 2019

Klein v. US, S165549, concerned a plaintiff's suit against the United States government and its volunteer worker for injuries he sustained when he was struck head-on by an automobile driven by a part time volunteer working for the United States Fish and Wildlife Service, while riding a bicycle in a National Forest in Southern California.  The court ruled that Civil Code section 846's liability shield does not extend to acts of vehicular negligence by a landowner or by the landowner's employee while acting within the course of the employment, as the statutory phrase "keep the premises safe" is an apt description of the property-based duties underlying premises liability, a liability category that does not include vehicular negligence.

County of Santa Clara v. Superior Court, S163681, concerned a challenge to the Court of Appeals' holding that People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, does not bar all contingent fee agreements with private counsel in public nuisance abatement actions, but only those in which private attorneys appear in place of, rather than with and under the supervision of, government attorneys in a public nuisance action brought by a group of public entities against numerous businesses that manufactured lead paint.

In reversing the judgment, the court held that, the absolute prohibition on contingent-fee arrangements imported in Clancy from the context of criminal proceedings is unwarranted in the circumstances of the present civil public nuisance action.  Thus, to ensure that public attorneys exercise real rather than illusory control over contingent fee counsel, retainer agreements providing for contingent fee retention should encompass more than boilerplate language regarding "control" or "supervision" by identifying certain critical matters regarding litigation that contingent fee counsel must present to government attorneys for decision such as:  (i) that the public entity attorneys will retain complete control over the course and conduct of the case; (ii) that government attorneys retain a veto power over any decisions made by outside counsel; and (iii) that a government attorney with supervisory authority must be personally involved in overseeing the litigation.  Here, none of the ten fee agreements contain the other specific provisions regarding retention of control and division of responsibility that are required to safeguard against abuse of judicial process.

California Sch. Bd. Ass'n v. State Bd. of Educ., A122485, concerned a challenge to the State Board of Education's approval of a statewide charter for a school, brought by the California School Boards Association and others, claiming that the State Board failed to determine and make a finding that the school's instructional services of a statewide benefit could not be provided  through individual charters from local school districts.  In reversing the trial court's judgment sustaining defendants' demurrer, the court held that the petitioners have alleged that the State Board did not make the findings required by the statute in approving the school's charter petition.  The court also held that the petitioners have stated a legally cognizable claim with respect to their claim that the State Board has failed and refused to enforce the conditions of approval imposed on the school's charter and should be compelled to do so.  Further, petitioners' claims that they are directly affected by the approval of statewide charter schools and have an interest in ensuring their legitimacy, are sufficient to overcome the State Board's contention on demurrer.

Avedon v. State of California, B217827, concerned a challenge to the trial court's order sustaining the state's demurrer without leave to amend and dismissal in a suit against the state of California brought by property owners whose homes were destroyed or damaged in a 2007 fire, on theories of dangerous condition of public property and nuisance.  In affirming the judgment, the court held that plaintiffs have failed to state a cause of action for dangerous condition of public property as, in the absence of a defect in the property, plaintiffs cannot allege facts establishing a causal connection between the defect and the injuries sustained.  The court also held that, having decided that plaintiffs cannot proceed on their claim for dangerous condition of public property, it follows that the nuisance claim which mirrors that cause of action also cannot proceed.

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