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Home My WebLink AboutAGENDA REPORT 2000 1101 CC REG ITEM 11GITEM / I. G City cou"Zid'a of / /-- /- ACTION: MOORPARK CITY COUNCIL AGENDA REPORT By ;- _ TO: Honorable City Council FROM: Deborah S. Traffenstedt, ATOM /City Clerk �T DATE: October 25, 2000 (CC Meeting 11 /1 /00) SUBJECT: Consider Amicus Support in Cornette v. Department of Transportation, Supreme Court Case No. 5089010 BACKGROUND The City Attorney has forwarded a request for amicus support and has recommended that the City join the brief for the above - referenced litigation. This California Supreme Court case will decide whether loss of design immunity due to changed conditions is a court or jury question. The League of California Cities has approved amicus support. DISCUSSION The background of the case and the primary issues in this lawsuit are described in the attached letter. To summarize, the amicus brief will be in support of the current case law which states that all elements of design immunity should be decided by the court. STAFF RECOMMENDATION Direct the City Attorney to sign the representation form authorizing the City of Moorpark to be added to the amicus brief. Attachment: Letter dated October 13, 2000 MICHAEL M. POLLAK SCOTT J. VIDA GIRARD FISHER J. SUSAN GRAHAM DANIEL P. BARER' LAWRENCE J. SHER DAVID A. HADLEN JUDY L. McKELVEY DANIEL S, HOUSER CERTIFIED SPECIALIST, APPELLATE LAW STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION Cheryl Kane City Attorney Burke, Williams & Sorensen 611 West 6th St., Suite 2500 Los Angeles, CA 90017 POLLAK, VIDA & FISHER TELEPHONE ATTORNEYS AT LAW (310) 551 -3400 1801 CENTURY PARK EAST FAX (310) 551 -1036 26TH FLOOR E -MAIL LOS ANGELES, CALIFORNIA 90067 -2343 law@pvandf.com INTERNET www.pvandf.com October 13, 2000 Re: _REQUEST FOR PARTICIPATION IN AMICUS BRIEF Cornette v. Department of Transportation Supreme Court No. S089010 [Please respond by November 10, 2000] Dear Ms. Kane: OF COUNSEL: GERARD A. LAFOND, JR. MICHAEL R. NEBENZAHL I urge your City to join in the Cornette amicus brief. This California Supreme Court case will decide whether loss of design immunity due to changed conditions is a court or jury question. The League of California Cities and the California State Association of Counties have approved amicus support. They have authorized our firm to write the brief. The League does not submit amicus briefs in its own name. Instead, it encourages individual cities to lend their names. Therefore, we request all California cities to join as amici. The Case The Comettes had an auto accident on a state highway, in which they crossed over a dirt median into opposing traffic. They sued Caltrans. They alleged that the highway was in a dangerous condition because it lacked a median barrier. The trial court bifurcated the trial, and tried Caltrans' design immunity defense (Government Code section 830.6) first, without a jury. During the design immunity phase, the parties produced conflicting evidence (factual and expert) about whether Caltrans had lost the design immunity through changed conditions. The trial court ruled that it -- not a jury -- should resolve all factual and legal issues, and found for Caltrans on design immunity. But the appellate court reversed. It decided that when facts are disputed, all the elements of design immunity -- except whether substantial evidence supports the 110095 October 13, 2000 Page 2 reasonableness of the design -- are jury questions. The Supreme Court granted review. The Supreme Court will hand down an important decision on governmental tort liability. Current case law states that all elements of design immunity should be decided by the court. This allows public entities to end dangerous - design cases at summary judgment, or in the immunity phase of a bifurcated trial, before the case goes to the jury. This decision could require nearly all design immunity cases to go to the jury. The League seeks to ensure that that does not happen. T ssues Government Code section 830.6's design immunity exonerates public entities from liability for reasonably- approved plans or designs for public property. Whether the public entity's approval of the plan or design was reasonable is determined by the court under the "substantial evidence" test: if the entity produces substantial evidence (such as an expert's opinion) that the design could reasonably be approved, reasonable approval is established -- even if the plaintiff presents evidence that the plan is unreasonable. The immunity can be lost if physical conditions that changed since the plan or design was approved render it dangerous. Until Cornette, courts held whether the plan or design remained reasonable, despite changed conditions, was also decided by the court under the substantial evidence standard. The Cornette case poses a single core issue: Do all issues concerning design immunity -- including whether changed conditions eliminating immunity -- present legal questions for the court to resolve on the "substantial evidence" standard, regardless of conflicting facts? Or are all design immunity issues (except whether the initial design was reasonable) questions for the jury? We will argue that the substantial evidence standard should apply not only to the reasonableness of the original approval, but also whether the construction still conforms to a reasonable plan or design despite changed conditions. Design immunity is a powerful tool for ending dangerous condition cases before they can go to the jury; and for preventing juries from second - guessing discretionary design decisions. The Supreme Court's decision in this case could disable that tool. You can find the appellate decision at 80 Cal.App.4th 1239; 95 Cal.Rptr.2d 733; or 2000 Cal.App. LEXIS 563. Request It's important to get the cities on board. Their stance really does influence the court. In a case we recently argued before the California Supreme Court, Chief Justice George turned to the League's amicus counsel and asked pointedly, "Where do the cities stand ?" We'd like to make a strong statement about that in this case. C" () Gb6 October 13, 2000 Page 3 If your City is willing to participate, please complete and return the enclosed authorization to my office. The form should be mailed to the undersigned by November 10, 2000. Thank you. Very truly yours, PO LAK, VIDA & FISHER avj p6mle DANIEL P. BARER GF:pb Enclosure cc: Joanne Speers League of California Cities G: \V✓PD0CSWI7YS \G1;%=icus briefs \Comette \Comettemrg- 101300.wpd 00057