Our Recent and Current Cases
The following current or recent cases involving public projects are cited as examples by type of issue involved:
In Riskin v. Downtown Los Angeles Property Owners Association (2022) 2022 Cal. App. LEXIS 219, the California Court of Appeals held that a trial court has the discretion to deny attorney fees under the California Public Records Act (CPRA) despite the mandatory fee provision in the statute.
The CPRA (Gov. Code § 6250 et seq.) allows for inspection of public records and provides access to information related to the conduct of people’s business. Adrian Riskin uses public records requests to investigate activities of business improvement districts and the Los Angeles city government. Riskin submitted CPRA requests to the Downtown Los Angeles Property Owners Association (the Association), which is a business improvement district subject to the CPRA. The Association responded to some requests and for others, claimed that the records were exempt from disclosure under the deliberative process privilege. Riskin subsequently filed a petition under the CPRA to compel the Association to produce the requested documents. The trial court granted the petition in part, and the Association appealed from a post judgment order awarding Riskin attorney fees of $71,075.75.
The Association argued that the trial court erred in concluding it had no discretion to deny Riskin attorney fees. The appellate court agreed. Under the CPRA, the “court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation pursuant to this section.” (§ 6259(d).) Although the legislature did not define “prevail”, courts generally use the “standard test” where a plaintiff is a prevailing party if a public record is disclosed only because a plaintiff filed suit to obtain it. However, there can be instances in which a plaintiff obtains documents as a result of the litigation that are so minimal or insignificant that would justify a finding that a plaintiff is not a prevailing party. Following a discussion of prior decisions applying the minimal or insignificant standard, the appellate court held that “the minimal or insignificant standard is applicable when the requester obtains only partial relief under the CPRA.” Accordingly, in order to determine whether a plaintiff is a prevailing party, the court must inquire into whether the documents obtained were so minimal or insignificant to justify a finding that the plaintiff did not prevail. The court reversed the award of attorney fees to Riskin and remanded the case to permit the trial court to exercise its discretion as to whether Riskin is a prevailing party.
Public Entity ADA Law
- On November 19, 2021, our attorney, Matt Hicks prevailed before an en banc panel of the Ninth Circuit in the matter entitled D.D. v. Los Angeles Unified School District, __ F.4th __, Lexis 34554, WL 5407763 on the issue of whether a school student had properly exhausted his remedies prior to filing suit in federal court on Title II Americans with Disabilities Act claims. The en banc decision reversed a prior 2-1 ruling against Mr. Hicks’ client.
- On December 8, 2021, Mr. Hicks prevailed in a federal court jury trial before the Hon. George Wu on claims brought by a middle school student and her mother against his school district client for alleged retaliation in violation of Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. The jury voted unanimously 8-0 for Mr. Hicks’ school district client finding no merit to the retaliation claims. On the lone “failure to accommodate” claim, the jury deadlocked 4-4, which may require a re-trial on that claim.
- BDG currently represents the County of Los Angeles in the taking of 5 acres worth of parcels in South Los Angeles for the development of a new public project that will feature a transit-oriented boarding school, a mixed-use retail and affordable housing complex, a community room, a large open space/transit plaza, and a multi-level parking lot. The County’s project was novel, and the first known use of the power of eminent domain for redevelopment by a non-redevelopment agency since the redevelopment agencies were dissolved. The landowner brought a right-to-take challenge, which BDG defeated. LASC Case No. BC686141, County of LA v. 8400 S. Vermont et. al. BDG also handled the related CEQA litigation for the project, and successfully defeated the CEQA lawsuit. LASC Case No. BS171844, Vermont Entertainment Village v. County of LA. BDG also recently successfully utilized the special legal issues motion, unique to eminent domain practice, to remove a claim by the landowner that he was entitled to compensation for an adjacent alleyway that he had a pending vacation petition on file with the City of Los Angeles. This ruling has saved the County over $8 million dollars in acquisition costs, and countless thousands of dollars of avoided legal expenses. BDG also utilized the legal issues motion procedure to defeat the landowners claim for over $85 million in pre-condemnation damages on the grounds that as a matter of law the landowner could not link conduct by the County to the landowner’s claimed damages.
- As an additional example of a full take, BDG currently represents the Orange County Flood Control District in a condemnation action to take a parcel for flood control purposes. Riverside County Superior Court Case No. RIC1815731, OCFCD v. Van Loon et al.
- BDG also represented the Los Angeles County Metropolitan Transportation Authority (“Metro”) in the taking of multiple parcels for a Regional Connector project station located in downtown Los Angeles. As part of its litigation strategy, our attorneys successfully negotiated the value of the full take of the property prior to trial. BDG accomplished these superior results by successfully attacking (1) the opposing appraisers’ use of dissimilar property sales; and (2) the opposing appraisers’ unsubstantiated opinions regarding the potential development on the subject property. LASC Case No. BC516466, Metro v. Volk.
- BDG represented the County of Los Angeles in an eminent domain action to acquire over 80 easements for the construction of a sewer system. Utilizing effective case management, BDG has been able to resolve the matter significantly under budget. LASC Case No. BC648449 County of Los Angeles v. Brown et al.
- BDG represented Metro in the taking of a parcel for use as a maintenance yard in conjunction with the Purple Line Extension project. The case involved complicated issues associated with the significant environmental contamination that exists on this parcel, the value of the taking, and the value of the set-off for environmental contamination. BDG was able to negotiate a multi-million-dollar reduction in the value of the property prior to trial due to the contamination on the site. LASC Case No. BC551295, Metro v. Butterfield.
- BDG also represented Metro in a matter in which the property owner filed objections to the public entity’s right to take easements under a property. Based on the objections, the court set a separate trial on the right to take. BDG’s opposition brief persuaded the property owner to withdraw its objections. In this case, the property owner also dismissed its cross-complaint and its affirmative defenses well in advance of expert discovery and the scheduled jury trial. LASC Case No. BC550348 Metro v. Japanese Village, et al.
- Obtaining Pre-Judgment Possession of Parcels over the Strenuous Objections of Landowners: BDG has significant expertise with winning complicated and time sensitive pre-judgment possession motions.
- In LASC Case No. BC686141, County of LA v. 8400 S. Vermont et. al. BDG was tasked with obtaining possession of 5 acres worth of parcels within 5 months of a RON hearing. This had to be accomplished while the property owners raised significant right-to-take challenge issues, a CEQA lawsuit, a Brown Act lawsuit, and a Public records lawsuit. BDG was able to overcome all obstacles and achieved the clients desired possession date.
- In another matter, the property owner refused to cooperate in affording Metro access to the existing construction for the purposes of pre-construction surveys and installation of monitoring devices in 28 tenant units. Delay in obtaining possession would have cost the client over $500,000 per day. We successfully obtained pre-judgment access and possession orders to allow necessary work to be done for the tunnel to be constructed under the property within the construction schedule. LASC Case No. BC550348 Metro v. Japanese Village, et al.
- Condemnation for Road Work: BDG represents the County of Los Angeles in an eminent domain action to acquire land necessary to repair and replace portions of Vasquez Canyon Road that were damaged in a landslide. LASC Case No. BC637431 County of Los Angeles v. Combs et al.
- Goodwill Claims by Displaced Businesses:
- BDG recently represented Metro in the taking of parcels for a Regional Connector project station. In this matter, three beloved local restaurants were displaced and were arguably entitled to goodwill payments. Two of the tenants failed to relocate. Using expert and fact discovery regarding the restaurants’ failures to take reasonable steps to relocate, a key aspect of our litigation strategy, we were able to get the restaurants to significantly reduce their goodwill claims, which resulted in resolving the claims prior to trial. LASC Case No. BC516466, Metro v. Volk.
- BDG currently represents the Orange County Flood Control District in a condemnation action to take a parcel for flood control purposes. There are multiple tenants on the property, including a boy scout troop! The case presents complicated goodwill and relocation issues. Riverside County Superior Court Case No. RIC1815731, OCFCD v. Van Loon et al.
- Obtaining Offsets in the Acquisition Prices of Parcels due to Existing Environmental Contamination: BDG represented Metro in the taking of a parcel for use as a maintenance yard in conjunction with the Purple Line Extension project. The case involved complicated issues associated with the significant environmental contamination that exists on this parcel, the value of the taking, and the value of the set-off for environmental contamination. BDG was able to negotiate a multi-million-dollar reduction in the value of the property prior to trial due to the contamination on the site. LASC Case No. BC551295, Metro v. Butterfield.
- Part Taking of Above Ground and Subsurface Easements: BDG recently represented Metro in two cases involving partial takes. In one matter, BDG represented Metro as its lead condemnation counsel in the taking of underground easements below Los Angeles’ newest contemporary art museum. Due to the sensitive nature of the existing larger parcel operation, this matter involved complicated negotiations for not just the taking of the underground easements at issue, but also the application of additional mitigation measures related to reducing noise and vibration down to specific performance criteria.
- BDG represented Metro in the taking of an underground easement for a tunnel for the Regional Connector project that will run underneath an existing commercial development in Little Tokyo. The landowner alleged a significant severance damage claim under the theory that the tunnel would prevent the landowner from building a skyscraper over his property in the future. The matter went to trial, and the jury awarded Metro a favorable verdict (Metro’s position was that the landowner was entitled to $5 million. The landowner wanted over $50 million. Jury came back 12-0 at 5.6 million after a 2-week trial). LASC Case No. BC550348 Metro v. Japanese Village, et al. The matter was appealed by opposing counsel and upheld by the California Supreme Court.
Proposer prides itself as superior advocates, protecting our clients’ interests when considering inverse condemnation. Each attorney is committed to constant communication with our clients involved in condemnation, particularly about potential construction, environmental and financial consequences, and understands that teamwork is key.
- BDG defended a large public entity City client. Plaintiff claimed to be the owner and operator of a dance club. Plaintiff alleged that in the course of the city’s construction work to modernize and resurface the street in front of the club that the construction work was performed on both the north and south lanes simultaneously, including the digging of a trench in front of the entrance, which allegedly rendered the street and adjacent areas “nearly impossible” to traverse by car or on foot. Plaintiff further alleged that the construction work, as performed, was “dirty, dusty and difficult to pass through,” and that the entrance to the club was “severely restricted” (at times limited to a piece of plywood placed over the trench in front of the club’s entrance). Finally, Plaintiff alleged that the valet parking area was also “nearly inaccessible” during construction. Plaintiff asserted three purported causes of action: (1) common law negligence; (2) inverse condemnation pursuant to Article I, §19, of the California Constitution; and (3) nuisance pursuant to California Civil Code §3479. Plaintiff contended that in the aggregate the construction resulted in accessibility difficulties, disrepair, and clutter, which allegedly led to a severe diminution in the volume of customers patronizing the club. As a result of its successful litigation strategy, BDG negotiated a pretrial settlement with Plaintiff in an amount less than 20% of Plaintiff’s monetary demand.
- BDG also represents the San Diego Association of Governments and the San Diego Metropolitan Transit System in an inverse condemnation action. The Plaintiff, the owner of a upper-scale seafood restaurant in a busy part of a major tourist section of downtown San Diego, alleged that our clients committed substantial and unreasonable interference with its restaurant operations, causing substantial losses during the height of its busy season in summer. Specifically, Plaintiff alleges that in the course of our clients’ surface construction work to modernize and improve the city’s public transportation network, our client unreasonably impaired access to Plaintiff’s business, causing a decrease in customers frequenting their business. In addition to a claim for inverse condemnation, Plaintiff is also alleging substantive due process violations for interfering with its right to use its land and pursue a profession. While there appears to be no basis for liability, Bergman Dacey Goldsmith is currently cooperating with opposing counsel through voluntary information sharing in an attempt to settle this matter expeditiously and economically.
- BDG is defending Los Angeles County Metropolitan Transportation Authority against an inverse condemnation claim brought by a major hotel located on the path of Metro’s Regional Connector Project. The owners of the hotel claim that the construction activities on the street in front of the hotel represent a governmental taking for which it is entitled to compensation, on the theory that the construction activities have had a negative effect on the hotel’s revenues.
- BDG represented the Los Angeles County Flood Control District in litigation brought by a landowner whose land is adjacent to a segment of the Los Angeles River improvements in Long Beach. The landowner complained of extensive surface water runoff damage from massive flooding she sustained to her garage and horse barn area, as a result of, two historic rainstorms in 2017 in Long Beach. The landowner’s theories of liability against the District included: (1) inverse condemnation, (2) nuisance; and (3) dangerous condition of public property. Through discovery, BDG was able to uncover facts demonstrating that Plaintiff made her flooding situation worse by (a) openly and actively trespassing onto District property to exercise her horses, thereby altering the natural conditions of the ground, and (b) creating a series of ditches canals that only encouraged the surface water to flow onto her property. BDG dramatically undercut Plaintiff’s claims for damages through both thorough depositions and expert work. Plaintiff claimed as much as $1 million in damages in their written discovery answers, which included spurious business losses and speculative real property losses. However, by the time depositions and expert discovery took place, BDG was able to show that Plaintiff, at most, suffered approximately $30,000 worth of damages. Facing an aggressive bevy of motions in limine that would have dramatically limited their case at trial, the landowner settled for $60,000 at a pre-trial mediation — a mere 6% of their claim for damages made in their written discovery.
- BDG is currently defending the San Bernardino County Flood Control District in a lawsuit brought by the owners of a hospital. The plaintiff seeks damages based on water intruding upon its property from an adjacent water collection basin. The plaintiff’s pleaded theories of liability are nuisance, trespass, and inverse condemnation. The case is in its early stages. The plaintiff’s factual and legal theories are not well articulated in its complaint and the plaintiff has not yet responded to any of the discovery propounded by BDG.