Legal News and Appellate Tips

Sometimes you CAN beat city hall. But the city, even after a court loss, can still win.

Municipal law attorney Peter Prows discusses strategies to keep in mind if you ever go up against the city.

The key takeaway: Once its made up its mind to do something, a city (or agency or whatever) will keep trying until it gets its way. So if you sue the city, don’t bring a claim that is easy for it to fix. You want to prevail on a claim that will constrain its discretion the next time around.

Even Supreme Court Justice William Brennan remarked on how difficult it is to beat a city attorney, in this passage, quoting a city attorney giving advice to colleagues at a conference of the National Institute of Municipal Law Officers in California:

"IF ALL ELSE FAILS, MERELY AMEND THE REGULATION AND START OVER AGAIN. "If legal preventive maintenance does not work, and you still receive a claim attacking the land use regulation, or if you try the case and lose, don't worry about it. All is not lost. One of the extra 'goodies' contained in the recent [California] Supreme Court case of Selby v. City of San Buenaventura, 10 C.3d 110, appears to allow the City to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever, and everybody starts over again. . . . . . "See how easy it is to be a City Attorney. Sometimes you can lose the battle and still win the war. Good luck."

(San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting) (quoting Longtin, Avoiding and Defending Constitutional Attacks on Land Use Regulations (Including Inverse Condemnation), in 38B NIMLO Municipal Law Review 192–193 (1975)).)

When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late.

But that is not what happened in the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The case involved allegations that a sheriff’s deputy, Kelly Kent, failed to properly act on allegations of sexual misconduct against a correctional officer at the county jail. The Civil Service Commission overruled the sheriff’s demotion, and instead imposed a three-day suspension. The sheriff and the county filed a petition in the Superior Court for administrative mandamus.

After a hearing, the court granted the writ via minute order, ordering the commission to set aside its decision and demote Kent rather than suspend him. That was in November 2021.

But three months later in February 2022, the court entered its statement of decision. Kent appealed from the statement of decision on March 4.

So which was the appealable order? Last year in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43, the court held that an order on a writ of mandamus was the appealable order—waiting for a later judgment was too late. (But the Supreme Court granted review in Meinhardt.)

And a statement of decision ordinarily is not an appealable order.

Here is how the Sixth District came down:

“[W]e are satisfied that the trial court's February 1, 2022 statement of decision determined the rights of the parties and disposed of all issues in this case, constituting a final and appealable judgment.

Comment: These cases that conclude that orders that ordinarily are not appealable—like orders sustaining demurrers, orders granting summary judgment, or statements of decision—are appealable, should make you nervous. When the courts are consistent that such orders are not appealable, there is no need to worry about taking an appeal from them: you know you need to wait for a final, appealable order. But when courts hint that they MIGHT be appealable, you need to consider taking an appeal, in an abundance of caution.

Let’s hope the Supreme Court gives some guidance when it takes up the appealability of orders on administrative writs of mandamus in Meinhardt.

If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline.

The petitioners, who had won a writ of mandate in the trial court, actually had a couple of decent ways to salvage the situation. But they were not aware of them until it was too late. For example, the petitioners argued the order granting the writ did not fully dispose of the case because they still had another case for declaratory relief.

Good argument! Except for one thing, as the court noted: “But in their motion for attorney fees, appellants argued they ‘achieved complete success and a full remedy in this action.’” Whoops.