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Item 13 Staff Report Request for Amicus Participation in Cornette v. Department of Transportation, California Supreme Court, Action No. S089010, at no Cost to the TownMEETING DATE: 11/6/00 ITEM NO. COUNCIL AGENDA REPORT / DATE: October 20. 2000 TO: MAYOR AND TOWN COUNCIL FROM: ORRY P. KORB, TOWN ATTORNEYV TTE v. NT OF SUBJECT: TRANSEST PR AMICUS ORTATION, CALIFORNIAACTIONCIPATION IN ESUPREME COURT, NO.S089010,E AT NO COST TO THE TOWN RECOMMENDATION: Authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of Cornette v. Department of Transportation, California Supreme Court, case number S089010, at no cost to the Town. DISCUSSION: The Cornettes had an auto accident on a state highway, in which they crossed over a dirt median into opposing traffic. They sued Caltrans alleging that the highway was in a dangerous condition because it lacked a median barrier. The trial court found that Caltrans was entitled to the design immunity, ruling that it — not a jury — should resolve all related factual and legal issues. The appellate court reversed, ruling that when the facts regarding the elements of design immunity are in dispute, all issues — except whether substantial evidence supports the reasonableness of the design — must be resolved by a jury. The case also raises the question whether changed conditions can eliminate the design immunity. The design immunity has proven to be a powerful tool in protecting public agencies, including the Town, in cases alleging liability for dangerous conditions of public property due to alleged design defects. Consequently, the League of California Cities has approved amicus support in this important case. Attachments: Letter dated October 13, 2000 from Pollak, Vida & Fisher Distribution: Daniel P. Barer, Esq., Pollak, Vida & Fisher, 1801 Century Park East, 26th Floor, Los Angeles, CA 90067-2343 PREPARED BY: O,RY P. KORB, TOWN ATTORNEY Reviewed by. OPK:LMB/wp N 1ATY`CORNETTE TCR anager Finance Revised: 10/20/00 5:55 pm Reformatted: 10/23/95 File# 301-05 & 704-15.89 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 POLLAK, VIDA & FISHER ATTORNEYS AT LAW 1801 CENTURY PARK EAST 26TH FLOOR LOS ANGELES, CALIFORNIA 90067-2343 October 13, 2000 Orry Korb Town Attorney P. O. Box 949 110 E. Main Street Los Gatos, CA 95030 Re: REQUEST FOR PARTICIPATION IN AMICUS BRIEF Cornette v. Department of Transportation Supreme Court No. S089010 [Please respond by November 10, 2000] TELEPHONE (310) 551-3400 FAX (310) 551-1036 E-MAIL iaw©pvandf.com INTERNET www.pvandl.com OF COUNSEL: GERARD A. LAFOND, JR. MICHAEL R. NEBENZAHL RECEIVED OCT an TOWN ATTNY Dear Mr. Korb: I urge your City to join in the Cornette amicus brief. This Califomia 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 Corvettes 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 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. Issues 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 reaaozablplan or design despite changed g d 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 Ca1.App.4th 1239; 95 Ca1.Rptr.2d 733; or 2000 Ca1.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. 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 traly yours, POLLAK, VIDA & FISHER DANIEL P. BARER GF:pb Enclosure cc: Joanne Speers League of California Cities G:\WPDOCS\ATTYS\GF'amicus briefs \ Corneae \Cornettemrg-101300.wpd Town Council Minutes November 6, 2000 Redevelopment Agency Los Gatos, California AMICUS BRIEF/CORNETTE VS. DEPARTMENT OF TRANSPORTATION (13.28) Motion by Mrs Lubeck, seconded by Mr. Hutchins, that Council authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of Cornette vs. Department of Transportation, California Supreme Court, Action S089010. Carried unanimously. DOWNTOWN HOLIDAY PARKING PILOT PROGRAM/STATUS REPORT (14.34) Motion by Mrs. Lubeck, seconded by Mr. Hutchins, that Council accept status report on Downtown Holiday Parking program. Carried unanimously. ADMINISTRATIVE ANALYST/CONFIDENTIAL EMPLOYEE/RESOLUTION 2000-128 (15.29) Motion by Mrs. Lubeck, seconded by Mr. Hutchins, that Council adopt Resolution 2000-128 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AMENDING THE POSITION AND CLASSIFICATION PLAN, ADDING ADMINISTRATIVE ANALYST AS A CONFIDENTIAL EMPLOYEE CLASSIFICATION AND DELETING IT AS A TEA CLASSIFICATION. Carried unanimously. HAZARDOUS VEGETATION ABATEMENT (WEEEDS)/RESOLUTION 2000-129 (16.33) Motion by Mrs. Lubeck, seconded by Mr. Hutchins, that Council adopt Resolution 2000-129 entitled, RESOLUTION OF THE TOWN OF LOS GATOS DECLARING HAZARDOUS VEGETATION (WEEDS) A PUBLIC NUISANCE AND PROVIDING FOR THEIR ABATEMENT. Carried unanimously. FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)/TECHNICAL COMMUNITY PROJECT/SANTA CLARA VALLEY WATER DISTRICT/RESOLUTION 2000-130 (17.40) Motion by Mrs. Lubeck, seconded by Mr. Hutchins, that Council adopt Resolution 2000-130 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE MEMORANDUM OF AGREEMENT WITH FEMA TO PARTICIPATE IN COOPERATING TECHNICAL COMMUNITY PROJECT. Carried unanimously. BELOW MARKET PRICE HOUSING/PROGRAM GUIDELINES/RESOLUTION 2000-131 (19.39) Motion by Mrs. Lubeck, seconded by Mr. Hutchins, that Council adopt Resolution 2000-131 entitled, RESOLUTION OF THE TOWN OF LOS GATOS ADOPTING REVISED BELOW MARKET PRICE HOUSING PROGRAM GUIDELINES. Carried unanimously. FRANCIS OAKS WAY 15500/SINGLE FAMILY CONSTRUCTION/RESOLUTION 2000-132 (20.15) Motion by Mrs. Lubeck, seconded by Mr. Hutchins, that Council adopt Resolution 2000-132 entitled, RESOLUTION OF THE TOWN OF LOS GATOS GRANTING AN APPEAL OF A DECISION FROM THE PLANNING COMMISSION DENYING AN ARCHITECTURE AND TC:Dl1:MM110600 3