HomeMy WebLinkAbout19-City Attorney I - i
' ® R 1
� GINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Diane C. Roth Subject: Annual Litigation Report (2010) and
Senior Assistant City Attorney Request for Additional Funding for Outside
Dept: City Attorney Counsel and Litigation Expenses.
Date: February 22, 2011
Synopsis of Previous Council Action: July 6, 2010: MCC adopted Resolution # 2010-224,
approving and adopting the City of San Bernardino's Final Budget for Fiscal Year 2010-2011; and
directing the establishment of the City's appropriation limit as required by Article XIII B of the
California State Constitution.
Recommended motion: 1. Accept and file 2010 Annual Litigation Report; 2. Authorize
additional funding of$300,000 for Outside Attorney Services and additional$150,000 for Litigation
Expenses, and 3. Direct the Director of Finance to amend the 2010/2011 City General Fund
Budget to reflect increase of $300,000 to account # 001-050-5503-0000-0006 and increase of
$150,000 to account # 001-050-5177-0000-0006.
Signature
Contact person: Diane C. Roth Phone: (909) 384-5355
Supporting data attached: four pages Ward: All
FUNDING REQUIREMENTS: Amount: $450,000
Source: City General Fund
Finance:
Council Notes:
Agenda Item No. 19
Da-aa-C90 t
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: Diane Catran Roth, Senior Assistant City Attorney k-/
DATE: February 14, 2011 Y
RE: 2010 Annual Litigation Report
The following is a summary of the civil cases open on December 31 of 2008, 2009 and 2010:
12/31/2008 12/31/2009 12/31/2010
Total number of open civil cases 77 86 103
Number handled by outside counsel 30 32 33
Number handled in-house 47 54 70
Police cases 23 33 40
Federal court cases 10 17 22
Total spent on outside counsel $560,643 $491,896 $546,677
Litigation expenses $170,941 $289,580 $202,044
Total number of new cases opened in 2010: 56
Total number of cases closed in 2010: 24
In addition, we litigated a dozen federal criminal subpoenas in which police personnel files have
been sought (all but one in Los Angeles), 32 Pitchess motions (which, in addition to drafting the
oppositions,usually take a half day of court time)and several petitions for the return of confiscated
firearms.
As you can see,our caseload has increased steadily over the last couple of years in both volume and
complexity. We ended 2010 with 34% more cases than we had at the end of 2008 including a
102% increase in cases filed in Federal Court. The number of cases with outside counsel has
remained steady;the increased burden has been shouldered by our in-house staff. Nevertheless,the
amount budgeted for and actually spent on outside counsel decreased from 2008 to 2010 the
number of in-house attorneys remained constant and our in-house support staff decreased in
2010.
Federal court cases put much more stress on our resources, not only because they are often venued
in Los Angeles or Santa Ana,but because they move very quickly,have numerous court appearances
which require the appearance of trial counsel,have strict time constraints throughout the entire case
with little sympathy from the bench for attorneys' calendars or other obligations. For example, a
party has 75 days to respond to a motion for summary judgment in state court, but only 21 days in
federal court.Also,the federal court requires many documents to be filed jointly by the parties after
face-to-face meetings and negotiations. All of our outside counsel have young associates and other
support staff to lighten the burden of working up and trying federal cases,but our in-house attorneys
handle their cases without such support. Therefore the challenge for litigation attorneys within the
office to also balance municipal advisory duties has increased.
However,despite the additional burden,we have been successful in the majority of our cases. We
had to pay out on only two judgments—a stipulated judgment in the Hulse-LAFCO case (after the
City Council declined to follow our legal advice and acted to annex several County unincorporated
"islands"into the City), and the J.R. case(the 2005 incident at the stadium after the Black History
Parade involving alleged police excessive force),which was tried to verdict in a previous year and
affirmed by the 9' Circuit in 2010.
Amount paid on judgments in 2010:
Hulse(Stipulated judgment) $ 66,667
J.R. (Verdict affirmed by 9th Cir.) 211,938
TOTAL $278, 605
The majority of what was paid out in settlements was on the Batey case(trip and fall in the library
resulting in stroke). Other than that case,we have successfully negotiated favorable settlements in
seven cases (all $50,000 or less) and closed 14 cases after outright dismissals. We also won the
Watson case at trial (alleged police excessive force).
Amount paid on settlements in 2010:
Outside counsel:
Batey(dangerous condition) $292,352
Daves (police/wrongful death) 10,000
$302,352
In-house
Bocanegra (police misconduct) $ 50,000
Burrtec(refuse hauler) 35,000
Montenegro (police misconduct) 19,500
Nauman (dangerous condition) 6,250
Shaver(police misconduct) 1,500
Vargas (police misconduct) 15,000
$127,250
The above figures reflect calendar year expenditures.
For the fiscal year 2010/2011 we prof ected and requested$670,800 for outside counsel and$238,600
for litigation costs. Council reduced our budget resulting in $416,400 for outside counsel and
$116,000 for litigation costs being included in the final budget. We stated at the time that those
amounts are insufficient to defend the City in lawsuits for Fiscal year 2010/2011.
In this fiscal year to date we have incurred approximately $526,000 in outside counsel fees and
approximately $160,000 in litigation expenses. At my request, all of our outside counsel have
provided estimates of their fees projected through June 30, 2011. Their estimates total$610,200
in fees. In addition, we estimate approximately$250,000 in litigation expenses.
Based on the above, we request a budget increase of an additional$300,000 for outside counsel
and an additional$150,000 for litigation expenses.
r
J
t
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
cnierea info Rec, at MCC/CDC
TO: Mayor and Common Council b
FROM: Diane Catran Roth, Senior Assistant City Attorn A , No' f ---
C' r rk CDC
DATE: February 22, 2011 City i San Bernardino
y o
RE: 2010 Annual Litigation Report
The following is a summary of the civil cases open on December 31 of 2008, 2009 and 2010:
12/31/2008 12/31/2009 12/31/2010
Total number of open civil cases 77 86 103
Number handled by outside counsel 30 32 33
Number handled in-house 47 54 70
Police cases 23 33 40
Federal court cases 10 17 22
Total spent on outside counsel $560,643 $491,896 $546,677
Litigation expenses $170,941 $289,580 $202,044
Total number of new cases opened in 2010: 56
Total number of cases closed in 2010: 24
Included in the above caseload are five appeals. We are now handling all state and federal writs
and appeals in house, at a estimated savings of$150-200,000 in 2010. Appeals typically take an
average of approximately 150 hours. The appeal in the Alvarez case took substantially more time,
all of which occurred in 2010. (Oral argument occurred in 2011, and the Federal Court of Appeals
for the Ninth Circuit ruled in the City's favor.)
In addition, we litigated a dozen federal criminal subpoenas in which police personnel files have
been sought (all but one in Los Angeles), 32 Pitchess motions (which, in addition to drafting the
oppositions, usually take a half day of court time) and several petitions for the return of confiscated
firearms.
2010 Annual Litigation Report
February 22, 2011
Page 2
As you can see, our caseload has increased steadily over the last couple of years in both volume and
complexity. We ended 2010 with 34% more cases than we had at the end of 2008, including a
102% increase in cases filed in Federal Court. The number of cases with outside counsel has
remained steady; the increased burden has been shouldered by our in-house staff. Nevertheless,the
amount budgeted for and actually spent on outside counsel decreased from 2008 to 2010, the
number ofin-house attorneys remained constant and our in-house support staff decreased in 2010.
Federal court cases put much more stress on our resources, not only because they are often venued
in Los Angeles or Santa Ana,but because they move very quickly,have numerous court appearances
which require the appearance of trial counsel,have strict time constraints throughout the entire case
with little sympathy from the bench for attorneys' calendars or other obligations. For example, a
party has 75 days to respond to a motion for summary judgment in state court,but only 21 days in
federal court. Also,the federal court requires many documents to be filed jointly by the parties after
face-to-face meetings and negotiations. All of our outside counsel have young associates and other
support staff to lighten the burden of working up and trying federal cases,but our in-house attorneys
handle their cases without such support. Therefore the challenge for litigation attorneys within the
office to also balance municipal advisory duties has increased.
However, despite the additional burden, we have been successful in the majority of our cases. We
had to pay out on only two judgments—a stipulated judgment in the Hulse-LAFCO case (after the
City Council declined to follow our legal advice and acted to annex several County unincorporated
"islands" into the City), and the J.R. case (the 2005 incident at the stadium after the Black History
Parade involving alleged police excessive force), which was tried to verdict in a previous year and
affirmed by the 9`y'Circuit in 2010.
Amount paid on judgments in 2010:
Hulse (Stipulated judgment) $ 66,667
J.R. (Verdict affirmed by 9th Cir.) 211,938
TOTAL $278, 605
The majority of what was paid out in settlements was on the Batey case (trip and fall in the library
resulting in stroke). Other than that case, we have successfully negotiated favorable settlements in
seven cases (all $50,000 or less) and closed 14 cases after outright dismissals. We also won the
Watson case at trial(alleged police excessive force) and the Flesh Club case at trial on remand to
the Superior Court after winning in the California Supreme Court.
Amount paid on settlements in 2010:
Outside counsel:
Batey(dangerous condition) $292,352
Daves (police/wrongful death) 10,000
$302,352
I
3
f
2010 Annual Litigation Report
° February 22, 2011
Page 3
In-house counsel:
Bocanegra (police misconduct) $ 50,000
Burrtec(refuse hauler) 35,000
Montenegro (police misconduct) 19,500
Nauman (dangerous condition) 6,250
Shaver(police misconduct) 1,500
Vargas (police misconduct) 15,000
$127,250
The above figures reflect calendar year expenditures.
For the fiscal year 2010/2011 we projected and requested$670,800 for outside counsel and$238,600
for litigation costs. Council reduced our budget resulting in $416,400 for outside counsel and
$116,000 for litigation costs being included in the final budget. We stated at the time that those
amounts are insufficient to defend the City in lawsuits for Fiscal year 2010/2011.
In this fiscal year to date we have incurred approximately $526,000 in outside counsel fees and
approximately $160,000 in litigation expenses. At my request, all of our outside counsel have
provided estimates of their fees projected through June 30, 2011. Their estimates total$610,200 in
fees. In addition, we estimate approximately$250,000 in litigation expenses.
Based on the above, we request a budget increase of an additional$300,000 for outside counsel
and an additional$150,000 for litigation expenses.
in Los Angeles or Santa Ana,but because they move very quickly,have numerous court appearances
which require the appearance of trial counsel,have strict time constraints throughout the entire case
with little sympathy from the bench for attorneys' calendars or other obligations. For example, a
party has 75 days to respond to a motion for summary judgment in state court,but only 21 days in
federal court.Also,the federal court requires many documents to be filed jointly by the parties after
face-to-face meetings and negotiations. All of our outside counsel have young associates and other
support staff to lighten the burden of working up and trying federal cases,but our in-house attorneys
handle their cases without such support. Therefore the challenge for litigation attorneys within the
office to also balance municipal advisory duties has increased.
However, despite the additional burden,we have been successful in the majority of our cases. We
had to pay out on only two judgments—a stipulated judgment in the Hulse-LAFCO case (after the
City Council declined to follow our legal advice and acted to annex several County unincorporated
"islands"into the City), and the J.R. case(the 2005 incident at the stadium after the Black History
Parade involving alleged police excessive force), which was tried to verdict in a previous year and
affirmed by the 91'' Circuit in 2010.
Amount paid on judgments in 2010:
Hulse (Stipulated judgment) $ 66,667
J.R. (Verdict affirmed by 91" Cir.) 211,938
TOTAL $278, 605
The majority of what was paid out in settlements was on the Batey case (trip and fall in the library
resulting in stroke). Other than that case,we have successfully negotiated favorable settlements in
seven cases (all $50,000 or less) and closed 14 cases after outright dismissals. We also won the
Watson case at trial (alleged police excessive force).
Amount paid on settlements in 2010:
Outside counsel:
Batey(dangerous condition) $292,352
Daves (police/wrongful death) 10,000
$302,352
In-house
Bocanegra (police misconduct) $ 50,000
Burrtec (refuse hauler) 35,000
Montenegro (police misconduct) 19,500
Nauman (dangerous condition) 6,250
Shaver(police misconduct) 1,500
Vargas (police misconduct) 15,000
$127,250
The above figures reflect calendar year expenditures.
For the fiscal year 2010/2011 we projected and requested$670,800 for outside counsel and$238,600
for litigation costs. Council reduced our budget resulting in $416,400 for outside counsel and
$116,000 for litigation costs being included in the final budget. We stated at the time that those
amounts are insufficient to defend the City in lawsuits for Fiscal year 2010/2011.
In this fiscal year to date we have incurred approximately $526,000 in outside counsel fees and
approximately $160,000 in litigation expenses. At my request, all of our outside counsel have
provided estimates of their fees projected through June 30, 2011. Their estimates total$610,200
in fees. In addition, we estimate approximately $250,000 in litigation expenses.
Based on the above, we request a budget increase of an additional$300,000 for outside counsel
and an additional$150,000 for litigation expenses.
U
ANIL