CALIFORNIA GRANNY UNIT BILL PASSES

On August 31, 2016, the California State Legislature passed Assembly Bill 2299 which amends Government Code section 65852.2 relating to second units on residential houses.   The law relaxes some of the impediments to building secondary or accessory dwelling units and limits the city or county’s ability to reject such units.  The term “accessory dwelling unit” is defined as an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons.  It includes permanent provisions for living, sleeping, eating, cooking and sanitation on the same parcel as the single-family dwelling is situated.  Accessory dwelling units also include efficiency units (H&S Code § 17958.1) and manufactured homes (H&S Code § 18007).  The purpose of the law is to boost the state’s affordable housing supply in a time when the state is facing a critical housing shortage. Continue reading

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“TERMS OF USE” MUST BE CONSPICUOUSLY DISPLAYED ON WEBSITE TO BE ENFORCEABLE.

California law is now clear that so-called “browsewrap” agreements on internet sites that are inconspicuous to the user are not contractually binding.  In Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, the plaintiff Long brought a consumer fraud claim against Provide Commerce, Inc. based on allegations of fraud with respect to the products sold on Provide’s website, ProFlowers.com.  Provide sought to compel arbitration of the claim based on a provision contained in the company’s “Terms of Use,” which were viewable via a hyperlink displayed at the bottom of each page on the ProFlowers.com website.

The court explained that the Terms of Use on ProFlowers.com fall into a category of internet contracts commonly referred to as “browsewrap” agreements.  Unlike another common form of internet contracts – known as “clickwrap” agreements – browsewrap agreements do not require users to affirmatively click a button to confirm their assent to the agreement’s terms; instead, a user’s assent is inferred from his or her use of the website.  Because assent must be inferred, the determination of whether a binding browsewrap agreement has been formed depends on whether the user had actual or constructive knowledge of the website’s terms and conditions.   Continue reading

CONSISTENCY WITH THE GENERAL PLAN IS KEY WITH RESPECT TO ANY LOCAL DECISION AFFECTING LAND USE AND DEVELOPMENT

In Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91, the court emphasized the importance of being consistent with the general plan in planning and zoning decisions affecting land use and development in holding that the Environmental Impact Report (“EIR”) failed to support its conclusion that the development project complied with the general plan.  In Spring Valley, the project at issue consisted of 214,596 square feet of commercial retail use on approximately 23.72 acres of land, which was vacant and undeveloped.   Among the project’s commercial retail uses was a Walmart store of approximately 184,946 square feet.

Spring Valley Lake Association (“the Association”) brought an action against the City and Wal-Mart for writ relief challenging the EIR for the shopping center construction project under the California Environmental Quality Act (“CEQA”).  The lower court granted the petition in part and both parties appealed. Continue reading

COURT “FLIPS” THE LOWER COURT’S RULING IN FINDING THAT PRIMARY ASSUMPTION OF RISK DID NOT APPLY TO BAR INJURED STUDENT’S NEGLIGENT SUPERVISION CLAIM AGAINST SCHOOL DISTRICT

The ruling in Jiminez v. Roseville City School District (2016) 247 Cal.App.4th 594 is a cautionary tale to all schools concerning supervision of extracurricular activities on school grounds.  In Jiminez, the relevant facts are as follows:  The Plaintiff Uriel Jiminez (“Jiminez”) was a 14-year old middle school student.  Jimenez was part of a group of students who were practicing break dancing on school grounds.  One of the teachers (not a trained break dancing instructor) allowed the group to use his classroom for practice to participate in a talent show.  The group had practiced in the teacher’s room on several occasions before the date of the incident.  On the date of the incident, the teacher momentarily left the room, as he done in the past, and Jiminez performed a flip as part of the break dancing and was severely injured.

Prior to the date of the injury, the Assistant Principal had seen group members doing flips and told them to stop, but did not disseminate this information or a warning to the teachers to be on alert for this.   The teacher who lent his classroom for the activity was not aware that flipping was part of the practice sessions.  The operative complaint alleged negligence and negligent supervision.  The lower court granted the District’s motion for summary judgment on the grounds that Jiminez had assumed the risk of injury by participating in break dancing.

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