de facto waiver in California

2025Assn. of Firefighters, etc. v. City of Palo Alto (2024) 102 Cal.App.5th 602 , 619; Rando, supra, 228 Cal.App.4th at pp. 878-879; 87 Ops.Cal.Atty.Gen., supra, at p. 31. 49 Bunker Hill, supra, 61 Cal.2d at p. 42 (“The de facto doctrine in sustaining official acts is well established”). 50 See Fair Political Practices Com’n. v. Californians Against Corruption (2003) 109 Cal.App.4th 269, 280 , citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 . 10 25-301 warranto.” 51 Indeed, the very basis for applying the de facto officer doctrine here to safeguard the official acts of C

2006As this court explained in In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 41-42 [ 37 Cal.Rptr. 74 , 389 P.2d 538 ]: ‘The de facto doctrine in sustaining official acts is well established. [Given the existence of] a de jure office, “[p]ersons claiming to be public officers while in possession of an office, ostensibly exercising their function lawfully and with the acquiescence of the public, are de facto officers. . . .

2014The high court in Concepcion made clear that even if a state law rule against consumer class waivers were limited to ―class proceedings [that] are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,‖ it would still be preempted because states cannot require a procedure that interferes with fundamental attributes of arbitration ―even if it is desirable for unrelated reasons.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1753]; see American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. __ , __ & fn. 5 [ 133 S.Ct. 2304 , 2312 & fn. 5

2014The high court in Concepcion made clear that even if a state law rule against consumer class waivers were limited to ―class proceedings [that] are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,‖ it would still be preempted because states cannot require a procedure that interferes with fundamental attributes of arbitration ―even if it is desirable for unrelated reasons.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1753]; see American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. __ , __ & fn. 5 [ 133 S.Ct. 2304 , 2312 & fn. 5

2014The high court in Concepcion made clear that even if a state law rule against consumer class waivers were limited to ―class proceedings [that] are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,‖ it would still be preempted because states cannot require a procedure that interferes with fundamental attributes of arbitration ―even if it is desirable for unrelated reasons.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1753]; see American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. __ , __ & fn. 5 [ 133 S.Ct. 2304 , 2312 & fn. 5

2014The high court in Concepcion made clear that even if a state law rule against consumer class waivers were limited to ―class proceedings [that] are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,‖ it would still be preempted because states cannot require a procedure that interferes with fundamental attributes of arbitration ―even if it is desirable for unrelated reasons.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1753]; see American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. __ , __ & fn. 5 [ 133 S.Ct. 2304 , 2312 & fn. 5

2006The lawful acts of an officer defacto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it.” [Citations.]’ (See also Pickens v. Johnson (1954) 42 Cal.2d 399, 410 [ 267 P.2d 801 ] [‘There is no question but that... the status of a judge de facto attached to his action.

2006The lawful acts of an officer defacto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it.” [Citations.]’ (See also Pickens v. Johnson (1954) 42 Cal.2d 399, 410 [ 267 P.2d 801 ] [‘There is no question but that... the status of a judge de facto attached to his action.

2017(See, e.g., Joaquin, supra, 202 Cal.App.4th at pp. 1225-1226, 136 Cal.Rptr.3d 472 [permitting a retaliation claim based on a false complaint about a coworker would allow an employee to " 'immunize his unreasonable and malicious internal complaints simply by filing a discrimination complaint with a government agency' "], quoting Hatmaker v. Memorial Medical Center (7th Cir. 2010) 619 F.3d 741 , 745-746 ; Chen, supra, 96 Cal.App.4th at p. 948 , 116 Cal.Rptr.2d 786 ["the possibility of a retaliation claim creates the problem of conferring a de facto immunity on the complainant despite poor job pe

2017(See, e.g., Joaquin, supra, 202 Cal.App.4th at pp. 1225-1226, 136 Cal.Rptr.3d 472 [permitting a retaliation claim based on a false complaint about a coworker would allow an employee to " 'immunize his unreasonable and malicious internal complaints simply by filing a discrimination complaint with a government agency' "], quoting Hatmaker v. Memorial Medical Center (7th Cir. 2010) 619 F.3d 741 , 745-746 ; Chen, supra, 96 Cal.App.4th at p. 948 , 116 Cal.Rptr.2d 786 ["the possibility of a retaliation claim creates the problem of conferring a de facto immunity on the complainant despite poor job pe

2009(See id. at pp. 99-113.) In Little, supra, 29 Cal.4th 1064 , the court discussed the Armendariz requirements, stating: “One . . . long-standing ground for refusing to enforce a contractual term is that it would force a party to forgo unwaivable public rights ,...[¶]... [W]hile we recognize that a party compelled to arbitrate such rights does not waive them, but merely ‘ “submits to their resolution in an arbitral, rather than a judicial, forum” ’. . . , arbitration cannot be misused to accomplish a de facto waiver of these rights.

2009(See id. at pp. 99-113.) In Little, supra, 29 Cal.4th 1064 , the court discussed the Armendariz requirements, stating: "One . . . long-standing ground for refusing to enforce a contractual term is that it would force a party to forgo unwaivable public rights . . . . [¶] . . . [W]hile we recognize that a party compelled to arbitrate such rights does not waive them, but merely `"submits to their resolution in *861 an arbitral, rather than a judicial, forum"' . . ., arbitration cannot be misused to accomplish a de facto waiver of these rights.

2025We are unaware of any California judicial decision, or any opinion of this office, wherein application of the de facto officer doctrine was declined in favor of a different weighing of the public interest. 52 Because Councilmember Pepin’s vote for Pikus is conclusive as a matter of law under the de facto officer doctrine, and because adherence to that doctrine serves the public interest, we conclude that the application for leave to sue should be DENIED. 51 107 Ops.Cal.Atty.Gen. 79, 85 (2024); see also 96 Ops.Cal.Atty.Gen. 48 , 49 (2013) (“[W]e are accorded broad discretion in determining whet

2010However, “[a]n approval granted by a responsible agency in this situation provides only permission to proceed with the project at the applicant’s risk prior to a final decision in the lawsuit.” (Guidelines, § 15233, subd. (b); see also Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1203 [ 22 Cal.Rptr.3d 203 ].) “Failure to obtain an injunction should not operate as a de facto waiver of the right to pursue a CEQA action.” (Bakersfield Citizens, at p. 1203.) “As conditions of reapproval [of a project], the [lead agency] may compel additional mitigation

2010However, “[a]n approval granted by a responsible agency in this situation provides only permission to proceed with the project at the applicant’s risk prior to a final decision in the lawsuit.” (Guidelines, § 15233, subd. (b); see also Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1203 [ 22 Cal.Rptr.3d 203 ].) “Failure to obtain an injunction should not operate as a de facto waiver of the right to pursue a CEQA action.” (Bakersfield Citizens, at p. 1203.) “As conditions of reapproval [of a project], the [lead agency] may compel additional mitigation

2007(Ryder v. United States (1995) 515 U.S. 177, 180 [ 132 L.Ed.2d 136, 142 , 115 S.Ct. 2031 ].) “ ‘The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.’ [Citation.]” (Ibid.; see also Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at p. 56 .) Here, Filter, Hedum, Mejlszenkier, and Patchett all

2007(Ryder v. United States (1995) 515 U.S. 177, 180 [ 132 L.Ed.2d 136, 142 , 115 S.Ct. 2031 ].) “ ‘The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.’ [Citation.]” (Ibid.; see also Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at p. 56 .) Here, Filter, Hedum, Mejlszenkier, and Patchett all

2007(Ryder v. United States (1995) 515 U.S. 177, 180 [ 132 L.Ed.2d 136, 142 , 115 S.Ct. 2031 ].) “ ‘The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.’ [Citation.]” (Ibid.; see also Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at p. 56 .) Here, Filter, Hedum, Mejlszenkier, and Patchett all

2007Thus, PCRHD’s general plan consistency and adequacy claims and its prima facie CEQA violation claim are not cognizable because PCRHD failed to exhaust its administrative remedies on these issues. “[Hjaving failed to raise their CEQA clams at the administrative level, [PCRHD] cannot air them for the first time in the courts.” (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at p. 1198 ; see Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282 [ 42 Cal.Rptr.3d 537 ].) *911 IV.

2007Thus, PCRHD’s general plan consistency and adequacy claims and its prima facie CEQA violation claim are not cognizable because PCRHD failed to exhaust its administrative remedies on these issues. “[Hjaving failed to raise their CEQA clams at the administrative level, [PCRHD] cannot air them for the first time in the courts.” (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at p. 1198 ; see Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282 [ 42 Cal.Rptr.3d 537 ].) *911 IV.

2004Regis relies heavily on a decision of this court which stated: “The commission’s conclusions from the evidence presented to it do not themselves constitute evidence of such effects.” (Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424, 435 [ 187 Cal.Rptr. 53 ] (Perley).) But in Perley , neither the planning commission nor the plaintiff cited facts to support the commission’s conclusions.

2004Regis relies heavily on a decision of this court which stated: “The commission’s conclusions from the evidence presented to it do not themselves constitute evidence of such effects.” (Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424, 435 [ 187 Cal.Rptr. 53 ] (Perley).) But in Perley , neither the planning commission nor the plaintiff cited facts to support the commission’s conclusions.

2004Second, questions concerning urban decay and cumulative impacts constitute important issues of broad public interest that are likely to reoccur. *1204 (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8 [ 31 Cal.Rptr.2d 776 , 875 P.2d 1279 ]; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [ 98 Cal.Rptr.2d 202 ].) Finally, even at this late juncture full CEQA compliance would not be a meaningless exercise of form over substance.

2004Second, questions concerning urban decay and cumulative impacts constitute important issues of broad public interest that are likely to reoccur. *1204 (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8 [ 31 Cal.Rptr.2d 776 , 875 P.2d 1279 ]; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [ 98 Cal.Rptr.2d 202 ].) Finally, even at this late juncture full CEQA compliance would not be a meaningless exercise of form over substance.

2004Second, questions concerning urban decay and cumulative impacts constitute important issues of broad public interest that are likely to reoccur. *1204 (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8 [ 31 Cal.Rptr.2d 776 , 875 P.2d 1279 ]; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [ 98 Cal.Rptr.2d 202 ].) Finally, even at this late juncture full CEQA compliance would not be a meaningless exercise of form over substance.

2004Second, questions concerning urban decay and cumulative impacts constitute important issues of broad public interest that are likely to reoccur. *1204 (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8 [ 31 Cal.Rptr.2d 776 , 875 P.2d 1279 ]; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [ 98 Cal.Rptr.2d 202 ].) Finally, even at this late juncture full CEQA compliance would not be a meaningless exercise of form over substance.

2003(See, e.g., Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, 1153-1154 , 269 Cal. Rptr. 709 [mandatory employee waiver of all employer liability for asbestos exposure contrary to public policy].) [2] Thus, while we recognize that a party compelled to arbitrate such rights does not waive them, but merely "`submits to their resolution in an arbitral, rather than a judicial, forum'" ( Gilmer, supra, 500 U.S. at p. 26 , 111 S.Ct. 1647 ), arbitration cannot be misused to accomplish a de facto waiver of these rights.

2003(See, e.g., Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, 1153-1154 , 269 Cal. Rptr. 709 [mandatory employee waiver of all employer liability for asbestos exposure contrary to public policy].) [2] Thus, while we recognize that a party compelled to arbitrate such rights does not waive them, but merely "`submits to their resolution in an arbitral, rather than a judicial, forum'" ( Gilmer, supra, 500 U.S. at p. 26 , 111 S.Ct. 1647 ), arbitration cannot be misused to accomplish a de facto waiver of these rights.

2003Accordingly, although the Armendariz requirements specifically concern arbitration agreements, they do not do so out of a generalized mistrust of arbitration per se (see Doctor's Associates, Inc., supra, 517 U.S. at p. 687 , 116 S.Ct. 1652 ), but from a recognition that some arbitration agreements and proceedings may harbor terms, conditions and practices that undermine the vindication of unwaivable rights.

2003Accordingly, although the Armendariz requirements specifically concern arbitration agreements, they do not do so out of a generalized mistrust of arbitration per se (see Doctor's Associates, Inc., supra, 517 U.S. at p. 687 , 116 S.Ct. 1652 ), but from a recognition that some arbitration agreements and proceedings may harbor terms, conditions and practices that undermine the vindication of unwaivable rights.

2003(See, e.g., Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, 1153-1154 , 269 Cal. Rptr. 709 [mandatory employee waiver of all employer liability for asbestos exposure contrary to public policy].) [2] Thus, while we recognize that a party compelled to arbitrate such rights does not waive them, but merely "`submits to their resolution in an arbitral, rather than a judicial, forum'" ( Gilmer, supra, 500 U.S. at p. 26 , 111 S.Ct. 1647 ), arbitration cannot be misused to accomplish a de facto waiver of these rights.

2003(See, e.g., Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, 1153-1154 , 269 Cal. Rptr. 709 [mandatory employee waiver of all employer liability for asbestos exposure contrary to public policy].) [2] Thus, while we recognize that a party compelled to arbitrate such rights does not waive them, but merely "`submits to their resolution in an arbitral, rather than a judicial, forum'" ( Gilmer, supra, 500 U.S. at p. 26 , 111 S.Ct. 1647 ), arbitration cannot be misused to accomplish a de facto waiver of these rights.

1991(See People v. Heishman (1988) 45 Cal.3d 147, 101 [ 246 Cal. Rptr. 673 , 753 P.2d 629 ], cert.den. 488 U.S. 948 [ 102 L.Ed.2d 369 , 109 S.Ct. 380 ] [failure to state reasons for denying automatic death penalty modification motion].) The Fifth District recently adopted the "no reasonable possibility" standard in connection with the error involved here, i.e., failure to state reasons under the DSL. ( People v. May (1990) 221 Cal. App.3d 836, 839 [ 270 Cal. Rptr. 690 ].) I believe this holding correctly reflects the de facto standard applied in the vast majority of published cases.

1991(See People v. Heishman (1988) 45 Cal.3d 147, 101 [ 246 Cal. Rptr. 673 , 753 P.2d 629 ], cert.den. 488 U.S. 948 [ 102 L.Ed.2d 369 , 109 S.Ct. 380 ] [failure to state reasons for denying automatic death penalty modification motion].) The Fifth District recently adopted the "no reasonable possibility" standard in connection with the error involved here, i.e., failure to state reasons under the DSL. ( People v. May (1990) 221 Cal. App.3d 836, 839 [ 270 Cal. Rptr. 690 ].) I believe this holding correctly reflects the de facto standard applied in the vast majority of published cases.