California Litigation Update: City of Carpinteria Files a Demurrer in Retail Food Code Case
Below is a summary of pending litigation in California: Save the Plastic Bag Coalition v. City of Carpinteria – The sole basis of SPBC’s suit is that Carpinteria’s ordinance is allegedly preempted by the California Retail Food Code because it includes restaurants. Carpinteria recently filed a Demurrer to the Complaint, which means that a superior court ruling will be issued soon that, if favorable, could make other cities more comfortable with including restaurants. This case is also particularly interesting because it does not involve a CEQA claim. A hearing on the Demurrer is set for May 15, 2012 at 9:30 a.m.
Schmeer v. LA County - (Hilex Poly's Prop 26 lawsuit) – Hilex Poly recently filed a Notice of Appeal to the superior court decision in favor of the County. This appeal was expected and the appellate case will be briefed in the coming months. This was a test case for whether (and to what extent) Prop 26 regulates the paper bag charge included in second generation single-use bag ordinances. On March 23, 2012, the Court ruled that the 10-cent charge on paper bags was not a tax under the California Constitution because the retailers keep all of the money collected pursuant to the ordinance, and even if the paper bag charge was a tax it would fall within the first exemption to Prop 26. (See extended case summary here.)
Save the Plastic Bag Coalition v. Marin County – The appellate case has been fully briefed with the exception of SPBC’s Reply to Californians Against Waste’s Amicus Curiae Brief (due May 14th). This means that the court of appeal will soon decide the issue of whether it was appropriate for Marin County to use a categorical exemption (rather than an EIR or negative declaration) to adopt its second generation single-use bag ordinance (a ban on plastic and charge for paper). Marin prevailed at the superior court level. No hearing has been scheduled yet.
Save the Plastic Bag Coalition v. San Luis Obispo Integrated Waste Management Authority - This case will also test whether a categorical exemption was sufficient under CEQA to adopt a second generation single-use bag ordinance. The hearing is set for March 22nd has been continued to a date TBA.
Save the Plastic Bag Coalition v. City and County of San Francisco - This is another test case as to whether a categorical exemption was sufficient under CEQA to adopt a second generation single-use bag ordinance. This case will also test SPBC’s state Retail Food Code preemption argument. No hearing has been scheduled yet.