In the United States Court of Appeals
For the Ninth Circuit
Docket Number: 04-56244
(DC No: CV 04-01857 RGK, Los Angeles Western Division)
Plaintiff – Appellant (ProSe)
US Citizenship and Immigration Services
Los Angeles County Department of Public and Social Service
California Department of Social Service
Defendants - Appellees
On appeal from the order of the US District Court dated May 18 2004
(and related order dated July 29 2004)
Brief of Appellant
423 East 7th Street, RM 528 emails: firstname.lastname@example.org,
Los Angeles, CA 90014 email@example.com
Table of contents
I. Statement of Jurisdiction. P. 5
A. The basis for the district court jurisdiction P. 5
B The basis for the Court of Appeal jurisdiction P. 5
C Filing date of the appeal P. 5
D Assertion that the appeal is from a final order or judgment
That disposes of all parties claims or information P. 5
II Issues presented. P. 6
III Statement of the case. P. 7
IV Statement of facts. P. 9
V Summary of arguments. P. 11
VI Standard of review. P. 12
VII Arguments. P. 13
A Introduction P. 13
B LASS can be held liable for misrepresentation, and is liable P. 13
in this particular case.
C Government code 815.2 impose a legal duty on the defendants, P. 20
and the plaintiff stated a claim upon which relief can be granted.
D The removal was not timely, so the 11th amendment should P. 22
not have even been an issue.
E In this case the use of the 11th Amendment violates
the Right to a Fair Trial (or Right to a Due Process). P. 23
F Even if the 11th amendment is found to apply, the jurisprudence P. 25
stipulates that the case should be dismissed without prejudice.
G Conclusion. P. 26
VIII Conclusion P. 27
This brief (and its 7 copies) is filed concurrently with the Excerpts of Record (and its 4 copies, 146 pages
each) and a motion for leave to appeal in forma pauperis (and its 4 copies, 11 pages each).
Table of authority
Freeman v. Oakland Unified School district (9th Cir. 1999) 179 F3d 846, 847
–error to grant summary judgment in favor of state entity. P. 25
Guild v. US, CA 9 (cal) 1982, 685 F.2d 304. P. 18
Jimenez- Nieves V. US, CA 1 (Puerto Rico) 1982, 682 F. 2d1,
remand 618 F. supp. 66. P. 19
Mc Guckin v. Smith (9th cir. 1992) 974 F2d 1050, 1053. P. 6
United Computer Systems, inc v. ATT (9 circuit 2002) 298 F3d 756 762. P. 23
Garcia v. Superior Court (1990) 50 cal. 3d 728,738 n.8, 268 Cal. Rptr. P. 14
779, 789 D. 2d 960 (citing Johnson; case remanded to permit
plaintiff leave to amend complaint to state cause of action for negligent
misrepresentation involving risk of physical harm… )
Harshbarger v. City of Colton, 197 Cal. App.3d 1335,1343 (1988) P. 17
Johnson v. State of California (1968) 69 cal. 2d 782.., p. 15
Michael J. By and Through Trout V. Los Angeles County, Dept. of
Adoption (app. 2 Dist 1988) 247 Cal. Rptr. P. 14
Page v. City of Montebello, 112 Cal.App.3d 658, 670 (1980) P. 17
Schonfeld v. City of Vallejo (1974) 50 cal App. 3d 401, 404 411, P. 14
123 Cal. Rptr. 669.
28 USC 1291 P. 5
28 USC 1442 (a) (1) P. 5, 7
28 USC 1446 (b) P. 5, 7, 12, 23
28 USC 2860 (h) P. 13, 18
Government code 815 P. 8, 11, 12, 13, 20
GC 815.2 P. 2, 8, 11, 12, 13, 17, 20,21
GC 818.8 P. 6, 8, 11, 12, 13, 14, 17, 15, 20, 22, 26
GC 822.2 P. 11,17, 20, 21
Civil Code 1709 P. 20
CC 1710 P. 20
Constitution / International Covenant
11th Amendment P. 2, 6, 7, 8, 12, 13, 21, 22, 23, 24, 25, 27
14th Amendment P. 24
International Covenant on Civil and Political Rights P. 24
Federal Rule of Appellate Procedure 4 P. 5
Federal Rule of Civil Procedure 8 P. 8
First Served Rule P. 7, 12, 23
AAUP background paper on the 11th Amendment (May-June 2000). P. 25
California Form of Pleading and Practice (CFPP). P. 13, 14, 16, 25
Rutter Federal Civil Procedure Before Trial (RutFCPBT). P. 25
Rutter Federal Appellate Civil procedure (RutFACP). P. 6
West’s Annotated California Code of Government, code 1-939 (WACCG). P. 13, 17, 20
28 USCA 2860 (h) P. 17, 18
I Statement of Jurisdiction.
A The basis for the district court jurisdiction.
The district court acquired jurisdiction over the case after a removal from the state court pursuant 28 USC 1442 (a) (1), and USC 1446 (b).
B The basis for the Court of Appeal jurisdiction.
28 USC 1291 gives appeal court jurisdiction over final order from district courts, and the concerned order is final (see section D below for the discussion of the order’s finality).
C Filing date of the appeal.
The appeal is timely because according to FRAP 4, when the Federal Government is a party, the time to appeal an order is 60 days after the date the order is entered. The order was entered on May 20 2004, so the appeal filed on July 16 2004 is timely. Moreover since the plaintiff filed a motion to reconsider within 10 days of the issuance of the order (ER 6 p 7), the time to appeal starts to run when the court rendered its decision on the motion to reconsider, in this case June 30 2004 (ER 6 p 7).
D Assertion that the appeal is from a final order or judgment that disposes of all parties claims or information.
‘An order dismissing claims effectively ends the merits of the main action, and is therefore a final order’. The part of the order concerning the LASS and CASS dismisses the claims against the LASS and CASS with prejudice, and is therefore final. And the part of the order concerning the USCIS claim is also final, even though it dismisses the claim against the USCIS without prejudice, because the District Court intended to terminate the action (and to give a possibility to file a new complaint at the Federal Court directly). The Rutter Federal for Appellate Procedure states: ‘An order dismissing ‘without prejudice’ (but leave to amend denied) may also be final judgment for purpose of appellate review, if the district intended to terminate the action ( while allowing plaintiff to file a new action elsewhere) [Mc Guckin v. Smith (9th cir. 1992) 974F2d1050,1053;]’.
Moreover, given the length of the initial complaint (44 p.) and the typeface used 12 and the one required 14, it is not possible to re-file a complaint with the 3 defendants and correct the problems (size,) mentioned by the judge. And, since the judge accepted the arguments of the LASS and CASS, he cannot possibly have meant to re-file a complaint with the three defendants at the Federal Court. So the order concerning the USCIS claim is also from a ‘practical point of view’ final.
II Issues presented.
A Did the District Court err in granting defendant LASS motion to dismiss with prejudice, on the following grounds:
(1) ‘LASS cannot be held liable for misrepresentation’, ‘The immunity conferred on public entities pursuant to 818.8 applies to intentional and negligent deceit and misrepresentation… The immunity is absolute. …Insofar as plaintiff alleges deceit, misrepresentation and suppression of fact against LASS, LASS is immune…And such causes of action are dismissed with prejudice’ (ER 1 p 6)
(2) ‘Plaintiff has not demonstrated that LASS has a legal duty to plaintiff’’ (‘…Therefore, in finding no basis for LASS’ liability, plaintiff claims against LASS must be dismissed’)? (ER 1 p 6, 7)
B Did the District Court err in granting defendant CASS motion to dismiss with prejudice, on the ground that ‘the 11th Amendment bars suits brought against states in federal court’? (ER 1 p 4, 5) And as collateral issue, was the removal timely under 1446 (b) and the ‘first served rule’ for multiple defendants accepted by the Ninth Circuit Court of Appeal?
III Statement of the case.
This is a complaint for money damages (amount demanded $1 700 000, increasing by $20 000 every month since February 04) against 3 publics entities, the US Citizenship and Immigration Services (USCIS), Los Angeles County, DPSS (referred to in the order and in this document as ‘LASS’), and the California Department of Social Services (referred to in the order and this document as ‘CASS’). It describes intentional misrepresentations (involving risk of physical harm and made by public employees guilty of corruption and actual malice), collateral to negligence in the performance of operational tasks. (ER 2 p 1- 44)
The complaint was filed on February 4 2004 at the Los Angeles Superior Court and removed to the Federal Court by the USCIS on March 18 2004 pursuant 28 USC 1442 (a) (1) and 1446 (b). In April, each of the defendants, USCIS, LASS, CASS, filed a motion to dismiss the case, while the plaintiff filed a motion to remand the case to the State Court. After various oppositions and replies to the different pleadings, the District Court rendered, on May 18 2004, an order denying the motion to remand and granting the three defendants motions to dismiss the case (ER 1 p 2-9), and on July 29 2004, a related order summarizing the decision (ER 1 p 10-11).
The Complaint which describes 7 misrepresentations and a suppression of facts and laws (and other wrongdoings) over a long (18 months) period, must be precise and is unfortunately (for the plaintiff) long (44 pages). Its structure follows the official state form for this type of complaint (ER 4 p 10-11), but it was still (strongly and unfairly) criticized by the Assistant US Attorney. The defendants LASS and CASS raised the issues discussed in this appeal [the immunity for misrepresentation (or not) under 818.8, the applicability of GC 815 (or 815.2), the failure (or not) to present a claim upon which relief can be granted, and the immunity (or not) under the 11th Amendment].
The district court agreed with (and repeated) almost all the defendants ‘remarks’ (even ‘lies’ or ‘incorrect statements’, see ER 1 p 3 last 2 lines, ER 4 p 2-4 and ER 5 p 2 l. 8-10) and ignored most of the plaintiff arguments. As the defendant, USCIS, it found the complaint too long and difficult to comprehend, eventually dismissed without prejudice the cause of action against the USCIS for violation of FRCP 8, and gave the plaintiff a possibility to re-file his complaint against this defendant (ER 1 p 9). And it accepted the arguments presented by the LASS and CASS on the legal issues described above and dismissed the causes of action against these two defendants with prejudice (ER 1 p 8,9).
IV Statement of facts.
Plaintiff is a native citizen of France who entered the United States on April 16, 2002, on the visa waiver program, then applied for political asylum to obtain the protection guaranteed to refugees (and to obtain indirectly a legal decision from the US justice that could help him to obtain justice against France). On September 5, 2002, plaintiff applied for Los Angeles County General Relief benefits, and as part of the application was directed to the INS office to obtain a verification of his immigration status. The ‘INS’ status verifier, Mr. Mahoney, identified the plaintiff as a ‘refugee’, which entitled plaintiff to reside in the United States for an indefinite period of time (ER 3, p. 1-2).
On September 25, 2002, plaintiff applied for Refugee Cash Assistance benefits. And his application was approved, effective the same day, but (1) certain benefits associated with the refugee status were denied, (2) the cash benefit and Medical protection were eventually and incorrectly terminated 2 months later on 11/30/02, and (3) the DPSS pretended that the plaintiff was not a refugee anymore on 12/01/02! The plaintiff contested the denial and early termination of the benefits and the allegations concerning his refugee status in a request for hearing at the administrative court and obtained an administrative law judge decision mostly in his favor confirming his refugee status (ER 3 p. 3-8).
The plaintiff alleges that (1) LASS civil servants did not follow the existing procedure (set up with the INS), at the end of September 02 on purpose to avoid asking the INS for a document confirming the plaintiff’s refugee status and the date his refugee status was granted (G845) (ER 2 p 11 l. 320-330); (2) the LASS and CASS civil servants misrepresented the facts, laws and procedures to avoid paying the benefits the plaintiff was entitled to receive and to avoid complying with the administrative law judge decision (ER 2 p 9-33, ER 3 p 9-10, 30); and (3) after that the LASS used a phone call with the INS to pretend that the plaintiff was not a refugee, the LASS and CASS used an INS altered and illegal document, a fraud (ER 3 p. 11-12) to pretend that the plaintiff was not a refugee anymore (ER 3 13-20).
[It seems that after November 14 2002, date at which the plaintiff filed his complaint against the social services and wrote to the press and media to explain that he had been granted the refugee status (and before December 1 2004), the INS record was changed, because the status verifiers eventually said that the plaintiff was no longer listed as a refugee on December 1st 2002 (the plaintiff does not know for sure, if the record was changed or if the status verifier started to lie).
This change of the record (or lie) conveniently ‘covered’ the errors made by the LASS on the plaintiff’s case, punished the plaintiff for complaining and ‘discouraged’ the press and media from discussing publicly the plaintiff’s case and proposals. But the INS management never denied the validity of the initial verification of status (listing the plaintiff as a refugee) certified by the administrative law judge, and instead the INS Refugee center accepted a certification made under the penalty of perjury under law stating that the plaintiff is a refugee (ER 4 p 31-34).]
The plaintiff also alleges and the evidences show that the LASS and CASS (and INS) misrepresentations and suppression of facts (and negligence in the performance in operational tasks) had for objective (1) to deprive the plaintiff from his rights (ER 2 p 42 l. 1293-1294), (2) to physically harm him by keeping him the street (or in homeless shelter,) (ER 2 p 42 l. 1195-1296), (3) to make him loose his asylum case (ER 2 p 8 l 216-219), (4) to diminish the responsibility of the social services employees in the errors made on his case (and others) (ER 2 p 18 l. 549-550, p 23 l. 681-684), (5) to discourage him from (and to punish for) denouncing the dishonest behavior of the different social services civil servants (ER 2 p 10 l. 305-306, p 15 l. 460-461 ), and finally, (6) to ‘discourage’ the press and media from discussing publicly his unusual grant of asylum and the different issues of his asylum application (particularly his 65 age limit proposal for Country Leaders and I.O. Chiefs that could have prevented the war with Iraq) (ER 2 p 8 l. 226-229, p 11 l. 336-337).
V Summary of arguments.
The immunity for misrepresentation under GC 818.8 is not ‘absolute’ and does not hold in this case, because (1) the misrepresentations involved a risk of physical harm, (2) they took place in the social services area, (3) the social workers who made them were guilty of actual malice and corruption, and (4) the misrepresentations were collateral to negligence in the performance of operational tasks.
GC 815 does not apply in this case, because GC 815.2 imposes a legal duty on the LASS (and other public entities) for the wrongdoings of their employees acting within the scope of their employment, and the immunity for misrepresentation given to public employees by GC 822.2 does not apply here, because the civil servants are guilty of actual malice, and corruption. And the plaintiff has demonstrated that LASS (and CASS) had a legal duty to the plaintiff, and is liable.
The removal was not timely, because it was filed 37 days after the defendant, USCIS, received the complaint, and 41 days after the first defendant, LASS, received the complaint, and therefore the 11th Amendment issue should not have even been discussed.
In this particular case the use of the 11th amendment violates the right to a fair trial (or right to a due process), a constitutional right, and therefore the use of the 11th Amendment is unconstitutional.
Where the 11th Amendment bars a federal suit, the federal court must dismiss the action without prejudice to its being re-filed in a state court.
VI Standard of review.
The De Novo standard of review applies to order in which the district court interprets or applies federal or state law, therefore it applies for the evaluation of LASS immunity for misrepresentation under GC 818.8. Similarly, the applicability of GC 815 or GC 815.2, the failure (or not) to state a claim upon which relief can be granted, the timeliness (or not) of the removal with regard to the ‘first served rule’ and the section 1446 (b), and the validity (or not) of the immunity granted by the 11th Amendment and of the dismissal of CASS cause of action with prejudice, are also issues for which the De Novo standard applies, because the district court interpreted or applied federal or state law on these issues.
The exceptions to the immunity for misrepresentation under 818.8 [and 28 USC 2860 (h)] are rare, but clearly described in law-books. And this immunity is an issue of great public concern (we have seen recently how the misrepresentations of the CIA analysts on the Iraqi weapons of mass destruction lead to a deadly and costly war, and, of course, how misrepresentations have also tragic consequences in the social services area, in adoption cases or in this case for example). Similarly, the unconstitutional use of the 11th Amendment by states is an important subject for appeal courts, it seems, and for the Supreme Court which has set up some new rules to prevent it.
The timeliness of the removal for cases with multiple defendants that was already addressed by the Ninth Circuit Court of Appeal, the applicability of 815 (or 815.2), the failure (or not) to state a claim upon which relief can be granted, and the inappropriate strategy against a homeless are issues more specific to the case, but they are also critical, because they are indissociable (inseparable) from the ‘general’ issues.
B LASS can be held liable for misrepresentation, and is liable in this particular case.
1) Exceptions to the immunity for misrepresentation under GC 818.8
and the CA Supreme Court interpretation.
The District Court (and the defendant, LASS) are clearly erroneous when they state that ‘LASS can not be held liable for misrepresentation’, and they must know it (particularly the LASS), since the LA County has already been found liable for misrepresentation [Michael j. By and Through Trout v. Los Angeles County, Dept. of Adoption (1988) …. ]. Moreover, Government Code (GC) 818.8 that gives immunity for misrepresentation to public entities, has several exceptions that are well documented. For example, the West’s Annotated California Code of Government, code 1-939, notes and decisions for GC 818.8 (page 234) explains that this immunity does not apply to cases in the social services area [it refers to the jurisprudence Michael j. By v. Los Angeles County, …. mentioned above ].
The California Form of Pleading and Practice volume 40 on page 118.7 also states: ‘the immunity from liability for misrepresentations does not apply to intentional misrepresentations involving a risk of physical harm. [Garcia v. Superior court (1990) (citing Johnson; case remanded to permit plaintiff leave to amend complaint to state cause of action for negligent misrepresentation involving risk of physical harm based on parole officer’s misrepresentation regarding a dangerous parolee)].’ And on page 128, it also stresses that: ‘Misrepresentation immunity is not applicable if public employee is motivated by corruption or actual malice, such as a conscious intent to deceive, vex, annoy or harm injured party in his or her business [Schonfeld v. City of Vallejo 1974]’, which is the case here.
Finally, it also gives on page 118.7 a general interpretation of the word ‘misrepresentation’ used in GC 818.8: ‘the Supreme Court has interpreted the term ‘misrepresentations’ to mean interference in the nature of the common law action for deceit with financial or commercial interests and not any conduct that literally could be called a misrepresentation such as misleading turn signal by a driver or the failure of state authorities to disclose the criminal and violent tendencies of a juvenile parole having placed in a forth home [Johnson v. State of California (1968) 69 cal ...].’.
So these jurisprudences, interpretation and the well documented exceptions in law-books demonstrate without any doubt (1) that, in certain cases, the immunity under 818.8 does not hold, (2) that the ‘LASS can be held liable for misrepresentation’, and (3) that LASS (and CASS) is liable for misrepresentations in cases involving risk of physical harm, or in the social services area, or when its employees are guilty of malice and corruption, which is the case here as we will see below.
2) The particular context of the case (risk of physical harm, social services area and employee guilty of actual malice and corruption).
It is written in several places of the complaint that the misrepresentations were made for the purpose of physically harming (‘hurting’) the plaintiff (ER 2 p 10 l. 304-305), of depriving him from his rights (ER 2 p 42, 1293-1294) and of robbing him his benefits, and that there were a ‘conscious intent to deceive, vex, annoy and harm injured’ plaintiff. The words ‘attempted murder’ (ER 2 p 8, ER 3 p 28), ‘malice’, ‘oppression’, ‘extreme cruelty’, and ‘corruption’ are even used on several occasions (ER 2 p 42 l. 1284, 1288).
3) Defendant jurisprudences are not relevant in this case.
Moreover, the jurisprudences mentioned by the LASS and used in the court order (Harshbarger v. the City of Colton, Page v. City of Montebello,) do not apply here. The ‘Harshbarger’ jurisprudence refers to a case involving ‘actual fraud’, not risk of physical harm, corruption or malice. The CFPP volume 40 page 118.8 states that this jurisprudence establishes that ‘the absolute immunity provided by Gov. Code 818.8 prevails over the general statement of Gov. Code 815.2 establishing vicarious liability for a public employee’s acts and precludes a public entity from being held vicariously liable for employee’s fraudulent concealment, even if the employee may be held liable under gov. code 822.2 for actual fraud (not for corruption or malice, as we have seen above)’.
And the jurisprudence, Page v. City of Montebello, which states that ‘the immunity (for misrepresentation) is absolute’, does not apply here because it refers to a case involving an ‘unauthorized promises’ (see WACCG p. 235). It is the case of an undercover indicator who was shot as he was helping the police to arrest narcotic dealers, and who wanted to be compensated as policemen, which has, of course, nothing to do with our case in the social services area.
4) Federal jurisprudences.
Finally, the 28 USC 2860 (h) which gives the immunity for misrepresentations to the federal government, has also exceptions which applies in this case. For example, the notes on 28 USCA section 2680 (h) explain that the immunity does not apply ‘for personal injury or property damages arising from negligent performance of operational tasks’, which is the case here. (It applies only ‘for injury resulting from commercial decisions taken in reliance on governmental misrepresentation’, which is not the case here). And gives as example: ‘Designing and planning dam and reservoir was an operational task and the government performed it negligently and any communication of misinformation in connection therewith was collateral; thus misrepresentation exception to federal tort Claim Act did not apply since in essence of complaint was one for failure to take due care in performance of voluntary task. [Guild v. US, CA 9 (cal) 1982,685 F.2d 304].’
Or ‘Claim for damages sustained as result of Social Security Administration’s stopping payment on benefits checks was not claim covered by misrepresentation ‘exception to this chapter and section 1346 (b) of this title, even though harm occurring was caused by keypunching error resulting in entry into a social security record erroneous ‘facts’ of the date of recipient’s death, where such false keypunch statement was not made to plaintiff and he did not rely upon it. [Jimenez- Nieves V. US, CA 1 (Puerto Rico) 1982, 682 F. 2d1, remand 618 F. supp. 66].’
The complaint clearly explains that in addition to the misrepresentations, the LASS performed its duty, operational tasks, negligently. For example on page 39 and 40 (ER 2 p 39-40): ‘When one knows that the LACDPSS cheats and lies on about everything they can cheat or lie on to rob the poor (they are supposed to help), one can easily understand why. The plaintiff has mentioned the opening of almost all the homeless letters that the judge had said it raised ‘serious constitutional right concerns’, but they behave very badly in many other areas.
They don’t respect the time to present the document like the compliance report, they steal (or delay the distribution of) letters to make the poor loose their benefit (they made the plaintiff loose his food stamp benefit this way, he had to complain to the administrative judge to get these food stamps back!). They don’t motivate their notices of action, they refused to present the regulation as the law requires them to do. ...!’. The misrepresentations made by the LASS and CASS employees were, therefore, collateral to negligence in performance of operational tasks, and the immunity for misrepresentation does not hold according to the federal standard either.
C Government code 815.2 imposes a legal duty on the defendants, and the plaintiff stated a claim upon which relief can be granted.
1)_Government code 815.2 applies in this case, and not GC 815.
The defendant, LASS, and the court order mentions that ‘unless there
is an express statute imposing a duty on a public entity, it cannot be held liable in tort. Cal . GOC code 815.’, which is true, but they omit to write that government code 815.2 imposes a legal duty on the defendants (LASS, CASS,) since it states that: ‘a public entities is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to cause of action against that employee or his personal representative’, which is the case here.
The injury is caused by the misrepresentations (and other wrongdoings) of the LASS and CASS (and INS) civil servants! The plaintiff also described the direct links between the wrongdoings and the injury (and damages) (ER 4 p 14 l 4-12). And as we have seen above the immunity under GC 818.8 and 822.2 does not apply here. Unlike the court writes it in its order, the plaintiff has given the basis for LASS (and CASS) liability and explained that the immunity did not hold in this case (ER 4 p 5, 6, 13-16).
2_ The plaintiff has demonstrated that the LASS had a legal duty to the plaintiff and that LASS (and CASS) is liable for these wrongdoings.
When the court order writes that the ‘plaintiff contends that the following California Civil Code Sections demonstrate LASS’s statutatory duty to plaintiff: 1709, 1710 (1), 1710 (2),…, ‘ this is not true. The plaintiff did not write that these statutes specifically imposed a duty on the LASS, it used them as general statutes that define the type of wrongdoings for anyone including civil servants and public entities. And the court omits to write that the plaintiff mentioned immediately after that Government code 815.2 made the LASS liable for the misrepresentation of its employees, and that GC 822.2 granting an immunity to public employees did not apply in this particular case (see ER 4 p 15 l. 24-28 and p. 6 l. 1-4) (see also ER 4 p. 5 l. 191-225, p. 7 l. 272).
The plaintiff also explained that the LASS must follow the procedures and regulations described in the manual of policies and procedures (MPP, in this case the ones linked to the benefits granted to refugees, to the compliance with administrative law judge decisions, and to the exchange of information with the INS, which they did not do) (ER 4 p 7 l. 262-270). And that according to West’s Annotated California Government Code 1-939 counties are sentenced for not following the regulation in the social services area (ER 4 p. 10 l. 295-296). Therefore, both the LASS and the CASS are liable and had duties toward the plaintiff, and this is clearly explained in the plaintiff’s complaint and memoranda, so the plaintiff has stated a claim upon which relief can be granted.
3) An inappropriate strategy against a homeless.
The LASS did not even contradict the plaintiff when he explained in his motion to reconsider that the Court had omitted to take into consideration the arguments presented above. And the CASS which had started to use the same arguments as the LASS at the Superior Court (ER 5 p 13 -16) eventually changed its strategy after the plaintiff filed his opposing memorandum to LASS demurrer, and used instead the 11th Amendment in the Federal Court. This means that both defendants know that the immunity under 818.8 does not or should not hold, and that they are or should be liable for the wrongdoings described. It also means that they try to take advantage of the fact that the plaintiff does not have a lawyer and is living in extremely difficult conditions, by forcing him to write memoranda and by wining time to eventually send him in the street again or harm him (the plaintiff broke his elbow in May and could not finish his motion to reconsider), which is unfair. Usually social services are supposed to help the poor.
Moreover, the defendants refused to discuss the factual issues of the case in an ADR procedure [to avoid having to pay the benefits they should have paid at the time of the wrongdoings, benefits that could help (or could have helped) the plaintiff to live in better condition while defending his rights]. This is particularly unfair when one knows that the LA County finances the ADR program, it seems, and encourages parties to use this ADR system to lower the cost of procedure. This is also inappropriate for the community, because the damage is increasing rapidly (+ $20 00/ month). The LASS and CASS could have easily discussed the factual issues in an ADR procedure while letting the courts decide on the legal issues, if they really thought that they were not frivolous.
D The removal was not timely, so the use of the 11th Amendment should not have even been an issue.
The proof of service and acknowledgement of receipt of the complaint and summons for the USCIS that the plaintiff presented in his motion to remand filed on April 12 04 (ER 4 p 26-29), demonstrates that the defendant, USCIS, received the complaint and summons on February 9 2004, 37 days before March 18 date of the removal notice, and therefore that the notice of removal is not timely according to 1446 (b), because it is filed more than 30 days after the defendant (USCIS) received the complaint. (The defendant is the USCIS, not the US attorney or the Attorney General).
Moreover the ‘first served rule’ for multiple defendants cases presented by the plaintiff was accepted by most courts that have addressed the issue [including the 9th circuit court, United Computer Systems, inc v. ATT (9 circuit 2002) 298 F3d 756 762]. This rule stipulates that the 30 days removal period for multiple defendant cases begins on the date the first defendant receives the complaint and summons. In this case the LASS received the complaint on February 6 2004 (ER 4 p. 30), 41 days before March 18 date of the removal notice. Therefore the removal is even less timely according to the first served rule and the use of the 11th Amendment should not have even been an issue.
E In this case the used of the 11 Amendment violates the Right to a Fair Trial (or Right to a Due Process).
1)_The unconstitutional use of the 11th Amendment.
The plaintiff argued and argues that, if both, the State of California and the Federal Government, are ‘joint defendants’ in a case with no separate and independent causes of action (ER 4 p 24,25), and that, at the same time, the federal government refuses to be judged at the State Court, and the State of California refuses to be judged at the Federal Court (with the 11th Amendment), the plaintiff’s fundamental right, right to a fair trial, is violated, since it has simply no access to justice (ER 4 p 18-19). This argument is based on good sense, reason and logic, and therefore is legal reasoning and supports the fact that the use of the 11th Amendment in this case is unconstitutional. When the order states that ‘plaintiff contentions are without support or cogent legal reasoning’, it is then obviously erroneous.
2) The right to a fair trial or the right to a due process.
The plaintiff mentioned that the ‘right to a fair trial’ is guaranteed by the International Covenant on Civil and Politic Rights (ER 4 p 18), but it is also guaranteed by the US Constitution (the 14th Amendment), through the right to a due process. The plaintiff thought that the US Constitution also guaranteed the right to a fair trial, but could not find the precise reference in a short time (because the right to fair trial is included in the right to a due process, so under a different name). This is why he used the ICCPR, which was ratified by the US congress in 1992 ‘with a number of reservations, understanding and declarations. In particular, the Senate declared that “the provisions of articles 1 through 26 are not self-executing” … to clarify that the covenant will not create a private cause of action in US Court’.
But here, the use of the ICCPR is not the important point, because the right is also guaranteed by the US Constitution. The important point is the reasoning explaining that the use of the 11th Amendment in this particular case (multiple defendants, US and State, and no independent and separate causes of action) violates the right to a fair trial or the right to a due process guaranteed by the 14th Amendment. And when the court writes that ‘the authority plaintiff cites for support is not binding legal precedent or relevant to the present action’, it missed the important point, the reasoning which demonstrates that CASS uses the law improperly to try to avoid responding to grave allegations which created (e) a grave prejudice to the plaintiff.
3) An ‘unconstitutional’ behavior.
Using the 11th Amendment to avoid (among other reasons) that 2 judges respond to allegations of misrepresentation of facts and laws is more than unfair, especially in the particular context of the case. Unfortunately this unconstitutional behavior does not seem to be unusual for states since the Supreme Court has given ‘guidelines’ to override States’ immunity.
An AAUP background paper on the 11th Amendment (May –June 2000) states: ‘News rules. The Supreme Court now insists that congress can override states immunity from suit only when it follows a new set of rules. Specifically, congress must:
- enact a law under the fourteenth amendment to enforce a constitutional right equal protection, due process, or voting rights specifically described in the fourteenth amendment.
-make ‘unmistakably clear’ its intention to abrogate states’ rights under the 11th amendment;
-demonstrate that the legislation is responsive to a widespread record of ‘unconstitutional behavior by states…’
F Even if the 11th Amendment were found to apply, the case should be dismissed without prejudice.
The Rutter Federal for Civil Procedure Before Trial states that: ‘Where the 11th amendment bars a federal suit, the federal court must dismiss the action without prejudice to its being refilled in a state court according to jurisprudence: [Freeman v. Oakland Unified School district (9th Cir. 1999) 179 F3d 846, 847 –error to grant summary judgment…].’. So even if this Court decides that the 11th Amendment applies in this case, the cause of action against the CASS should be dismissed without prejudice to give the plaintiff a chance to re-file his complaint at the state court.
It appears clearly in the above paragraphs that the District Court made obvious errors on several important issues and that it omitted to consider several arguments presented by the plaintiff, which lead to an extremely unfair order for the plaintiff who suffered a grave prejudice, and lead to an inappropriate order for the community since it encourages the LASS and CASS (and others) to lie and to behave in an inappropriate manner.
The poor and the very poor are an extremely vulnerable population that is often persecuted and that has very little possibility to denounce its suffering and its unfair condition to the justice. To present a complaint to the justice is extremely difficult when one live in so difficult conditions, particularly when one knows that the legal help system is very imperfect and does not address properly the poor needs. It is not in the best interest of the community to let the social services take advantages of the weakness of the poor to rob them their benefits and torture them, because the social services have exactly the opposite role.
The Appeal Court can encourage the Counties and the State of California to pay a more careful attention to this extreme vulnerability of the poor population and encourage them to give more accurate information to these extremely vulnerable ‘clients’ by pointing out that the exception to the immunity for misrepresentation in the social services area (under 818.8) does not just apply to the Department of Adoption, but also to the Department of Public Social Services and to the (CA) Department of Social Services. Similarly, the unconstitutional use of the 11th Amendment should not be encouraged, especially by the social services against a homeless.
The plaintiff did not address the punitive damages issue, for clarity purpose, but the Court can see the different arguments presented on this subject (ER 4 p 9, ER 5 p 5). The punitive damages are addressed against the guilty employees and GC 825 allows the LA County to pay them, because its employees were acting within the scope of their employment and because it is in the best interest of the LA County (ER 4 p 9). Anyhow, according to the RutFACP: ‘a complaint is not subject to a motion to dismiss because the prayer seeks relief that is not recoverable as a matter of law’.
The District Court order granting LASS and CASS motion to dismiss is clearly erroneous. The LASS can be held liable for misrepresentation, and it is clearly explained in the different pleadings that, in this case, it is liable, so the order should be reversed and the causes of action against the LASS should be remanded for further proceeding (with leave to amend). Similarly, the use of the 11th amendment is unconstitutional in this case and the cause of action against he CASS should be remanded for further proceeding (or at the very least the dismissal should be without prejudice to give a chance to the plaintiff to re-file his complaint at the State Court).
Dated: August , 2004
By : _____________
Certificate of compliance pursuant to Fed. R. App. 32 (a) (7) (C) and Circuit rule, rule 32-1 for case no: 04-56244
Pursuant to Fed. R. App. O. 32 (a) (7) (C) and Ninth circuit Rule 32-1, I certify that the attached brief is proportionally spaced, has a type face of 14 points and contains 7 306 words (777 lines).
Dated August , 2004
Statement of related cases
Appellant is aware of no related case pending before the court.
Certification of Service
The undersigned hereby certifies that on August 2004, he personally delivered 2 copies of the foregoing (brief) to the following (or their representatives):
Mrs. Debra Khantamour, Attorney for the Los Angeles County, DPSS (defendant), at 5850 Canoga Avenue, suite 600, Woodland Hills, CA 91367, Fax : (818) 380 0028.
Mrs. Jung D. Shin, Deputy Attorney General for the CA Department of Social Services (defendant) (State of California), 300 South Spring, Suite 5212, Los Angeles, CA 90013, FAX : (213) 897 2810.