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State of California, |

Department of Social Services (Defendant and Respondent)

Appeal from an Order of Dismissal

of the Superior Court, County of Los Angeles,

Honorable Judge Morris Jones

________________________________________________

Appellant’s Opening Brief

________________________________________________

Pierre GENEVIER

423 East 7^th Street, RM 528

Los Angeles, CA 90014

Ph.: (213) 622-1508

Emails: p_genevier@yahoo.com, pierre.genevier@laposte.net

Appellant pro se

Table of contents

Page

Introduction 5

Statement of the Case 6

A Nature of the action and relief sought 6

B Summary of facts 6

C Judgment of the Superior Court and Statement of Appealability 8

D Standard of review 8

Argument 9

A GC 815.6 imposes a duty on public entity independently

from any ‘eventual’ judicial immunity its employees may enjoy. 9

1) Legal Standards concerning GC 815.6. 9

2) The statutory basis for the claim of negligence against the State of California. 10

3) The Superior Court grave and prejudicial errors. 18

B Mendoza, Castello, Campbell do not enjoy the

quasi-judicial immunity because their actions were taken outside of

all jurisdiction and were ministerial in nature. 18

1) Legal Standards concerning the ‘character’ of the DSS hearing process

and the judicial immunity. 18

2) How and why the exceptions to the judicial immunity applies in this case. 20

3) The Superior Court grave and prejudicial errors. 28

C State of California does not enjoy the immunity for misrepresentation

under GC 818.8 because the misrepresentations were made in the context

of delivery of social services and involved a risk of physical harm. 28

1) The conclusions of the 2^nd District Appeal Court in Michael J. By v. Los Angeles

County Department of Adoption. 29

2) Johnson v. State (1968) and Jopson v. Feather River. 32

3) Defendant’s legal authorities. 33

4) The Superior Court grave and prejudicial error. 35

Conclusion 35

CT stands for Clerk’s Transcript [CT 76 l. 46 = Clerk’s Transcript page 76 line 46]

Table of authorities

Page

United States constitution / Federal Statutes

11^th Amendment 6, 33

18 USC 1546 8, 16, 17, 22

18 USC 1512 17, 22

18 USC 1513 17

8 CFR 207.9 22

California statutes

CC 1094.5 12, 22

CC 1714 (a) 10, 16

GC 810.6 10, 11, 12

GC 815.2 10, 16

GC 815.6 5, 9, 10, 11, 12, 14, 15, 16, 18, 35

GC 818.8 6, 9, 15, 18, 28, 30, 35

GC 821.6 14

GC 822.2 14, 15, 18, 25, 30

PC 182 16, 17

Cases

Butz v. Economou 438 US 478, 513-514 (1978) 26, 27

Bradford v. State of California (1975) 36 CA 3d 16, 19,

111 Cr 852. 10, 14

Cleavinger 474 US 193, 200 (1985) 27

Connelly v. State of California (1970) 3 Cal. App. 3d 744,

84 Cal. Rptr. 257 31, 32

Crocker National Bank v. City and county of San Francisco (1989)

49 Cal. 3d 881, 264 Cal. Rptr. 139, 782 P2d. 278 8

Grenell v. City of Hermonsa Beach (1980) 103 Cal. App. 3d. 864 15

Harshbager v. The City of Colton (1988) 197 Cal. App. 3d 1335 34

Haggis c. City of LA (2000) 22 C 4^th 490, 499’ 11, 16

Page

Hoff v. Vacaville United School District (1998) 19 Cal 4^th ed 925 16

Imen v. Glassford (1988) 201 Cal. App. 3d. 898,

247 Cal. Rptr. 514 19

Johnson v. State of California (1968) 69 cal. 2d 782-800 29, 32

Jopson v. Feather River Air Quality Mgmt. Dist.,

133 Cal. Rptr. 2d 506, 507 (Cal. Ct. App. 2003) 32, 33

Law officesof Dixon R. Howel v. Vally (2005)129 Cal. App. 4^th

1076, 1088, 29 Cal. Rppr. 3d 497 8

Masters v. San Bernadino County Employees Retirement Association

(1995) 32 Cal. App. 4^th 30, 42-43 34

Michael J. V. Los Angeles County, Department of Adoption

(app. 2 Dist 1988) 247 Cal. Rptr. 28, 29, 30, 31, 32

Mireless v. Waco (1991) 502 US 9, 11-12, 112 S. Ct. 286,

116 L. Ed. 2d 9 19

New Alaska Development Corp. v. Guetschow, 896 F. 2d 1298

(9 C. 1989) 19, 25

Page v. City of Montebello, (1980), 112 Cal. App. 3d 658 34

People v. Sims (1982) 32 Cal. 3d 468,

186 cal Rptr. 77, 651 P 2a 18, 22

Ramos v. Merced County (1971) 4 Cal. 3d 685,

94 Cal. Rptr. 421, 484 P 2d 93 25

State v. Superior Court (Perry) (1984) 150 Cal. 3d 848, 197 Cr 914 9

Schonfeld v. City of Vallejo (1974) 50 cal App. 3d 401,

123 Cal. Rptr. 669 34

Scott v. Los Angeles County 27 Cal page 145 11, 25

Shore v. Howard N.D. Tex. 1976 4414 F. supp 379 28

United States v. Neustadt (1961) 366 U.S. 696, 711, fn. 26 31, 32

Treatise, law review, and other references

The California Tort Liability practice book 9, 14, 16

The California form of pleading and practice 33

The California Government Code 1-939 book 33

California Manual of Policy and Procedure 7, 11, 12, 13, 16, 23, 24, 25, 31
Introduction.

In March 2003 appellant asked respondent, California Department of Social Services (DSS), to force the Los Angeles County Department of Public Social Services (DPSS) to comply fully with the DSS administrative law judge decision (CT 37-42) ordering the DPSS to pay several months of refugee (RCA) benefits to appellant. In response to this request, the 3 DSS employees mentioned in this complaint (Judges Mendoza and Castello, and Mr. Campbell) wrote 3 letters (CT 49-56) (a) that covered up the DPSS effort to steal appellant RCA benefits, (b) that did not encourage the DPSS to comply fully with the decision, (c) that did not ask the DPSS to follow the appropriate procedure to criticize it, and (d) (not least) that even changed the decision (including the certification that plaintiff is a refugee and the number of months of cash benefits to be paid,) outside the formal appeal process (rehearing, petition at the Superior court).

As the result, appellant suffered a very serious prejudice [since he was sent more than 16 times in the street, could not find a job, had all the possible problems with his refugee status, and even eventually became very sick (chest pains,, other cardiovascular problems,) (CT 28)]. He managed to file a civil lawsuit against the DPSS, USCIS, and DSS for misrepresentation, and after a long process, a new complaint for misrepresentation and negligence against the DSS (CT 5-63) is now before you. This Appeal Brief explains that the Superior Court erred when it dismissed the case on the ground that the DSS enjoyed the judicial immunity and the immunity for misrepresentation because: first, GC 815.6 imposes a duty on the State of California independently from any immunity his employees may enjoy; second these DSS employees do not enjoy the quasi judicial immunity in this particular case because their actions were taken outside of all jurisdiction and were ministerial in nature; and finally the immunity for misrepresentation under GC 818.8 does not apply in this case in the social services area.

Statement of the case.

A Nature of the action and relief sought.

This is a complaint for money damages [total $1.060 000 = general damages ( wages loss $660 000 increasing by $20 00 every month) + special damages ($400 000 loss of years of life expectancy and psychological damages,) (CT 28-29)] for intentional misrepresentations and negligence against the California Department of Social Services. It follows an initial complaint for misrepresentation (only, filed on February 4 2004) against the US Citizenship and Immigration Services, the Los Angeles County, DPSS, and the California Department of Social Services that was removed to the Federal Court and dismissed with prejudice for the claim against the State of California because of the 11^th amendment immunity (CT 8). The 9 Circ. Appeal Court eventually asked the District Court to change the dismissal with prejudice to give appellant the possibility to re-file his complaint at the State Court (CT 8). This new State Court complaint was dismissed recently and is now before you.

B Summary of facts.

Appellant 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, appellant 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 (CT 6-7). The ‘INS’ status verifier, Mr. Mahoney, identified appellant as a ‘refugee’, which entitled him to reside in the United States for an indefinite period of time (CT 33-34).

On September 25, 2002, appellant applied for Refugee Cash Assistance benefits, and his application was approved effective the same day, but: (1) certain refugee benefits were denied, (2) the cash benefit and Medical protection were eventually and incorrectly terminated 2 months later on 11/30/02 (CT 7), and (3) the DPSS pretended that appellant was not a refugee anymore on 12/01/02 (CT 36)! Appellant 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 (CT37).

The DPSS refused to comply fully with Judge Tolentino’s decision (see notices of action, CT 44-46), so appellant asked defendant DSS to force the DPSS to comply fully, but it refused and instead its 3 employees mentioned here sent 3 letters (CT 49-56) that changed Judge Tolentino’s decision outside the formal appeal process. Appellant alleges that defendants (Mendoza, Castello, Campbell) (1) misrepresented the facts, laws and procedures to avoid asking the DPSS to comply fully with the administrative law judge decision and to prevent the payment of the benefits appellant was entitled to receive (CT 7, 8-27); (2) were negligent when they did not follow several MPP regulation articles and procedures, and violated federal statutes (18 USC 1546,) (CT 7, 30-32); and (3) obstructed justice when they used an INS altered document (CT 47-48) to pretend that appellant was not a refugee anymore, and when they refused to force the DPSS to present its critics and the altered verification of status they used to the LA Superior Court (CT 7).

C Judgment of the Superior Court and Statement of Appealability.

The Superior Court of California, County of Los Angeles, by the Honorable Judge Morris Jones, rendered its final order dismissing the complaint with prejudice on March 3 2006 (CT 185-196); and the notice of ruling was entered on March 7 2006. A motion to set aside the order of dismissal and to enter another and different order was filed on March 17 2006 (CT 166-199), and denied on April 26 2006 (CT 235). A timely (notice of) appeal was filed on May 4 2006 (CT 237). The appeal is from a judgment (order) that finally disposes of all issues between the parties.

D Standard of review.

The standard of review used in this appeal is ‘independent review’ (or De novo) because:

‘when the facts are undisputed and the only issues in appeal is the proper interpretation of a statute, the appellate Court independently review it. [Law Offices of Dixon R. Howell v. Vally (2005) 129 Cal. App. 4^th 1076, 1088, 29 Cal. Rptr. 3d. 497 whether statue requires dismissal of action is questions of statutory interpretation independently reviewed by appellate court)]’.

Moreover, the question of duty to care in a negligence case is also reviewed independently [Crocker National Bank v. City and county of San Francisco (1989) 49 Cal. 3d 881, 264 Cal. Rptr. 139, 782 P2d. 278].

Argument.

In its dismissal order (CT 185-196), the court recognized that (a) the complaint was timely (CT 190 line 24-27) , and that (b) GC 815.6 imposed liability on a public entity where it may be otherwise immune when 3 conditions are met: (a) existence of an enactment imposing a mandatory duty; (b) this enactment intent to protect against the risk of the kind of injury suffered by the plaintiff; (c) the breach of the mandatory duty resulted in plaintiff’s injury (CT 193 l. 12-20), but it did not apply the provisions of this statute (GC 815.6), and instead concluded that defendant, State of California, enjoyed the judicial immunity of its employees (CT 192 l. 24-27); and (indirectly) was entitled to the immunity for misrepresentation pursuant GC 818.8 (CT 193). The Superior Court made 3 grave and prejudicial errors since it ended an otherwise perfectly legitimate complaint as the court will see below, and maintained appellant in difficult living conditions.

A GC 815.6 imposes a duty on public entity independently from any ‘eventual’ judicial immunity its employees may enjoy.

1) Legal Standards concerning GC 815.6.

The California Tort Liability Practice book states:

‘Government code 815.6 provides that “ Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” The three-prong test must be satisfied to establish a basis for public entities liability under G. C. 815.6 (see State v. Superior Court (Perry) (1984) 150 Cal. 3d 848, 854, 197 Cr 914);

· an enactment must impose a mandatory, not discretionary, duty;

· The enactment must intend to protect against the risk of the kind of injury suffered by the plaintiff;

· The breach of the mandatory duty must be a proximate cause of plaintiff’s injury.”

‘Under the GC 815.6, the mandatory duty liability of public entity is not predicated on the theory of vicarious liability under GC 815.2 for the tort of its employees. Rather, GC 815.6 provides a basis of direct liability entirely independent of the derivative liability created in GC 815.2 (see Bradford v. State of California (1975) 36 CA 3d 16, 19, 111 Cr 852.). Moreover, public entity liability under GC 815.6 is not subject to the general rule that a public entity is entitled to the benefits of applicable employee immunity .

It follows that mandatory duty liability of a public entity under GC 815.6 is not dependent on proof of liability of employees, whose acts or omissions constituted the alleged non compliance with the entity’s statutory duty (on a showing of specific employee negligence). Because the tort liabilities of public entities under the tort claim act are cumulative in nature, the absence of a basis for derivative liability under GC 815.2 does not affect the availability of direct liability under the mandatory duty theory of GC 815.6.’. ‘Under GC 815.6 for mandatory duty liability to exist, the mandatory duty must be imposed by an enactment, ‘enactment is defined as ‘constitutional provision, statute, charter provision, ordinance or regulation” GC 810.6’

2) The statutory basis for the claim of negligence against the State of California.

As seen above there are two possible statutory basis for a negligence cause of action against a public entity: first, GC 815.2 that imposes a vicarious liability for the tort of its employees, combined with CC 1714 (a) that imposes a duty to care on everyone including public employees; and second GC 815.6 that imposes a direct liability for negligence when the 3 conditions described above in paragraph 1) are met. Defendant has contended that its employees should be entitled to the quasi-judicial immunity (CT 129-131), and that according to GC 815.2 b) this immunity confers an immunity on the public employer – the State of California. Sadly the Superior Court erroneously agreed with defendant (CT 192) although the necessary 3 conditions for GC 815.6 to apply are met, and there are allegations of criminals statutes violations for which there cannot be any immunity.

a) MPP is an enactment that imposes a mandatory duty on defendants.

First, the fact that MPP is an enactment as defined in GC 810.6 that imposes a mandatory duty on defendant DSS (and on counties) was stressed in Scott v. Los Angeles County 27 Cal. App. 4^th page 145:

‘Welfare and institutions code section 16501 requires the DSS to establish regulation for the … The regulation formerly found in division 30 of the DSS manual… were regulation established by the DSS pursuant to section 16501. These regulations, as are their successors regulations.. were duly adopted pursuant to administrative procedure act (GC 11340 et seq) and filed with the Secretary of State (se. Cal. Regs. tit 22, div 2 pt 1, “Department of social services – Manual of policies and procedures (MPP)’). The regulation thus have the force of law and are matter…’.

On the next page, it is explained that these MPP articles are mandatory requirements ‘.. not the court by way of excusing violation of mandatory requirements’, or impose a mandatory duty. [see also ‘Social worker was not immune from liability under discretionary acts immunity for alleged negligent supervision of foster placement; social worker’s failure to comply with regulations regarding supervision of foster care was ministerial and not discretionary because regulation (MPP) afforded social worker no discretion to visit foster child less frequently than monthly to determine adequacy of placement’. (Scott v. County of Los Angeles (1994) 27 cal. App. 4^th 125, 141 –142, 32 Cal. Rpt. 2d 643)].

And this is also ‘confirmed’ in the California Tort liability Practice book page 465 ‘a mandatory duty is often held to arise when a duty is explicitly phrased in the enactment using language such as ‘shall’ or must’ Haggis c. City of LA (2000) 22 C 4^th 490, 499’, which is the case here (CT 222).

b)_The three-prong test establishing liability under GC 815.6 .

Then in the present case, it is obvious that appellant damages resulted not only from the DPSS refusal to pay the refugee (RCA) benefits as described in the Manual of Policy and Procedure (MPP), but also from the DSS refusal to follow the procedures and articles related to the state hearing process described in the MPP (CT 31 l. 730-735). The three-prong test establishes therefore without any doubt the liability of the DSS because:

1_As mentioned in p. 2) a), the Manual of Policy and Procedure (MPP) that is the basis of administrative law judge decision (and ‘regulates’ the work of both the LA County DPSS and of DSS administrative law judges) [and CC 1094.5] is [are] an enactment [s] as defined in GC 810.6 that imposes a mandatory duty on defendant State of California (and LAC DPSS).

2_This enactment –MPP- intends to protect against the risk of the kind of injury suffered by appellant since it regulates the issuance of the refugee benefits, and the hearing process in case of problems with the County DPSS. The MPP articles and procedures and civil code (1094.5) (a) determine client eligibility for RCA and the amount of benefit to be paid; (b) require dissatisfied parties (during the DSS hearing process) to appeal the decision in a rehearing (art. 22-065.1) or a petition at the Superior Court (CC 1094.5); (c) require the DSS to evaluate the compliance and issue a notice or notification accordingly (CT 222); and (d) give the Superior Court (an impartial ‘hearing officer’ after the review of the issues of the case by the DSS) the chance (if no rehearing resolved the problems) to review the critics to administrative law judge decisions (here Judge Tolentino’s decision); they are therefore designed to prevent the loss of RCA benefits (basic social benefits necessary to survive) due to (i) critics of an administrative decision outside the formal appeal; due to (ii) the refusal to follow the procedure to criticize administrative law judge decision; and due to (iii) the lack of review of the critics by impartial officers, a presiding judge covering the wrongdoings of a county; and the change of the certification of a refugee status by unauthorized officers.

3_And the breach of the mandatory duty [the refusal to issue a notice about the compliance encouraging the LA County DPSS to follow the appropriate procedure to criticize the administrative law judge decision or forcing the DPSS to comply fully with judge Tolentino’s decision, and the change of the decision outside the formal appeal process (CT 31)] prevented appellant from receiving the refugee benefits granted in judge Tolentino’s decision (and sent him in the street many times,); they prevented a judge of the Superior Court from exposing the wrongdoings at the INS and at the DPSS (and CA DSS), and from confirming the refugee status. And therefore lead to appellant damages and injury (CT 28-29).

Defendant incorrectly stated (CT 209) that MMP art. 22.078.6-.61-.62-.4 (CT 222) used by appellant did not impose a duty on the State of California, but rather concerned mainly the DPSS. This is not true of course as the Appeal Court can see since 22.078.6-61-62 ask (or order) the DSS to evaluate the DPSS compliance report to issue either a notice or notification on the compliance. [Moreover, according to 22-000 .1 ‘The responsibility for providing a full and impartial hearing to the claimant rests jointly with the county and the state department’; and to 22-000.11 ‘The state department is responsible for the overall administration of the hearing process and the conduct of each hearing’.].

And the other articles describe the responsibilities of the DPSS and therefore are used by the DSS to determine if the county has assumed these responsibilities properly. It is also clear that (a) the overall objective of the MPP regulation is to make sure that the poor get the benefits they are entitled to receive, even if a county tries to steal them, and that (b) the DSS has for duty to design the MPP and to make sure it is applied properly. Finally, defendants argued that ‘plaintiff had failed to specifically plead the particular enactment relied on that creates the mandatory duty’ (CT 207), which is wrong see CT 147, CT 229-230, CT 5-32.

c) The cumulative nature of statutes imposing liability and the case Bradford v. State of California.

The cumulative nature of statutes imposing liability is stressed in the California Tort Liability Practice book and of course in the case Bradford v. State of California, which is very similar to this case since it refers to a case involving the judicial immunity. The court in Bradford v. State of California (1973) 36 Cal. 3d 16 states:

‘In a nutshell the state’s erroneous concept is that plaintiff is out of court because any state employee for whose omission the state could be vicariously liable under 815.2, has immunity by virtue of the employee immunity provided for GC 821.6 (judicial immunity); Therefore direct liability imposed by section 815.6 may be discharged. This arguments completely overlooks the legislation committee comments to section 815: ‘ In general, the statutes imposing liability are cumulative in nature, ie, if liability cannot be established under the requirements of one section, liability will nevertheless exist if liability can be established under the provision of another section’. ‘If statutes imposing liability are cumulative, the fact that the derivative liability under section GC 815.2 may be nullified by an employee immunity in no way affects direct liability based on section GC 815.6. Such liability could only be negativated by a statutory entity [GC 815 (b) we know of none]’.

[Government Code section 821.6. provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."].

The law books and the legal authorities on this issue of the cumulative nature of statute imposing liability are therefore unequivocal, the ‘eventual’ (or very questionable see section B) judicial immunity of defendants in no way affects direct liability based on section GC 815.6. And therefore the court drew an incorrect legal conclusion when it stated that judicial immunity was an ‘incurable defect’ (CT 192, l. 25) and incorrectly dismissed the case.

d) The inapplicable overriding effect of GC 818.8 and GC 822.2 on GC 815.6.

In its opposition to the motion to vacate defendant also argued that ‘GC 818.8’ ‘overrides the public entity liability under GC 815.6’ (CT202), which appellant does not deny - for the cases based solely on misrepresentation and for which GC 818.8 and 822.2 apply, but here first (a) defendant lawyer, Mrs. Shin, forgets that the negligence cause of action is not solely based on defendants’ misrepresentations, but also on violations of various statutes (28 USC 1546, PC 182,) and of MPP articles (MPP art. 22.078.6-61, 62; 22.078.31,) (CT 31 l. 730-738). Moreover, in this case, and unlike in the case used by defendant [Grenell v. City of Hermonsa Beach (1980) 103 Cal. App. 3d. 864], there are allegations of corruption and malice (CT 29 l.656-673), and therefore GC 822.2 does not ‘protect’ (or immunize) the defendants individually (CT 29 l. 661-662), and the misrepresentations or violations of GC 822.2 (enactment) contribute also to establish the negligence under both GC 815.6 and 815.2.

And second (b) as we will see below, and again, the immunity under GC 818.8 does not apply in this case because the misrepresentations took place in the social services area, and because according to the Michael J By v. LOS Angeles County case discussion, GC 818.8 and GC 822,2 do not ‘immunize’ a public entity in the social services area ‘designed to serve the interest of society’ (see explanation on section C ). So defendant remarks concerning the overriding effect of GC 818.8 and GC 822.2 on GC815.6 are not appropriate here.

e) The criminal statutes violations as additional proof of negligence.

The impact of the criminal statutes violations in establishing the

negligence is slightly different (even though for appellant these criminal

statues are also enactments that impose a mandatory duty, and they are designed to protect against the injury appellant suffered, and their violations resulted in appellant injury and damages, and therefore they contribute to make respondent liable under GC 815.6) because even if defendants ‘may’ be immune for not following the MPP regulation, there is no way they could enjoy any immunity for violating criminal statutes like 18 USC 1546, PC 182 etc.; and therefore the vicarious liability imposed by GC 815.2 and the negligence of the DSS employees as defined in CC 1714 (a) that is also established by these criminal statutes violations, would lead to the liability of the DSS and not be subject to immunity.

Defendant argued that the criminal statutes ‘are not only inapplicable, but also do not create private right of action’ (see opp. Motion to vacate, CT 208 l. 18-19). It is wrong to write that they are inapplicable, in fact one of defendant’s cases (CT 207 l. 23-24) explains precisely the opposite [see Hoff 19 Cal 4^th ed page 929, ‘a duty of care, and attendant standard of conduct required of a reasonable person, may be found in a legislative enactment that does not provide for civil liability’, which is also the case here]. Or in the California Tort Liability Practice book page 465 ‘Liability under GC 815.6 does not require ‘that the enactment establishing a mandatory duty itself manifest an intent to create a private right of action” Haggis v. City of La…’. And concerning the private right of action, PC 182 defines the wrongdoings ‘conspiracy’, and there is a private right of civil action for conspiracy (in fact the difference between civil and criminal conspiracy is very thin since the criminal conspiracy focuses on the agreement while the civil conspiracy focuses on the damages), so this statute refers to a wrongdoing for which there is a private right of action.

The criminal statutes mentioned here imposes a mandatory duty on defendants in the sense that defendants are not allowed to violate these criminal statutes while performing their duty; and they are intended to protect against the kind of injury plaintiff suffered, because (a) for example 18 USC 1546 objective is to discourage people from using altered immigration documents (when knowing them to be altered) to protect, among others, the aliens who have valid immigration documents and to protect against people using altered document for fraud purposes, and 18 USC 1512 c) objective is to prevent the corrupt use of altered documents in legal proceeding like in this case (see CT 215); because (b) one of PC 182 objectives is to prevent individuals from conspiring to obstruct justice (CT 218-219) or to falsely maintain legal proceeding like in this case; and finally because (c) 18 USC 1512, 1513 objective is to prevent individuals from retaliating against, tampering with or from harassing a victim during a legal proceeding (see CT 215 bottom page 18 USC 1512 d)), which is the kind of treatment appellant suffered during his various legal proceeding.

The facts of the case also show clearly that the breach of this duty or violations of criminal statutes, even if it was never judged in an criminal court, also resulted in appellant damages and injury since (a) defendants used the altered verification of status to justify their conclusion that plaintiff refuge status had been re-determined (which also created appellant problems even if it was not the only reason for the damages), since (b) the obstruction to justice due to the refusal to follow MPP and CC procedures resulted in the impossibility for the Superior Court to review the LA County critics to judge Tolentino’s decision. And since (c) defendants were retaliating against and harassing appellant for denouncing the unfair behavior of DSS and DPSS employees.

3) The Superior Court grave and prejudicial errors.

The Superior Court ignored appellant arguments on GC 815.6 imposing a liability independently from employees eventual immunity (CT 146-148; CT 169-172) and erred gravely because (a) the MPP is an enactment that imposes a mandatory duty, and the facts of the case prove that the MPP (and CC1094.5) was designed to prevent against the kind of injury plaintiff suffered (loss of RCA resulting in damages,) and that the breach of the mandatory duty resulted in plaintiff injury; because (b) the judicial immunity, if any (as seen below defendant should not be entitled to immunity), does not affect the liability under GC 815.6, and in this particular case the overriding effect of GC 818.8 and GC 822.2 do not apply (GC 822.2 contribute to establish the negligence under GC 815.6 and 815.2); and finally because (c) the violations of criminal statutes simply establish even more clearly the well funded of the negligence cause of action. Defendant DSS is therefore liable for the negligence claim described in the complaint, and the dismissal should be reversed.

B Mendoza, Castello, Campbell do not enjoy the quasi-judicial immunity because their actions were taken outside of all jurisdiction and were ministerial in nature.

1) Legal Standard concerning the ‘character’ of the DSS hearing process and the judicial immunity.

Few cases address the issue of the ‘character’ of the DSS administrative proceeding. For example in People v. Sims (1982) 32 Cal. 3d 468, 186 cal Rptr. 77, 651 P 2a, the court wrote:

‘The fact that state wide and local administrative agencies are prohibited from exercising “judicial power” by the California constitution does not mean that agency proceeding determination may never be judicial in nature, so as to preclude them from having collateral estoppels effect in subsequent proceeding [overruling Empire Star Mines Co. Cal. Emp. Co. (1946) 28 Cal. 2d. 33 (168 P2.2d 686)]’

And in Imen v. Glassford, the Court found that for an administrative proceedings to be judicial in nature certain factors must be present:

‘In determining whether an agency acted in a judicial capacity, the court must consider the presence of factors indicating that administrative proceedings and determination possessed a judicial character [Imen v. Glassford (1988) 201 Cal. App. 3d. 898, 906-907, 247 Cal. Rptr. 514]. The factors include the following :

· Whether the administrative hearing was conducted in a judicial-like adversary proceeding;

· Whether the proceeding required witness to testify under oath;

· Whether the agency determination involved the adjudicatory application of rules to a single set of facts;

· Whether the proceeding were conducted before an impartial hearing officer;

· Whether the parties had the right to subpoena witness and present documentary evidence;

· Whether the administrative agency maintained a verbatim record of the proceeding.’

And few cases address the exception to the judicial immunity of judges. For example in Mireless v. Waco, the court found that this judicial immunity of judges had two exceptions: ‘(1) non judicial actions, and (2) actions that, though judicial in nature, are taken in complete absence of all jurisdiction [Mireless v. Waco (1991) 502 US 9, 11-12, 112 S. Ct. 286, 116 L. Ed. 2d 9]’. Or ‘in New Alaska Development Corp. v. Guetschow, 896 F. 2d 1298 (9 Circ. 1989), the ninth Circuit identified the following factors as relevant in determining whether a particular act is judicial in nature:

‘(1) whether the precise act is a normal judicial function; (2) whether the event occurred in the judge’s chambers; (3) whether the controversy centered around a case pending before the judge; and (4) whether the events at issue arose directly and immediately out of a confrontation with the judge in his official capacity.’

2) How and why the exceptions to the judicial immunity applies in this case.

Although (it appears that) no case really addresses directly this issue of the judicial immunity of DSS administrative law judges (and despite the fact that the California constitution prohibits administrative agencies from exercising judicial power), the above cases and determinations show that during the administrative hearing process, the administrative law judges are performing judicial acts in nature [and therefore that they could be entitled to the quasi judicial immunity]. But here defendants actions were not part of the hearing process since both the hearing and the rehearing had taken place already (CT 43). The letters were written as part of the compliance process, a process for which we do not have the determining factors mentioned above in Imen. Moreover as you will see below defendants took decisions they were not entitled to take.

A The lack of jurisdiction or action taken outside of all jurisdiction.

The Superior Court wrote (CT 192 l. 16-21) that:

‘Where a judge determine a debatable jurisdictional issue, even though erroneously the judge is not liable even though it develops that the issue was incorrectly decided, usually , the court has subject matter jurisdiction and the departure is merely an exercise of that jurisdiction …’.

But, this conclusion is completely inconsistent with defendant own statement on this jurisdiction issue, since Judge Castello himself wrote in his letter (CT 51 bottom of the page):

‘If the parties do not agree with the determination of a judge, the only avenue to challenge the determination is to file a formal appeal to the Department’s legal Division and to the courts. The Law does not provide administrators, or the chief administrative law judge the legal authority (jurisdiction) to change a final decision , even if it is erroneous.’

There were/are therefore no ‘jurisdictional’ doubt (no ‘debatable jurisdictional issue’ as the court wrote it), Judge Catello agreed that he (or administrators) cannot change a decision outside the established formal procedure (rehearing or petition at the superior court), and therefore no doubt that neither he nor the other defendants (Mendoza, Campbell) had authority (or jurisdiction) to change the decision certifying plaintiff refugee status by writing for example that appellant refugee status had been re-determined (CT 8, CT 12, CT 19), and to lower the number of months of RCA benefits (including housing assistance) to be paid by writing for example that the county had ‘substantially complied’ or that ‘credit meant subtract’ instead of add as they did (CT 12, CT 18) during the compliance process (and after the 30 days limit to file a rehearing).

The compliance procedure is not a formal appeal to challenge an administrative law judge decision, and moreover the compliance reports or notices of action (CT 44-46) were not even written within the 30 days period to file this formal appeal (a rehearing request) at the legal division of the DSS, so defendants did not have jurisdiction to address appellant refugee status issue as a rehearing issue, or to reconsider the RCA benefits to be paid, and therefore do not enjoy the quasi-judicial immunity for pretending that appellant was not a refugee (CT 8, 19) to steal him the refugee benefits granted by judge Tolentino or for lowering the number of months of RCA to be paid (CT 12, 18) [there is no debate, this is not a debatable jurisdiction issue, judge Castello statements are uncontroverted facts of the case, and therefore the court legal conclusion is inconsistent with these facts, and it should be overturned].

b) No honest and valid basis to write that the INS had re-determined the refugee status.

Moreover, the only way to terminate a refugee status is by using 8 CFR 207.9; and only the ‘INS’ (USCIS) District Director can do so after following a special procedure, - in this case the INS District Director never terminated the refuge status. Defendants are legal experts and perfectly knew that using an altered verification of status (knowing it to be altered) to support their claim that appellant refugee status had been re-determinated by the INS as they did (see CT 49) was criminal [criminal statutes 18 USC 1546 and 1512 c), prevent the use of altered immigration documents or evidence in legal proceeding]. Defendants had no right to use this altered verification of status especially after Judge Tolentino had certified the refugee status and there were allegations of fraud at the INS [they are not part of the FBI or the US attorney office or the INS (DHS) to say or even to give an opinion that a verification of immigration status was issued by error or for criminal reason, or even judge at the Superior court that can review administrative law judge decision, and Mr. Campbell had already decided on the rehearing (that the decision was conformed to the law including the certification of the refugee status), so he had not this rehearing jurisdiction any more].

Their decision turned out to be wrong, the refugee status was obviously not re-determined [but confirmed with a refugee employment authorization card CT 35, and this makes sense also because Judge Tolentino had the authority to certify the refugee status based on document review according to an INS legal department information note on the SAVE verification status system and because according to the res juridicata principle that applies to DSS administrative law judge decisions (see People V. Sims (1982) 32 cal. 3d. 468), the issue of appellant refugee status that was addressed in Judge Tolentino decision can not be re-argued in a court of law after the DPSS did not appeal properly the decision]. And even if the DPSS had presented a valid document (not an altered verification of status), defendants still should have asked the LA County DPSS to file it with a petition at the Superior Court because CC 1094.5 require them to do so [see Judge Tolentino’s decision (CT p. 37) which stipulate that if the parties have any new document that may affect the decision they must present it through the rehearing process or through a petition at the Superior Court]. It seems to be a normal practice at the DPSS not to ask for rehearing which is an obvious deprivation of civil rights (several DPSS managers confirmed to appellant that they never asked for rehearing). The case People v. Sims also confirms that this appears to be usual practice at other counties too!

c) Defendants’ actions were ministerial in nature and defendants had no discretion.

The letters (and included ‘decisions’) were written as part of the compliance evaluation duty or process of the California DSS and the review of Judge Mendoza’s work on this process, for which we do not have the various factors described above as factors determining the ‘judicial character’ of the action or process:

(a) the so called ‘letters or compliance hearing’ were not conducted in a judicial-like adversary proceeding;

(b) they did not require witness to testify under oath;

(c) defendants’ determination did not involve the adjudicatory application of rules to a single set of facts;

(d) these hearings were not conducted before an impartial hearing officers (Mr. Castello and Campbell are not impartial officers to judge Mr. Mendoza work); and

(e) the parties (plaintiff,) had no right to subpoena witness.

On the contrary, we have all the characteristics of ‘ministerial actions’ and of mandatory duty allowing no discretion. The regulation states ‘upon receipt of the compliance report … the Department (CADSS) shall make a determination regarding the appropriateness of the compliance…. (art. 22-078.6 .61, .62 of the MPP) (CT 222)’, and this action (to issue a notice or notification) imposed by the MPP articles has all the characteristic of a ministerial action: ‘acts done after ascertaining the existence of a specified state of facts in obedience to a legal order (Judge Tolentino’s order) without exercising of personal discretion’.

Mendoza, Castello, Campbell had no discretion to change the order or to deny the benefits granted by judge Tolentino and ‘no discretion’ to evaluate the validity of a new verification of status (certainly not an altered one) during the compliance process [Mr. Campbell would have had jurisdiction (during a rehearing) if the LA County had presented the altered verification of status through a rehearing request, but it did not, it simply presented it as explanation for its compliance report]. They only had to ‘ascertain the existence of a specified state of facts in obedience to a legal order’:

(a) Did the County agree with Judge Tolentino’s order dated February 5 2003? (it obviously did not);

(b) Did it pay the benefits granted by the judge? (it obviously did not);

(c) Did it help plaintiff to find the date his asylum was granted? (it obviously did not);

(d) Was it trying to present a new document that may affect the decision instead of filing it and a petition at the superior court? (it obviously was);

The answers to these questions were obvious, and the solution was to ask the County to file a petition at the Superior court, so they were only performing ministerial actions and the immunity does not apply.

Judges Mendoza and Castello did not even assume this mandatory duty (to write a notice or notification about the compliance) imposed by MPP 22-078.6 .61, .62, since Judge Mendoza wrote that plaintiff should contact the LA County DPSS to resolve the problems (although he knew plaintiff had already contacted them several times) (CT 49); and Judge Castello - who agreed that the LA County DPSS had not fully complied (when he wrote that he thought that the DPSS had ‘substantially complied’), did not ask the DPSS to fully comply as the regulation ask him to, and instead he asked appellant to request a new hearing on a compliance issue (refugee status issue, which is forbidden by art. 22.078.31(CT50-51). This tends to confirm that this work is not part of their normal or usual work as seen below.

d) Defendants actions are not judicial according to the 9 Circ. Court standard either.

It appears also that the compliance work is usually not handled by the LA Presiding Judge, but by Mr. Ceja who is not an administrative law judge, which tends to confirm that this compliance work or action is very much like the work of social workers who have no discretion and perform ministerial act in nature:

[‘Social worker was not exercising discretion so as to be entitled to immunity when applying radically different standards for eligibility for welfare that allowed by statue and regulation. see (Ramos v. Merced County (1971) 4 cal. 3d 685, 692-694, 94 Cal. Rptr. 421, 484 P 2d 93). Or ‘Social worker was not immune from liability under discretionary acts immunity for alleged negligent supervision of foster placement; social worker’s failure to comply with regulations regarding supervision of foster care was ministerial and discretionary because regulation afforded social worker no discretion to visit foster child less frequently than monthly to determine adequacy of placement’. (Scott v. County of Los Angeles (1994) 27 cal. App. 4^th 125, 141 –142, 32 Cal. Rpt. 2d 643)].

We therefore see that we do not find either in this process the factors ‘determining whether a particular act is judicial in nature’ described in New Alaska Development Corp. v. Guetschow, 896 F. 2d 1298 (9 Circ. 1989), [(1) whether the precise act is a normal judicial function; (2) whether the event occurred in the judge’s chambers; (3) whether the controversy centered around a case pending before the judge; and (4) whether the events at issue arose directly and immediately out of a confrontation with the judge in his official capacity.’] because the actions in question were not normal judicial function of defendants (it certainly not the usual work or function of Judge Castello and Mr. Campbell to deal with compliance problems for Los Angeles decision or to review Mendoza’s work on this process. It is not even the usual work of Judge Mendoza since it is Mr. Ceja that usually does this work as seen above); the controversy did not center around a case pending before the judge (the case had been judged by Judge Tolentino, not by the other defendants); and the events at issues did not arose directly and immediately out of a confrontation with the judge in his official capacity (the issue did not arose directly out of a confrontation with Judge Tolentino). This confirms, if need be, that defendants’ actions were not judicial in nature.

e) Other elements justifying the denial of the immunity.

The conclusions (above) were confirmed in some way by the ‘Commission on Judicial Performance’ when it refused to review these judges wrongdoings and said that it did not have jurisdiction, implying that these actions were not ‘judicial’ in nature [they suggested that plaintiff contacts their director, the Governor or a court of justice, CT 28]. And according to the Butz case, the quasi-judicial immunity does not apply to criminal wrongdoings or behavior, or when defendants are guilty of malice to deliberately deprive a victim from his constitutional right like in this case (due process, right to life,):

‘A school board member would lose his immunity from 1983 suit only if ‘he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student” 420 US, at 322. in Butz et al. v. Economou et al. decision.

Defendants are legal experts who knew about the importance of procedures, and about the fact that the DPSS could never have justified the re-determination of the refugee status in front of the Superior court with an altered verification of status (again it is a crime to issue and use an altered immigration document when knowing it to be altered, viol. 18 USC 1546), and therefore that because of the collateral estoppel (principle of res juridicata) associated with administrative decisions, the certification of the initial verification of status by Judge Tolentino simply certified plaintiff refugee status (for good, see People v. Sims referenced above). They also knew that the only way to deprive appellant of his benefits was to deprive him from his right to a due process by forcing him to complain over and over on the same issue (to try to issue a new decision contradicting the first one). They deliberately deprived appellant of his constitutional rights (due process, freedom from discrimination, right to life,) and therefore do not deserve the quasi judicial immunity.

The cases law used by defendants (CT 130-131) do not apply to this case or support appellant point of view as seen above. For example, in Cleavinger, the case refers to:

‘Members of federal prison discipline committee responsible for hearing cases involving inmates charged with rules infractions held entitled to qualified immunity from suits alleging violation of inmates' constitutional rights.’ which is a very different context and again different nature of action; and in Butz, the ‘federal hearing examiners or administrative law judges, agency officials responsible for initiating or continuing a proceeding subject to agency adjudication, and agency attorneys who arranged for the presentation of evidence on the record were absolutely immune from suits’;

Here, defendants did not initiate or continue the proceeding - the administrative proceeding was initiated by appellant and the DSS was just supposed to verify that the benefits had (or not) been given according to the administrative law judge order.

3) The Superior Court grave and prejudicial errors.

The Superior Court erroneously granted this judicial immunity to defendant employees (CT 192 l 24-27). Defendants do not enjoy the quasi-judicial immunity because first they had (and even admitted that they had) no jurisdiction to change the decision outside the formal appeal process (as they did), and second they were not performing judicial action, but ministerial action [‘acts done after ascertaining the existence of a specified state of facts in obedience to a legal order without exercising of personal discretion’] in nature, [see also Judicial officer is not immune from civil action that complains of acts that are properly characterized as ministerial or administrative as opposed to judicial. Shore v. Howard. N. D. Tex. 1976 4414 F. Supp 379]. And of course they should be entitled to no immunity for violating criminal statutes or for deliberately depriving appellant from his constitutional rights like the due process, right to life (the refugee status is a matter of life and death, as well as receiving the basic benefits stolen) and his refugee privileges. This very prejudicial Court conclusion on this issue should also be overturned.

C State of California does not enjoy the immunity for misrepresentation under GC 818.8 because the misrepresentations were made in the context of delivery of social services and involved a risk of physical harm.

The conclusions of the various Courts of Appeal that have addressed the issue of the immunity for misrepresentation of public entity under GC 818.8 are unequivocal. And even though appellant had based his initial complaint almost solely on the conclusions of the Second District Appeal Court decision in the Michael J. By… v. Los Angles County case … (and of the law-books that refers to this case) that fits perfectly the facts of this present case (concerning the loss of social benefits), the Appeal Court will see below that several other cases confirmed these conclusions and the fact that the immunity should not hold here.

1) The conclusions of the 2^nd District Appeal Court in Michael J. By v. Los Angeles County Department of Adoption.

The 2^nd District Appeal Court was clear when it stated for example (a) that the immunity is not ‘absolute’, (b) that a critical issue in determining if the immunity for misrepresentation applies, is the context in which the misrepresentation took place, and not the fact that there were financial loss (in fact a civil lawsuit is always for some kind of financial loss), and finally (c) that the immunity does not apply in the social services area.

a) The immunity is not ‘absolute’, but ‘limited’.

Like the Los Angele County in Michael J. By, defendant lawyer, Shin, argued (CT 131 l. 13, 162 l. 4) that the immunity for misrepresentation was ‘absolute’ (meaning that it had no exception), which is wrong. On the contrary in the Michael J By case, the court found that the immunity was ‘limited’:

‘Contrary to the County's contention that the immunity provided by these sections is "absolute" and covers the misrepresentations and concealment of information alleged by appellants, the scope of the immunity for misrepresentation is limited. As the California Supreme Court stated in Johnson v. State (1968) 69 Cal.2d 782, 800 [73 Cal.Rptr. 240, 447 P.2d 352], the Legislature employed the term "misrepresentation" in a narrow, rather than expansive sense: "'[Misrepresentation],' as a tort distinct from the general milieu of negligent and intentional wrongs, applies to interferences with financial or commercial interest. The Legislature designed section 818.8 to exempt the governmental entity from this type of liability."

b) The financial loss did not result from a commercial transaction with the DSS.

The Superior Court did not address the fact that the misrepresentations took place in the social services area, context in which the immunity does not hold and should not hold because social services are ‘designed to serve the interest of society’, as stated in Michael J. By:

‘(5a) The immunity provided to governmental entities public employees by section 818.8 and 822.2 does not shield the County from liability for misrepresentation and deceit in the social service area, designed to serve the interest of society ...; (5b) Although appellant suffers a financial loss in the sense that they have incurred, and will continue to incur, substantial medical expenses. Their loss did not result from a commercial transaction with the county nor from the county’s interference with a commercial transaction’.

Denying the immunity in the social services area is very understandable and reasonable, it does not make sense to vote laws giving poor people right to basic social benefits while at the same time allowing civil servants to rob these benefits with lies - this is why the 2^nd Appellate Court wrote ‘in the social service area, designed to serve the interest of society’ . Appellant case is very similar to the Michael J. By case in the sense that the RCA benefits are given to refugee to serve the interest of society, to help them to resettle rapidly instead of forcing them to live in the street after being victim of persecutions in their home country. It is not just a humanitarian concern, but also an organizational and financial concern because a lot of money is invested in the asylum process (to decide who should and who should not be entitled to the refugee status). If only very few asylum seekers are granted refugee status, it is not to send them in the street afterward and to hurt them physically as much as possible (by making them sick or worse).

Moreover, like in Michael J. By case, appellant damages and injury did not result from a commercial transaction with the DSS, nor did it result from the DSS’s interference with a commercial transaction. Appellant damages, wages loss, loss of year life expectancy (including future health care cost due to, among other, his cardiovascular problems that will only worsen with time), psychological damages, and appellant injury, his serious health problems, etc., resulted from the misrepresentations of appellant immigration status, of facts and of MPP articles and procedures, and for the refusal to follow the appropriate procedure and regulation to prevent the issuance of social benefits (which is not commercial transaction).

c) United States v. Neustadt (1961) and Connelly v. State of California (1970)

Defendant stated that a loss of social benefit ‘is an interference with a financial interest’ of the poor (CT 203, 207 l. 10-11), to suggest that the immunity should hold. It used the Michael J. By case comments referring to Johnson v. State of California case, but both of these cases simply underlined a previous conclusion of the US Supreme Court in United States v. Neustadt (1961). And in Neustadt, the words ‘financial or commercial interest’ referred to business interest rather than social benefits losses. See comments in Michael J. By case:

‘but "[so] far as misrepresentation has been treated as giving rise in and of itself to a distinct cause of action in tort, it has been identified with the common law action of deceit," and has been confined "very largely to the invasion of interests of a financial or commercial character, in the course of business dealings."' (United States v. Neustadt (1961) 366 U.S. 696, 711, fn. 26.)’

The meaning of the word ‘interference with the financial or commercial interest’ is therefore unequivocal, and it was even defined more precisely in Michael J. By case discussion when it cited the case Connelly v. State of California (1970) 3 Cal.App.3d 744 [84 Cal. Rptr. 257], in which:

‘the court held that the state was not immune from liability for negligently providing the owner of a marina with inaccurate information as to the anticipated rise in the river during a period of heavy rains. After citing the Supreme Court's interpretation of "misrepresentation" in section 818.8 as articulated in Johnson, the court said, "Applying the foregoing criteria to the facts of this case, we find that although appellant suffered a commercial loss in the sense that his business installations were damaged, the loss did not result from a commercial transaction between him and the state, nor from the state's interference with his commercial transactions.’

These 3 cases (Neustadt, Michael J. By, Connelly) are precise, and leave no doubt that in the present case in the social services area the immunity does not hold.

2) Johnson v. State (1968) and Jopson v. Feather River.

The present case is also similar to Johnson [Johnson v. State of California (1968) 69 Cal. 2 d. 782, and Garcia v. Superior court (1990) citing Johnson] in the sense that it involved a risk of physical harm - depriving a refugee from the most basic social benefits necessary to survive is necessarily physically hurting the refugee by putting him under extremely difficult living condition, including the lack of shelter, of place to cook and to store food (and therefore bad diet), and the great risk of getting hurt by ‘3^rd parties’ in the street, etc.. . In fact most misrepresentation cases in the social services area will necessarily lead to some kind of physical harm, and will involve public employees guilty of corruption and malice (such as a conscious effort to vex, annoy and to harm injured party in his business..) because the social benefits given to the poor are usually an absolutely necessary help that would not be given otherwise, and also because one of the definitions of corruption is ‘robbing from the poor the little they have’ (or are entitled to have).

The case Jopson v. Feather River confirmed this point in some way when it clearly classified the ‘social services area’ as type of case of misrepresentation, and even classified Johnson as being one in the social services area in addition to being one involving a risk of physical harm. The Appeal Court in Jopson [Jopson v. Feather River Air Quality Management District (2003) 108 Cal. App. 4^th 492, 502, 133 Cal. Rptr. 2d. , 506-513] differentiated the category ‘in the context of the delivery of social services’ like appellant case from the category of cases having an ‘interference with commercial and financial interest’ and indirectly stated that the immunity did not apply to cases in the social services area, when it stated: ‘in Johnson, the (California) Supreme Court distinguished misrepresentations made in the context of the delivery of social services from the representations that interfere with the financial or commercial interests’.

[Finally, the California law books also make this difference or draw this line. California Forms of pleading and practice vol. 23 on page 269.27 [1] section 269-26- refers to Michael J. By to point this out. And California Government Code 1-939 book also uses the social services area has one of its category of case see page 239 note 6. So there is a wide agreement, and in fact defendant that had started to use the same arguments in the first lawsuit withdrew them after appellant gave his explanation on the Michael J. By case, and started to use the 11^th amendment at the Federal Court. It was therefore not fair at all to start using them again after appellant had to wait almost 2 years because of an error of defendant and of the District Court, especially after it disqualified a judge, and filed 4 demurrers on this same complaint and when it ignored the obvious arguments presented above.]

3) Defendant’s legal authorities.

Defendant used several legal authorities or cases (Masters, Harshbarger, Page, cases also mentioned in the Michael j. By case discussion) that are fundamentally different from this case (CT 131-132, CT 203-206). In Masters for example, the public employee misrepresented the length of time to make a decision on a disability retirement pension, which is very different than misrepresenting a refugee status that is a matter of life and death and misrepresenting facts, laws, and procedures to steal basic social benefits necessary to survive. Moreover, in Masters there was no allegation that the public employees were guilty of corruption and malice, whereas in this present case, there are allegations of corruption and malice (CT 29 l 666-673) [‘such as a conscience to vex, annoy, harm injured a party in his ‘business’ (Shonfeld v. City of Vallejo (1974) 50 cal App. 3d 401, 404 411)’. Defendants knew they would repeatedly send appellant in the street, and create him a great prejudice with lies on his refugee status. Moreover, robbing the poor from the little they have or the little they are entitled to have is even a definition of corruption as seen above].

Then, in Harshbarger v. City of Colton, supra, 197 Cal.App.3d 1335, ‘homeowners who had to reconstruct their home to bring it up to city code standards sued the city alleging city building inspectors, who periodically inspected the residence, intentionally misrepresented and suppressed the fact that the residence did not meet the various standards. The court held that the alleged interference with the Harshbargers' financial interest fell within the immunity provisions of section 818.8’;

Or in Page v. City of Montebello, supra, 112 Cal.App.3d 658, ‘the court held that a count of the complaint of a widow and minor daughter of a narcotics informant seeking death benefits from the city and its police department on the basis of an oral promise allegedly made to the decedent and his spouse by a police officer employed by the city, was in actuality an effort to hold the city responsible for the tort of its employee and that section 818.8 constituted a complete defense’, the contexts are very different form the present case since the misrepresentations did not take place in the social services area, and here it is not just the errors of few employees, but also of the management that appellant contacted (CT 28).

4) The Superior Court grave and prejudicial error.

The Superior Court ignored all the arguments appellant presented on the Michael J. By, Johnson or Jopson cases (CT 148-149 ), and only stated the provision of GC 818.8 and GC 822.2 (CT 194), it therefore made a very grave and prejudicial error because these cases clearly demonstrate that the immunity should not hold in the social services area, when the damages do not result from a commercial transaction with the respondent or from the interference with a commercial transaction, and when the misrepresentations involve a risk of physical harm like in this present case.

This appeal is therefore justified and gives an opportunity to the 2^nd District Appeal court to confirm its earlier conclusions on the immunity for misrepresentation in the social services area that are everyday more and more important because in an information society, it is absolutely critical to encourage civil servants to tell the truth or not to lie in general and more particularly, in the social services area ‘designed to serve the interest of society’.

Conclusion.

In conclusion defendants employees are not entitled to the judicial (or quasi judicial) immunity because their actions were taken outside of all jurisdiction and were not judicial in nature, so respondent, State of California, does not enjoy the judicial immunity either. Moreover, even if the Court of Appeal found that defendants were entitled to the judicial immunity, GC 815.6 imposes a duty independently from any employee judicial immunity, and the immunity for misrepresentation pursuant to GC 818.8 does not apply in the social services area (and in case involving a risk of physical harm), so the State of California is liable for both causes of action and for the wrongdoings described in the complaint.

The Superior Court made 3 grave and very prejudicial errors on these 3 legal issues, maintained appellant in extremely difficult living conditions despite his health problems, and incorrectly dismissed the case. Appellant respectfully asks this Court not only to reverse the decision of dismissal, to vacate the order of dismissal, and to remand the case for further proceeding, but also to confirm the conclusion presented above on these 3 different important issues.

Los Angeles, July 2006

Pierre Genevier

Certificate of compliance pursuant to Fed. R. App. 32 (a) (7) (C), Circuit rule, rule 32-1 and Cal. rule 14 for case no: B 191 039

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 13 points and contains 11 293 words (1156 lines).

Dated July , 2006

By :______________

Pierre Genevier

Comments on legal aid:

On July 11, Public Counsel contacted me and said that the Appeal Court had asked them for their assistance to find ‘volunteer Attorneys for certain in proper cases’. I, of course, accepted to receive legal aid if possible, and send a rough draft of this brief to describe briefly the case. Public Counsel said that it would study the case and contact me again shortly to give me an answer. At this day, Public Counsel did not contact me and did not respond to my email asking for some information about the program and their response time. If Public Counsel eventually finds an attorney willing to help on this case, a supplemental brief may be filed, but I could not wait any longer without any response to my email from the Public Counsel because I must try to file a motion to expedite and a motion for preliminary injunction, and I have also difficulties to make copies of the brief. In this brief, I made every effort to refer to precise legal authorities and to refer to the facts and arguments contained in the Clerk’s transcript.

Pierre Genevier

423 E 7^th street (RM 528)

Los Angeles, CA 90014

Ph.: (213) 622-1508

Emails: p_genevier@yahoo.com, pierre.genevier@laposte.net

Court of Appeal of the State of California

Second Appellate District

Proof of Service

I, the undersigned, certify and declare that, on July 2006, I served a true copy of Appellant’s Opening Brief by hand delivery and by mail to:

Mrs. Jung D. Shin, Deputy Attorney General, attorney for the State of California Department of Social Services (defendant), 300 South Spring, Suite 5212, Los Angeles, CA 90013. (By hand delivery 1 copy).

Judge Morris Jones, Superior Court, 111 N. Hill street, 90012 Los Angeles CA 90014. (By hand delivery 1 copy).

California Supreme Court, 350 McAllister Street, San Francisco, CA 94002. (By mail 4 copies)

I hereby certify under the penalty of perjury that the foregoing is true and correct. I also certify that I don’t know anybody who can do the service for me, and that I do not have any money to pay someone to do the service for me.

Pierre Genevier