No.     05-7408












Los Angeles County, Department of

Public Social Services — RESPONDENT





Reply to Brief in Opposition to Petition for Certiorari








(Your Name)


423 E. 7th Street, RM 528



Los Angeles, CA 90014

(City, State, Zip Code)


213-622 1508

(Phone Number)




           Following respondent’s ‘opposition to petition for certiorari’, petitioner must comment or address briefly the new issues raised by (or in) respondent’s brief and must point out the incorrect statement.  [The Supreme Court has probably already noticed that respondent used an incorrect case number, the Appeal Court case number 04-56244 instead of the Supreme Court case number 05-7408 in its title page].


I Comments on the ‘STATEMENT OF THE CASE’ section.

          1) Respondent mentions that the last two sentences of petitioner’s statement of the case (Finally, in the related case (or ‘re-filed’ complaint against the DHS), the District Court granted the immunity for misrepresentation pursuant to 28 USC 2680 (h), and the Appeal Court dismissed petitioner’s appeal for want of prosecution. A petition to reinstate this last appeal is now under review.’) do not pertain to this action, but this is not true.  After the District Court dismissal of the claim against the USCIS described in the first complaint (DC no: 04-1857, AC no: 04-56244) because of FRCP 8, petitioner re-filed a new complaint containing exactly the same facts (almost word for word, the only differences were the paragraph numbers that were added and few other ‘form’ requirements).  This new complaint (DC no: 04-7787, AC no: 05-55231) - dismissed because of the immunity for misrepresentation [under 28 USC 2680 (h)] - describes misrepresentations made in the same ‘context’ as the misrepresentations described in the action against the LA County DPSS studied in this petition, so an analysis of the case by Supreme Court would affect the related case.


          2) The 9 Circ. Court ‘ruled’ on this new appeal (05-55231) and the appeal against the LA County DPSS and the State of California (04-56244) at the same time (May 17 2005, May 16 2005).  In the new appeal, it pretended that since petitioner had not filed a motion to proceed in forma pauperis and the District Court had stated that the appeal was not taken in good faith, the in forma pauperis status had been revoked.  It ordered petitioner to pay the fee or otherwise his appeal would be dismissed for want of prosecution.  This was very unfair because petitioner had not been informed by the appeal court that he had to file a new motion to proceed in forma pauperis like the appeal court had done in the initial case; but it was consistent with the related case decision because since the two cases (04-56244, 05-55231) took place in the same context, if the Appeal Court grants the immunity for one, it indirectly grants it for the other.  


          3) When respondent writes that ‘it presumes that the re-filed complaint refers to the DHS’ (see page 1), it is of bad faith because the petition for rehearing en banc filed at the appeal court addressed the two cases at the same time, and explained why reviewing one case (on this issue of the immunity for misrepresentation) leads to reviewing the other case whose facts arose in the same context.  The Supreme Court surely understand that the ‘general’ question addressed in this petition is: Whether Public Agencies (Federal, State, or local) should be immune for their employees’ misrepresentations when the misrepresentations are made in the context of delivery of social services, involves a risk of physical harm, or are made by civil servants guilty of corruption and malice? [Question that is related to state and federal statutes GC 818.8,, and 28 USC 2680 (h)].


4) If the Supreme Court addresses the issue of the immunity for misrepresentation pursuant to GC818.8, it indirectly addresses the immunity pursuant 28 USC 2680 (h) [similarly the standards established in relation to this Federal statute are used by State Court to rule on the immunity under GC 818.8, (see ‘Michael J. by Through Tout v. LA County Dept. of Adoption’ case discussion in Cal App. Rp. 3d series 201, page 869 reference to US v. Neustadt –1961-)].  It makes sense that in the US, the same wrongdoings made in the same context lead to the same legal consequences for different administrations.  Petitioner had therefore to mention the motion to reinstate in his petition and to inform the Supreme Court that there is a related case still pending and addressing the same issue. [The fact that the 9 Circ. Appeal court did not rule yet on this motion to reinstate (after 5 months) shows that it thinks that the 2 cases are related and therefore that the Supreme Court ruling may affect the outcome of the related case].         


          5) Respondent mentions in page 2 that a new case was filed in the District Court, this new case (against, among others, the LA County) refers mostly to new facts that took place after plaintiff filed his complaint in February 2004  (and addresses different questions of law).  It was filed because defendant Los Angeles County (and other defendants) continued to harass plaintiff, and to lie and to cheat to rob petitioner of his benefits and to hurt him after the initial action was filed.  Respondent also mentioned that it was not served with the motion to reinstate the appeal, this is true.  It is obvious that petitioner has very little resources, so he can only serves the parties that are directly concerned by the pleadings he files. 


II Comments on the ‘There is no Federal Question Presented section.

          6) Yes, Petitioner has filed his petition only against the Los Angeles County, but again since the misrepresentations made by the LA County and the DHS employees were made in the same context (and it appears that the 9 Circ. Appeal Court is waiting for the Supreme Court decision to rule on the motion to reinstate), the petition indirectly concerns the Federal defendant in the related case [it appears also that the Supreme Court Case analyst and Clerk office understood it this way since he asked petitioner to serve the Solicitor General. At this day, 12/08/05, the Solicitor General did not comment or oppose the petition, so apparently respondent point of view on the questions presented are not shared by the USDOJ, it was not shared by the California DOJ already ]. 


7) Respondent is also wrong when it states that ‘Petitioner arguments concerning the provisions of this statues do not apply to this respondent’ or that ‘petitioner reliance upon Jimenez-Nieves v. US (1982) 862 F2d. 1 is accordingly misplaced’ because, first, as mentioned above if one Appeal Court denies the immunity to the Federal Government for the same type of wrongdoings (or same wrongdoing made in the same context), it is relevant to the case (see Michael J. case discussion); and, second, because petitioner had used this case (Jimenez-Nieves v. US) in front of the lower courts (even if they did not address the issue this case dealt with), and therefore the Supreme Court can review the question and the specificity presented by this case [see New York excel. Bryant v. Zimmerman, 278 US 63,67 (1928), and Campbell v. Louisiana, 323 US 392, 403 (1998)].            


8) Respondent wrote also on page 3 ‘As was proper below, the District Court and Appeals Courts based their decisions as to …, specifically interpreting the application…’, this is not true.  The Courts did not comment any of the cases law presented by petitioner (Michael  J. By.., Jimenez-Nieves…, ) and did not interpret the word misrepresentation with respect to the specificity of this case [In fact, respondent so openly ignored petitioner arguments and the cases law he presented (particularly Michael J. By..) that it probably would have made very little difference if the Courts had interpreted the word misrepresentation (obviously the Los Angeles County does not trust appeal courts point view and does not respect their authority!].            

III Comments on the ‘Ninth Circuit ruling is in Concertsection.

9) In this last section, respondent mentions that the ‘…intentional misrepresentations were made by Respondent’s employees which caused the petitioner to lose welfare benefits to which he claims entitlement. His claim is for financial loss.  This remark is very dishonest because the DPSS cannot ignore the remarks made in the Michael J. By through Tout v. LA County D.A. case discussion pointing out the difference between ‘financial loss in the course of business dealing (described in US v. Neustadt..., see Cal App 3d series, 201, page 872) and financial loss that ‘do not result from a commercial transaction’ like the one in an adoption process or the payment of refugee benefits in this case (with its grave consequences).  [Respondent cannot ignore the nature of the benefits it gives to the poor - the RCA, GR, food stamps, housing assistance benefits are the most basic benefits that are absolutely necessary to survive.  Respondent cannot ignore also that a $380 000 damages is asked for the loss of years of life expectancy].


10) Yes, ‘petitioner argues Johnson v. State of California mandates this court (Supreme Court) to overturn the Court Appeal’s ruling’ because like in Johnson petitioner (plaintiff) was put at great risk to be physically hurt (harmed), and was even physically hurt since he became sick constantly and recently suffered cardiovascular problems (chest pains, high cholesterol level,).  And when respondent writes ‘Petitioner here styled his allegations … leading to his loss of benefits’, this is incorrect because petitioner has repeatedly mentioned that he was put at great risk of physical harm and that he was even physically hurt (again he even asked a special damage for the loss of years of life expectancy,). 

11) In page 5, respondent refers to Garcia v. Superior Court, and points out that the present case is different because ‘in Garcia, as in Johnson, the defendant had advanced knowledge of a risk of physical harm’, but again this is wrong and even completely absurd because here also the defendant had advanced knowledge that it would put petitioner at risk to be physically harmed [the DPSS perfectly knows what is going on in homeless shelters, or in the streets for those who live there; the minimum benefits (GR, food stamps,) were created to try to prevent the poor from living in the street without money to buy food…]  So, the Johnson and Garcia cases are not factually distinguishable from petitioner cases as respondent writes it, there are similar in the sense that ‘they involved a risk of physical harm’.


12) Then in page 4 and 5, respondent writes that petitioner seeks to characterize Johnson as one concerning misrepresentation made in the context of the delivery of social services’, or ‘attempt to create a new category from Jopson court’s description misstates the distinction being drawn by the later court…’, or finally that ‘in Michael J. by through Tout v. Los Angeles County Depart of Adoption…, the court held that… misrepresentation … is actionable, but did not as petitioner argues, broadly find that California GC 818.8 immunity should not hold in the social services area.      

Petitioner did not create this category or characterize Johnson as one in the context of the delivery of social services, it is the California law books [West Annotated California Code, Government 1-939 book (page 239, note 6), California Form of Pleading and Practice (Vo. 23, Ch. 269, page 269.27.1, line 18)], and Appeal Court judges [see (1) Michael J. By discussion] that made this category (2), and the Appeal court in Jopson that characterized Johnson as one case in the social service area. 

(1) Cal App Rp. 3d series 201page 872: ‘(5a) The immunity provided to governmental entities and 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... (5 b) 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’.


(2) The objective is understandable and makes sense, judges tries to simplify the law by grouping different cases that have the same main characteristics and have lead to a denial of immunity for misrepresentation by the various appeal courts.  In his petition (page 15 line 8-11), petitioner explained that there is no contradiction in their ‘category’ choice because for example misrepresentation in the social services area most often involves a risk of physical harm… Petitioner had mentioned these different law books in his pleadings in the lower court of course, but defendant ignored all the arguments presented. The 9 Circ. Court may have used the Jopson case law to stress that this category  (‘in the context of delivery of social services’) is a broad, significant and meaningful enough category (consistent with the various existing cases) that would simplify the law greatly (and the work of judges).


13) Respondent also mentions on page 5 that in ‘ Shonfeld v. City of Vallejo’ case, the appeal Court granted the immunity, which is true; but it granted the immunity because the employees were neither guilty of corruption nor guilty of malice, which means that if they had been guilty of corruption and malice, the court would have denied the immunity, so the case applies to petitioner case also because as explained, the DPSS employees were guilty of corruption and malice.                      


14) In the last paragraph, respondent again argues that there is no statute that makes the LA County liable for misrepresentation [and that petitioner has apparently abandoned his reliance upon GC 1709 and 1710, which is not what was written, petitioner simply wrote that he had not only referred to 1709 and 1710, but also to 815.2 and 822.2].  Since the goal of a reply is not to reargue a case, petitioner just want to say that if there is no statute that makes the LA County liable for misrepresentation, how in the world is it possible that it was found liable in the Michael J. by Though Tout case by an appeal court (especially with such exceptional lawyers)!  [Since the Supreme court cannot directly ask the LA County to explain by what ‘miracle’ they were found liable in this misrepresentation case, petitioner respectfully asked the Supreme Court to read carefully the Michael J by Through Tout v. LA County case discussion (particularly the conclusion) and see for itself if there are some statutes that make the LA County liable for misrepresentation or which statutes this appeal court used to determine the liability!]           


            Respondent, LA County, pays (at great expense for the public, tax payers) a law firm (and a firm to handle the claim and advise in the litigation) to (imprecisely) re-argue a case that was judged in 1988 already and to contradict conclusions that were supported by several Appeal Courts and law books.  It does so without the support of the California DOJ, and without the USDOJ (Solicitor General), it appears at this day, (even if a LA US Attorney also asked for the immunity in a very questionable manner).  And it does so to hurt a victim who has lived in very difficult condition for years and although the damage is increasing significantly every month.   Its behavior is despicable (and you may think even an insult to the integrity of the justice system and to the integrity of the Supreme Court).



Petitioner therefore renews his conclusion. The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: December     ,  2005

                                                                    Pierre Genevier
No.    05-7408




Pierre Genevier                          PETITIONER


Los Angeles County

Department of Public Social Services — RESPONDENT(S)



I, Pierre Genevier, do swear or declare that on this date, December      , 2005, as required by Supreme Court Rule 29, I have served the enclosed

Reply to Brief in Opposition to petition for Certiorari on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows:

1) Mrs. Patricia Ellyatt, Attorney for the Los Angeles County, DPSS (defendant), at 5850 Canoga Avenue, suite 600, Woodland Hills, CA 91367, Fax : (818) 380 0028. (by fax). 2) Los Angeles County Board of Supervisors, 500 West Temple Street, Los Angeles CA90012. (by  personal delivery). 3) The Solicitor General, United States Department of Justice, 950 Pennsylvania Avenue, N.W., Room 5614, Washington, DC  20530-0001. (by mail).

I declare under penalty of perjury that the foregoing is true and correct. Executed on December       , 2005