No.
IN THE
SUPREME COURT OF THE UNITED
STATES
_____________________________________________________________
Pierre GENEVIER (Pro se) —
PETITIONER
vs.
Los Angeles County,
Department of
Public Social Services —
RESPONDENT
ON PETITION FOR A WRIT OF
CERTIORARI TO
Court of Appeal For the
Ninth Circuit
(NAME OF COURT
THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF
CERTIORARI
Pierre GENEVIER
(Your Name)
423 E. 7th
Street, RM 528
(Address)
Los Angeles, CA 90014
(City, State, Zip Code)
213-622 1508
(Phone Number)
1_ Whether the Los Angeles County, Department of Public Social Services (and indirectly other Public Agencies) should be immune for its (their) employees’ misrepresentations pursuant to GC 818.8 [and 28 USC 2680 (h)] 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?
2_ Whether the Los Angeles County Department of
Public Social Services owe a duty pursuant to statute to plaintiff (and
indirectly to the poor or indigent population it is supposed to help) when its
employees misrepresent facts, regulation articles and procedures to send him in
the street and to hurt him, and whether plaintiff had established this duty in
his pleadings?
LIST OF PARTIES
[]All
parties appear in the caption of the case on the cover page.
[X]
All parties do not appear in the caption of the case on the cover page. A list
of all parties to the proceeding in the court whose judgment is the subject of
this petition is as follows:
Los
Angeles County, Department of Public Social Services (LACDPSS)
The
State of California, Department of Social Services (CA DSS)
The
United States Citizenship and Immigration Services (USCIS, formerly INS)
renamed Department of Homeland Security in the related case.
TABLE OF CONTENTS
OPINIONS
BELOW
JURISDICTION
CONSTITUTIONAL
AND STATUTORY PROVISIONS INVOLVED.
STATEMENT
OF THE CASE
REASONS
FOR GRANTING THE WRIT
A The Appeal Court’s decision
conflicts with several existing decisions that warrant review by the Supreme
Court.
1_ Conflict between Decisions of a Court of Appeal and of the
California Supreme Court (and State appeal Courts) as General, non Federal
Matter and Federal Matter.
2_ Conflict between
Decisions of Courts of Appeal.
B The issue presented is of
exceptional importance for the community or public.
1_ The immunity for
misrepresentation in the ‘social services area’.
2_ Misrepresentation in general in our information
society.
3_ The particular behavior of defendant, Los Angeles
County, that was already found liable for misrepresentation in the social
services area.
C The error of the 9th Circ. Appeal
Court.
D The Los Angeles County Department of Public Social Services’ Duty.
CONCLUSION
INDEX
TO APPENDICES
APPENDIX
A:
Order of the 9th Circ. Appeal Court dated
May 16 2005 affirming the District Court order dated May 16 2004.
APPENDIX
B:
Order of the 9th Circ. Appeal Court dated
August 16 2005 denying the rehearing and rehearing en banc.
APPENDIX
C:
Order of the District Court (Central District of
California Western division) dated May 18 2004 dismissing the complaint.
CASES
PAGE
NUMBER
Jimenez- Nieves V. US, CA 1 (Puerto Rico) 1982, 682 F. 2d1,
remand 618 F. supp. 66. P. 14
Weisgram v. Marly Co. 528
US 440, 446 (2000) P.
14
Garcia v. Superior Court (1990) 50 cal. 3d 728,738 n.8, 268 Cal.
Rptr.
779, 789 D. 2d 960 P. 11
Michael J. By and Through Trout V. Los Angeles County, Dept. of
Adoption (app. 2 Dist 1988) 247 Cal. Rptr. P. 13
Johnson v. State of California (1968) 69 cal. 2d 782.., P. 11, 12
Jopson v. Feather River Quality Mgmt. Dist., 133 Cal. Rptr. 2d 506 , 507
(Cal. Ct. App. 2003). P. 11, 12, 15, 20
Page v. City of Montebello, 112 Cal. App. 3 d 658, 670 (1980) P. 12
Schonfeld v. City of Vallejo (1974) 50 cal App. 3d 401, 404 411, P. 11, 12, 21
123 Cal. Rptr. 669.
28 USC 2680 (h) P. 8, 14, 20
Government code 815 P. 8, 21
GC 815.2 P. 8, 20, 21
GC 818.8 P. 8, 9, 20, 21
GC 822.2 P. 9, 12, 21
11th Amendment P. 9
Federal Rule of Civil Procedure 8 P. 8
The California Form of Pleading and Practice volume 40 P. 11, 12
SUPREME COURT OF THE UNITED
STATES
PETITION FOR WRIT OF
CERTIORARI
Petitioner
respectfully prays that a writ of certiorari issue to review the judgment
below.
[x]
For cases from federal courts:
The
opinion of the United States court of appeals appears at Appendix A to
the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[X] is unpublished.
The
opinion of the United States district court appears at Appendix C to the
petition and is
[ ]
reported at ; or,
[ ]
has been designated for publication but is not yet reported; or,
[X]
is unpublished.
[ ]
For cases from state courts:
The
opinion of the highest state court to review the merits appears at Appendix to
the petition and is
[ ]
reported at ; or,
[ ]
has been designated for publication but is not yet reported; or,
[ ]
is unpublished.
The
opinion of the court appears at Appendix to the petition and is
[ ]
reported at ; or,
[ ]
has been designated for publication but is not yet reported; or,
[ ]
is unpublished.
[X]
For cases from federal courts:
The
date on which the United States Court of Appeals decided my case was May 16
2005.
[ ]
No petition for rehearing was timely filed in my case.
[X]
A timely petition for rehearing was denied by the United States Court of
Appeals
on the following date: 16 August 2005, and a copy of the order denying
rehearing appears at Appendix B.
[ ]
An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on (date) in Application No. A .
The
jurisdiction of this Court is invoked under 28 U.S.C.§1254(1).
[ ]
For cases from state courts:
The
date on which the highest state court decided my case was . A copy of that
decision appears at Appendix .
[ ]
A timely petition for rehearing was thereafter denied on the following date: ,
and a copy of the order denying rehearing appears at Appendix .
[ ]
An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on (date)in Application No. A .
The
jurisdiction of this Court is invoked under 28 U.S.C.§1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
California Government Code:
818.8. A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.
822.2. A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.
815.2. (a) A public entity 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 a cause of action against that employee or his personal representative.
(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. 815. Except as otherwise provided by statute:
(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.
STATEMENT OF THE CASE
This case is a complaint for
money damages against 3 public entities, the US Citizenship and Immigration
Services (USCIS, or DHS in the related case), the Los Angeles County DPSS, and
the California Department of Social Services.
It describes intentional misrepresentations (involving risk of physical
harm and made by public employees guilty of corruption and actual malice) that
resulted in the loss of the most basic social benefits necessary to survive
(and in other graves consequences). The
complaint was first presented at the State Court, and removed by the federal
defendant to the Federal Court that dismissed the 3 claims:
(a) The claim against the LA
County DPSS with prejudice because of the immunity for misrepresentation under
Gov code 818.8, and because (it thought that) the appellant had not shown that
the DPSS owed him a duty pursuant to statute; (b) the claim against the
State of California with prejudice because of the 11th Amendment;
and (c) the claim against the USCIS without prejudice because the
complaint did not follow the rule 8 of federal procedure (giving the
possibility to plainitff to re-file his complaint). [see Appendix C].
The 9th Circ.
Appeal Court affirmed the decision concerning the State of California, but also
asked the District Court to give petitioner a possibility to re-file his
complaint at the State Court. It
affirmed the decision granting the immunity for misrepresentation to LACDPSS
[regardless of the fact that the misrepresentations were made in the context of
the delivery of social services, involved a risk of physical harm, and were
made by employees guilty of corruption and malice], and the DC opinion that
plaintiff did not established that LACDPSS owed him a duty pursuant to
statute. 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.
The petition for Writ of
Certiorari should be granted for 4 reasons: First, the Appeal Court’s
opinion conflicts with several existing decisions including a California
Supreme Court’s decision; second the question addressed is of
exceptional importance for the community or public, and although there are
several legal authorities on the matter as the court will note below, a new
‘clarification’ seems to be necessary, particularly in the context of our
information society; thirdly, the Appeal Court made an error that is
obvious enough to be mentioned [it used - to justify its opinion- a decision
whose discussion supports exactly plaintiff point of view on this particular
matter of immunity for misrepresentation in the context of the delivery of
social services]. Finally, the 2nd
question, which appears to rise out of the Appeal Court’s position on the first
issue, gives a chance to remind social services of their responsibility or
simply to ‘define’ social services responsibility toward the poor they are
supposed to help.
A
The Appeal Court’s decision conflicts with several existing decisions that
warrant review by the Supreme Court.
1_ Conflict between Decisions
of a Court of Appeal and the California Supreme Court (and State appeal Courts)
as General, non Federal and Federal Matter.
A conflict between decisions of an
Appeal Court and a State highest Court (or even intermediate appeal courts) warrants
review of an opinion whether it is on a federal matter [Florida v.
White, 562 US 559, 563 (1999); United States v. Estate of Romani, 118 S. Ct.
1748, 1482 (1998),…] or on a general and non-federal matter [Six
Companies v. Highway District, 311 US 180 (1940); West v. American T and T Co
311 US 223 (1940);Exxon Co., USA v. Banque de Paris et des Pays Bas, 448 US 920
(1988)]. The question addressed in
this petition, the immunity of public agencies for their civil servants’
misrepresentations (when the misrepresentations are made in the context of the
delivery of social services, involved a risk of physical harm, or were made by
employees guilty of corruption and malice) is both a federal and a non-federal
matter since it is addressed by a state statute California GC 818.8 and a
federal statute 28 USC 2680 (h), and the legal authorities on this matter often
refer to both Federal and State ‘theories’ or cases. In this particular case, the immunity for misrepresentation was
granted to 2 defendants under GC 818.8 and 28 USC 2680 (h), even if this
petition only refers to only one of the defendants, LACDPSS.
a) The Johnson v. State of California (1968),
Garcia v. Superior Court (1990), Schonfeld v. City of Vallejo (1974), and
Jopson v. Feather Quality River Mgmt (2003) cases.
The California Form of Pleading and Practice volume
40 on page 118.7 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)].’
It also gives on page 118.7
the general interpretation of the word ‘misrepresentation’ in
the context of GC 818.8 given by the California Supreme Court: ‘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 ...].’.
Finally, on page 128, it
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]’. There are therefore several cases underlying
that this immunity is not absolute, unlike it is stated in Page v.
City of Montebello 112 Cal. App. 3 d 658, 670 (1980), (see District Court
order Appendix C), and establishing guidelines for which the immunity under GC
818.8 should not hold [in cases involving a risk of physical harm for
example or when the employees are guilty of corruption and malice, which
results also in an effort to physically hurt the victim in most cases].
More recently, a state
Appeal Court also ‘interpreted’ the Johnson Supreme Court opinion in ‘Jopson
v. Feather River Air Quality Mgmt. Dist. (2003)’ case, and 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’,
which means that this Appeal Court agrees that, in the context of the
delivery of social services, the immunity for misrepresentation under GC
818.8 [and even indirectly under 28 USC 2680 (h)] does not (or should not)
hold. And this point of view is
supported by 2 other cases or appeal courts’ opinions as you will note below.
b)
Michael J. By and Through Trout V. Los Angeles County, Dept. of
Adoption case.
In Michael j. By and
Through Trout v. Los Angeles County, Dept. of Adoption (app. 2 Dist 1988) 247
Cal rptr., another case involving our respondent, the Los Angeles County,
and referring to misrepresentations made during an adoption process - which has
serious similitude with the resettlement of a refugee, or the assistance to a
homeless-, the California Appeal Court for the 2nd District recognized that the immunity for
misrepresentation under GC 818.8 should not hold in the social
services area. This confirms, of
course, the ‘Jopson’s opinion’, and the
federal case mentioned in the next section.
The Supreme Court will note
that -although it did not address this particularity of petitioner’s case in
its decision-, the 9th Circ. Appeal Court did not contest the fact
that the misrepresentations were made in the context of the delivery of social
services, since it stated in its memorandum (see Appendix A):
‘Pierre Genevier appeals
pro se the district Court’s judgment, dismissing his action alleging that the
Los Angeles County Department of Social Services (LADPSS), the California
Department of Social Services (CDSS), and various individuals, intentionally
misrepresented and suppressed facts causing him to lose welfare benefits’.
And neither did the
defendants, the LAC DPSS, for example, wrote in
its Appellee’s brief: ‘Appellant applied for
refugee Cash Assistance benefits. Appellant Genevier’s application was
approved…However, the benefits were terminated…’. And the DHS wrote in its motion for summary affirmance: ‘Plaintiff
alleged that, as a result of the fraudulent misrepresentation his public assistance
benefits were discontinued, he was forced to sleep in the street…’. So there is absolutely no doubt for
everyone that the misrepresentations were made in the context of the delivery
of social services (1).
(1) In fact even the initial
verification of status listing petitioner as a refugee was established in the
context of the delivery of social services since it is the DPSS that sent
petitioner to the INS status verifier office with its GR verification of status
form to fill out; some of the complaint misrepresentations refers to plaintiff
refugee status despite a confirmation or ‘certification’ of this initial
verification of status by an administrative law judge and the DHS Nebraska
refugee center.
2_ Conflict between Decisions of Courts of Appeal, the Jimenez- Nieves V. US case.
A conflict between decisions
of (federal) Appeal Courts also warrants review of an opinion when the
underlying question has a substantial practical importance for the community [Weisgram
v. Marly Co. 528 US 440, 446 (2000)].
Here the 9th Circ Appeal Court opinion is also in conflict
with a Federal Appeal Court’s decision referring to a case in the social
service area [Jimenez- Nieves V. US, [CA 1 (Puerto Rico) 1982, 682 F. 2d1,
remand 618 F. supp. 66.], a case about a misrepresentation made by the
Social Security Administration that lead to the loss of social benefits, and a
case for which the Appeal court denied the immunity for misrepresentation under
28 USC 2680 (h). It is also obvious that in our information society’s context
and the various scandals linked to misrepresentations (CIA misrepresentations
of Iraq weapons of mass destruction, WorldCom misrepresentation of its
financial situation….) and given the numerous legal cases addressing this
issue, the issue is of substantial practical importance for the community.
To
conclude this part A, the Supreme Court will surely see the ‘pattern’ of
exceptions, or the types of cases for which the lower courts did not
‘grant’ the immunity for misrepresentation to public entities: when the misrepresentations are made in
the context of the delivery of social services, or when they involves a
risk of physical harm (which is an obvious direct consequence for most case
in the social services area), or finally when the civil servants are guilty
of corruption and malice [which is a direct consequences for cases in the
social services area since corruption is also defined as ‘robbing from the
poor the little they have’ (statement by James D. Wolfensohn, former
President of the World Bank)].
It
may agree with the Appeal Court in Jopson when it stated: ‘We, however, do not see a significant
chasm between the States and Federal Cases,’ and ‘ the facts of the state and
Federal immunity cases provide clear guidance. Indeed, the facts of the
relevant cases, not the jurisdiction in which they were decided, offer
the needed template for deciding the case now before us.’; and concludes that given the facts
describing misrepresentations made in the context of delivery of social
benefits, involving a risk of physical harm, and made by employee guilty of
corruption and malice, the Appeal Court’s opinion conflicts with existing
decisions. It may also find that given
the various ‘interpretations of interpretations’ on the matter, there is
a need to address this issue and to give clear guidelines.
B The issue
presented is of exceptional importance for the community or public.
1_ The immunity for misrepresentation in the ‘social services area’.
This particular question of
the immunity for misrepresentation in the
social services area is an issue of exceptional
importance for the public for several reasons. There are about 3 billions
people around the world living with less than 2 dollars a day, and defeating
poverty is the greatest challenge of our time.
In the US - although we are in the richest country in the world-, more
than 35 millions people live under the poverty level, and this number has been
significantly increasing during the past 4 years. About 45 millions people have
no health care coverage, about 2 millions people become homeless every year,
and of course, it is almost impossible for the poor to receive an appropriate
legal aid or to have an effective access to justice when they are constantly
sent in the street.
All this although, at the
same time, the community invests quite a lot of money in social programs to try
to reverse this tendency and to try to improve the life of the very poor. If the community makes serious effort and
invest money to help the poor, it is not wise to let the social workers and
other civil servants lie to rob the poor of their social benefits, especially
when one knows that these benefits are most of the time absolutely necessary to
survive. It is critical to discourage the social services (and other public
agencies) from lying or misrepresenting the facts to rob the poor of the little
social benefits they are entitled to have, and denying the immunity to public
agencies when the misrepresentations are made in the context of the delivery of
social services is a good starting point to reach this objective.
An ‘Open Door to slavery’ again,
and not an honest way to limit liability exposure for public entities.
As a
parenthesis the petitioner would like also to mention that giving the immunity
for misrepresentation in the context of the delivery of social services is an ‘open
door to slavery’. The poor who
receive social benefits are so vulnerable that if you allow social workers to
lie to rob them the little benefits they are entitled to receive (or simply
raise a doubt about this possibility by ignoring the issue like the lower
courts did), you will make it even easier for some people to enslave the poor,
to force them to accept any condition of life or work to simply survive!
The
District Court referred to GC 815 to remind us of the effort to limit liability
exposure for public entities, but granting the immunity to public entities is
not the appropriate or honest solution to limit their liability in the social
service area. Designing policies and
programs that do not put such unfair burden or degrading obligations on the
poor receiving the minimum revenue necessary to survive, and that do not give
social workers the possibility to hurt the poor so easily, is a more honest and
human solution to limit liability exposure for social services
administrations. A effort to cooperate
with other agencies to avoid redundant work (in this case the Work Sources
under the guidance of the EDD service to avoid job search redundant activities)
is also a more suitable solution to limit administrative costs than spending
money in lawyers to avoid addressing a case’s issues.
2_ Misrepresentation in general in our information society and knowledge
based economy.
From a more general point of
view, the Court will note that in our
information society and knowledge based economy,
information has become
an essential ‘commodity’, so it is absolutely
critical to discourage civil servants to lie in general (or even to discourage
anybody to lie in a professional context).
The recent War in Iraq that was motivated by the CIA lies on the
existence of weapons of mass destruction in Iraq (or the recent World Com
scandal, which was the result of gross misrepresentation of the company
financial situation) is good example of this point [one can even wonder if it
is fair to grant the immunity for misrepresentations interfering with financial
or commercial interest of victims when companies executives can be sent to jail
for doing just this? (!)] In the information society,
lying to someone in a professional context is like poisoning him, and it should
simply be unacceptable.
3_ The particular behavior of defendant, Los Angeles County, that was
already found liable for misrepresentation in the social services area.
In the light of the
arguments presented above, you may find that the behavior of the Los Angeles
County –that has already been found liable for misrepresentation in the social
services area- is very questionable, especially when you know that the State of
California, another defendant in this case, had -at first- used exactly the
same arguments as the LA County concerning the immunity for misrepresentation
under GC 818.8 and the necessity to have a duty pursuant to statute according
to GC 815, and that it immediately changed its position after petitioner filed
his opposition to the LA County motion to dismiss and after the removal of the
case to the Federal Court.
If the State of California
had found that its arguments were still pertinent after petitioner mentioned GC
815.2 that makes public entities liable for the wrongdoings of its employees,
GC 822.2 that makes public employees liable for misrepresentation when they are
guilty of corruption and malice, and, of course, the exception to the 818.8 immunity
governed by the Michael J by v. Los Angles County and Johnson’s cases, it would
have hold on to its arguments to avoid facing a new similar lawsuit at the
State Court as it is the case today [the complaint was re-filed on 9/30/05]! It did not because it rightly agreed that
the immunity should not hold, and if you chose to grant this review, you will
see that the LA County simply ignored most of petitioner’s arguments,
particularly the ones related to the cases in the social services area, and the
ones related to LA County’s duty pursuant to statute.
In Appeal it hide behind the
District Court decision that mentioned that plaintiff had only referred to Civ.
Code 1709, 1710 in his pleading and that these statues did not impose a duty on
public entities, which is not true, of course, since plaintiff had mentioned GC
815.2 and GC 822.2 in his opposition to the motion to dismiss, and the fact
that the defendants were guilty of corruption and malice in his complaint and
opposition (even asked for punitive damage on this ground). Knowing that the LA County pays an outside
lawyer perhaps $200 to $500 an hour to defend this position against a plaintiff
pro se, that the California DOJ does not support their position obviously, and
that the LA County made/make no effort to discuss the issues of the case
through an ADR procedure although they perfectly knew/know that petitioner
lived/lives in extremely difficult condition [he was almost sent in the street
several times, was ran into by a car, and became very sick regularly since the
beginning of the case], and that the damage increases rapidly for the
community, makes their behavior even more inappropriate and condonable.
C The error of the 9th Circ. Appeal
Court.
The 9th Circ.
Appeal Court used the Jopson’s case to support its
decision (appendix A) to affirm the District court’s
opinion (appendix C) when it is obvious that this case’s discussion supports
plaintiff opinion on the immunity for misrepresentation. The case discussion in ‘Jopson v. Feather
River Air Quality Mgmt. Dist. (2003), - case of a ranch that sued the Air
Quality Management District for misrepresenting its allocation of air pollution
credit and for the resulting commercial loss- states that - in the context of
Jopson- ‘the social services case is
utterly inapposite’, which is true of course. But the Supreme Court may agree that it is ‘utterly
apposite’ to refer to the social services case in Pierre Genevier’s
case where the defendants are the LA County DP Social Services, the
California Department of Social Services, and federal employees whose
misrepresentations lead to the unfair termination of social benefits!
The Appeal Court’s choice
certainly encourages petitioner to present you this petition, and of course to
ask you not only to reverse and remand the Appeal Court’s decision, but also to
give precise guidelines to public agencies and to courts of justice (on this
immunity matter) that (a) hopefully will not be so easily broken by
administrations to hurt the poor who are victim of civil servants’
misrepresentations, and that (b) will confirm that, in the context of
the delivery of social services, when the misrepresentation involves a risk of
physical harm, or when civil servant are guilty of corruption and malice, the
immunity for misrepresentation under GC 818.8 [and 28 USC 2680 (h)] does not
hold.
D
The Los Angeles County DPSS duty to the poor.
This second question
presented to the court appears to be, as mentioned in the introduction, a
direct consequence of the appeal Court’s position on the LAC PDSS immunity for
misrepresentation under GC 818.8 because if the Appeal Court decision concludes
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’ misrepresentation, even if the employee may
be held liable under GC 822.2 [like in this case because the employees are
guilty of corruption and malice], then, of course, there is no statute that
renders the LACDPSS liable, and because of GC 815 the DPSS cannot be held
liable in tort. But, if
the Supreme Court reverses the position on the immunity for misrepresentation,
then the DPSS become liable for the following reasons.
The initial complaint, the
appellant’s brief and various other pleadings stated clearly that (and
explained why) the civil servants concerned were also guilty of corruption and
malice, and therefore why the immunity under GC 822.2 did not apply [the
appellant wrote: ‘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…]. The petitioner also recalled the definition
of ‘corruption’ given by James Wolfensohn, President of the World Bank: ‘Corruption, robbing the poor from the
little they have, is a key poverty issue’. When social workers steal the poor social benefits, they are
guilty of corruption.
The petititoner explained
also that the defendants were guilty of actual malice ‘such as a conscious
intent to deceive, vex, annoy or harm injured party in his or her business’,
since they made every effort to harm injured him, to sent him more than 16
times in the street, ...’ And, as
written in the appellant reply’s brief, the defendants never denied this fact
because the punitive damages were asked on this ground. So, if the Supreme Court decides to deny
LACDPSS the immunity for misrepresentation under 818.8, then both GC 815.2, and
GC 822.2 makes the LACDPSS liable for misrepresentations.
Although
this issue was never addressed by the District Court nor the Appeal Court, the
Supreme court will note that the facts do not justify any exception to the general duty to exercise
ordinary care (Civ. Code 1714). By
looking at the factors the California Supreme Court thought courts should consider in
determining whether or not an exception to the general duty to exercise
ordinary care should be made, it will see that the facts described in the
complaint clearly confirms the existence of defendants duty (2).
(2)
1_The forseability of harm to plaintiff was obvious; not only the refugee is
matter of life and death, but it is associated with the most basic social
benefits necessary to survive, so it was obvious that by depriving
plaintiff of these basics benefits he would be (physically) hurt and put in
extremely difficult situation, even life threatening situation after the many
years of persecution he suffered.
2_The
degree of certainty that plaintiff has been injured is also obvious; plaintiff
has been sent in the street more than 16 times, was forced to sleep in the street
or in indecent shelters for months and could not find an appropriate job as the
result of the misrepresentation.
3_The
connection between the defendants conduct and the injury suffered is also
obvious since the lies on plaintiff status, the violation of the regulation and
state and federal statute resulted in the immediate termination of plaintiff
benefits and created plaintiff difficulties;
4_
The moral blame attached to defendants conduct is also obvious since it is
their responsibility to prevent such problems and the regulation were made
precisely to prevent these problems.
And here there was an obvious intent to deceive plaintiff and to harm
injured him in his business, their conduct was despicable and must be
discouraged.
5_ It
is important to try to prevent future similar harm by pointing out defendants
obvious violations of laws and regulation.
The extend of the burden on the defendants caused by the imposition of a
duty to exercise care is insignificant because again regulations were made to prevent
these problems and it is the role of the USCIS and the DPSS to process asylum
application honestly and to help refugees.
To conclude with this short
preview of a case - to which the 35 millions of US citizen living under the
poverty level, the about 3 billions earth inhabitants living with less than $2
/ day, the responsible US taxpayers, and the tens of thousand of homeless in
the Los Angeles County would certainly want you to give a ‘favorable
attention’-, the petitioner would like to underline that his point of view
is not just supported by various legal cases opinions, by the change of
position of the State of California or by the Appeal Court’s obvious error, but
also by simple good sense [if the community invests money to help the poor, it
is not wise to give social workers the right to lie to the poor to rob them]
and by the most basic humanitarian principles.
And, of course, the fact the Los Angeles County should be responsible
for the wrongdoings of his employees acting within the scope of their
employment should be also obvious.
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Date: October
, 2005
Pierre Genevier
No.
IN THE
SUPREME COURT OF THE UNITED
STATES
Pierre Genevier PETITIONER
VS.
Los Angeles County
Department of Public Social Services — RESPONDENT(S)
I, Pierre Genevier, do swear or declare that on this
date, October , 2005, as required
by Supreme Court Rule 29, I have served the enclosed
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and
PETITION FOR A WRIT OF 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:
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. (by mail).
Los Angeles County Board of Supervisors, 500 West Temple Street, Los Angeles CA90012. (by personal delivery).
I declare under penalty of perjury that the
foregoing is true and correct. Executed on October , 2005
(Signature)