423 E 7th street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
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Superior Court of California
County of Los Angeles
Pierre Genevier (Plaintiff) |
VS | Complaint For Damages:
US Citizenship and Immigration Services (Defendant) | [Amount demanded $ 1 700 000
Los Angeles County, DPSS (defendant) | Exceeds $25 000]
CA Department of Social Services (defendant) | Unlimited Case
MPP Stand for Manual of Policies and Procedures.
The document contains the complaint (44 pages including the list of exhibits page 44) and 10 exhibits (89 pages).
Causes of action.
By Pierre Genevier (plaintiff)
Against: The US Citizenship and Immigration Services (USCIS formerly ‘INS’)
The Los Angeles County (Department of Public Social Services - LACDPSS)
The California of Department of Social Services (CADSS).
Defendant USCIS (‘INS’) is, and all times herein mentioned was, a public entity existing under the laws of the State of California with its principal place of business in Washington. (USCIS, 425 I “eye” street N.W., Washington, DC 20536) (USCIS Los Angeles District Office, 300 North Los Angeles Street, Los Angeles, CA 90012)
Defendant Los Angeles County (Department of Public and Social Services) is, and all times herein mentioned was, a public entity existing under the laws of the State of California with its principal place of business in Los Angeles, California. (Executive Office of the Board of Supervisor, 383 Kenneth Hahn Hall of Administration, 500 West Temple Street, Los Angeles, CA 90012) (DPSS, 12 860 Crossroads Parkway South, City of Industry, CA 91746).
Defendant California Department of Social Services is, and all times herein mentioned was, a public entity existing under the laws of the State of California with its principal place of business in Sacramento, California. (CA DSS, 744 P Street, Sacramento, CA 95814) (DSS Los Angeles office, State Hearing Division, 811 Wilshire Blvd, 11 floor Room 1118, Los Angeles, CA 90012)
Plaintiff is informed and believes and thereon alleges that (defendants) Mr. Robert Looney and Mrs. Janie Lee who made the representations alleged under section deceit-1, were the Director of the Los Angeles Asylum office and the LA-‘INS’ attorney in charge of the plaintiff’s case, and, at all time of the making of the representations herein alleged and all times herein mentioned were acting within the course and scope of their employment and authority for the defendant USCIS (formerly INS).
Plaintiff is informed and believes and thereon alleges that (defendants) Judge Mendozza, Judge Castello, and Mr. Robert C. Campbell who made the representations alleged under section deceit-4, are the Presiding Judge of the Los Angeles Administrative Court, the Chief Administrative Law Judge of CADSS, and the Assistant General Counsel of the CADSS, and, at all time of the making of the representations herein alleged and all times herein mentioned were acting within the course and scope of their employment and authority for the defendant California Department of Social Services.
Plaintiff is informed and believes and thereon alleges that (defendants) Mrs. Beccerra and Mrs. Verdugo who made the representations alleged under section deceit-5, and Mr. Lemons and Mrs. Sota who made the representations alleged under section deceit-2, are the Director and Deputy Director of the LACDPSS Wilshire Special District, a supervisor of the LACDPSS Metro North District, and a LACDPSS state hearing section agent, and, at all time of the making of the representations herein alleged and all times herein mentioned were acting within the course and scope of their employment and authority for the defendant Los Angeles County DPSS.
Plaintiff is ignorant of some of the true names of defendants sued herein as does LA-INS-duty-attorney-1, LA-INS-deportation-officer-1, LACDPSS-managers, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. (Plaintiff is informed and believes and thereon alleges that each of the fictitious named defendants is responsible in some manner for some of the occurrences herein alleged, and that plaintiff’s damages as herein were proximately caused by their conduct.)
First Cause of Action
Deceit-1 (‘INS’ intentional misrepresentations)
On or about September 30, October 31 and November 13 2002 (and perhaps earlier), defendants, INS-duty-attorney-1, Mr. Robert Looney, INS-deportation-officer-1, and Mrs. Janie Lee pretended directly or indirectly (or suggested as a fact):
1_ That the plaintiff did not have the refugee status;
2_ That the INS status verifier who had signed and stamped the verification of status listing him as a refugee (exh.1) had made a mistake in reading the record. They also indirectly pretended that they could not see on their computer where the status verifier had read that the plaintiff had been given the refugee status (, which is more than ‘surprising’ for the director of the asylum office, INS-attorneys and a deportation officer).
The representations made by defendants (verbally for INS-duty-attorney-1 and Mrs. Lee, in writing for Mr. Looney, and both in writing and verbally for the Deportation officer –1 see exh. 2.2 and 2.3) were in fact false. The true facts were:
1_ The plaintiff had the refugee status as the status verifier had written it on his initial verification of status, as several of his colleagues status verifiers confirmed it on November 13th 2002 and as administrative judge Tolentino ‘certified’ it in his decision dated February 5 2003;
2_ The status verifier did not make a mistake in reading the record (even after they changed their position on December 1 02, they did not say that they had done a mistake). Despite several complaints or requests for information (see exh. 10), the ‘INS’ (USCIS) management and ‘INS’ office of internal audit never denied the validity of the initial verification of status listing the plaintiff as a refugee, (instead the Nebraska refugee center accepted the plaintiff’s recent refugee employment authorization application, see exh. 10.4).
When the defendants made these representations, they knew them to be false, because either the different defendants did not have the same information that the status verifier had to establish the verification of status listing the plaintiff as a refugee, and in this case they had no reason to doubt the status verifier’s reading of the record and to doubt that the plaintiff had obtained the refugee status, particularly when one knows that it can happen that asylum seekers receive their refugee status after their case has been transferred to the immigration court (as the clerk supervisor of the immigration court mentioned it, when the plaintiff presented her the verification of status at the end of September 2002). Or they did have the same information that the status verifier had, and in that case they should not have blamed the status verifier for making a mistake and should not have pretended that the plaintiff did not have the refugee status, because they could see on their computer that the plaintiff had been given the refugee status.
Moreover, the Director of the Asylum office, the INS attorneys (and the immigration judge) perfectly knew that the plaintiff had already spent almost one year in refugee shelters in Switzerland and in Belgium after several years of difficult living condition in France (and that he was now living in a homeless shelter). They also knew that asylum seekers must be given the benefit of the doubt, that they were not competent to judge certain aspects of the case, and that the plaintiff had asked for the intellectual support of several US universities. The plaintiff’s application contained the description of a project proposal he submitted to international organizations and around 20 letters of supports from experts and politicians around the world, including 2 G8 leaders. And the description of another proposal submitted to the international community that could have prevented the war with Iraq (see exh. 10.6)!
So they should not have been surprised by the fact that someone else had judged the case and granted the plaintiff the refugee status. On July 16 2002, the director of the asylum office had even said verbally that ‘they’ could not take a decision on the case, and therefore that ‘they’ were transferring the case to the immigration court. Finally, given the nationality of the plaintiff, French, the possibility of an error was very low (only 3 French nationals obtained the refugee status in 2002 according to the ‘INS’ statistics).
Without going into the detail of the plaintiff’s asylum case, before coming to the US the plaintiff had applied for asylum first in Switzerland, and Switzerland had denied his case, because he could not pay the 600 CHF for the procedure (he complained about that at the UN, but the UNOHCHR did not even respond!). Then he had applied for asylum in Belgium, and Belgium denied his case with a decision full of lies that was not even compatible with the European Convention of Human Right. Belgium had been sentenced by the ECHR 2 weeks before he applied on February 5 2002, but they still refused to change their unfair decision and their social services kicked the plaintiff out of the refugee shelter before he could even present his appeal to the supreme court!
Finally, he came to apply in the US (after a short stay in Canada), because the LA immigration court had granted the refugee status to a French man one year earlier (so they knew that there can be serious ‘justice’ problems in France!), and because he has a brother and a sister, who are US Citizens (his brother could give him housing and assistance only until the LA asylum office transferred his case to the immigration court, and the plaintiff did not want that his brother and sister’s families be victim of any form of persecutions for supporting him while he was defending his rights and proposals, after reading this document you may think that his fear were not unfounded).
The plaintiff wanted first to apply for asylum in Canada, because many of the documents justifying the well founded of his application are written in French. But finally decided to come here, to translate only few of these documents and to ask for the intellectual support of several US universities that could (better) understand the work that he had done and the relation between this work and the difficulties he had in France. The plaintiff studied 5 years in the US in the 80s.
Status verifier responsibility.
It is also important to note that the status verifiers verify the status of alien all day long and all year long, and that they only do that, therefore we can trust the initial reading of the record, particularly when it is confirmed by several other status verifiers (if the status verifier can’t verify a status the entire control system at the INS falls apart, and if the director of the asylum and other ‘INS’ employees don’t even trust their colleagues status verifier, there are serious problems at the ‘INS’ that must be addressed urgently).
The defendants, particularly INS duty attorney-1 and deportation officer-1, have shown, independently from their dishonesty, very little respect for their colleagues status verifiers, when they put the responsibility of an error on them, and when they mentioned ‘status verifiers are just clerks, clerks make mistakes’ (INS duty attorney-1 on or about September 30) and ‘ status verifiers are clerks, they are lower than nothing’ (deportation officer-1 comment when the plaintiff reminded him that several of his colleagues status verifiers had just confirmed – 15 minutes earlier- the validity of the document listing him as a refugee on November 13 2002)!
The defendants made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff to act in reliance on these representations in the manner hereafter alleged, or with the expectation that plaintiff would so act. They (director of the asylum office, INS-attorneys) knew that whoever had given the plaintiff his refugee status had pointed out their wrong (dishonest) appreciation of the case, so in putting the responsibility of an error in reading the record on the status verifier, they simply wanted to hide the fact that the plaintiff’s case had been judged already by people more competent, more willing to respect the rights of asylum seekers, and, without any doubt, more responsive of the plaintiff’s extreme situation.
They knew that the refugee status is a matter of life and death for the one who asks for it and obtains it, and that, independently from their dishonesty, they had shown a total lack of humanity in denying (or delaying) the plaintiff’s case and in hurting an individual who had made an important work for the international community (supported by many experts around the world). They wanted the plaintiff to continue with the procedure at the immigration court to make him loose his asylum case, and the possibility to obtain justice against France, to cover their error, to hurt one individual who could not defend himself properly and most probably for ‘political’ reasons too. They did not want the plaintiff to obtain any (refugee) assistance to resettle in the US, or even to live in decent conditions until the next hearing that had been unfairly set for January 23 2003.
They also did not want to give any confirmation of the plaintiff refugee status that could have been used by the press and media to report this special and unusual grant of asylum (in 2001 the press and media, here and in France, had extensively reported that a French man had received the refugee status in Los Angeles). They did not want that the press and media talk about the important issues raised by the plaintiff’s case (political and scientific issues), particularly the proposal that could have prevented the war with Iraq (proposal which has political implications in the US too), and indirectly talk about their poor appreciation of the case. And they did not want that the plaintiff get any form of credit or recognition for his work like a presentation by the press of his proposals, which could have helped him to obtain a job and to resettle.
Finally, it is possible, even probable, that the plaintiff was granted the refugee status before the hearing of August 27 2003, and that both the immigration judge and Mrs. Lee knew it during the hearing, but said nothing (this would certainly explain why the immigration judge was very discourteous during the hearing, and why he unfairly delayed the next hearing, since the refugee benefits are given for only 8 months after the status is granted, in delaying the hearing 5 months, the judge may have tried to prevent the plaintiff from getting any help to resettle). In any case their effort, their intentional misrepresentations, was nothing else than an attempt murder and a fraud.
Second Cause of Action
Deceit-2 (LACDPSS intentional misrepresentations-1 and suppression of fact)
On or about December 1 2002 and December 29 2002 (and before), defendants, Mr. Lemons, Mrs. Romie Sota, LACDPSS-managers pretended (suggested as a fact):
1_ That the plaintiff was eligible for only 8 months of RCA after his entry date in the United States (exh. 3.2);
2_ That the plaintiff did not have the refugee status because the status verifier had mentioned in a phone call (on December 1) that the refugee status had been ‘imputed by mistake’ (exh. 3.1).
The representations made by defendants, LACDPSS-managers, Mr. Lemons (exh. 3.1) and Mrs. Sota (exh 3.2) were in fact false. The true facts were:
1_ The plaintiff was entitled to 8 months of RCA after the date his asylum was granted as Judge Tolentino confirmed it in his decision (exh. 3.4);
2_ The plaintiff had the refugee status as the status verifier had written it on his initial verification of status (exh. 1), as several of his colleagues status verifiers confirmed it on November 13th 2002 and as administrative judge Tolentino ‘certified’ it in his decision dated February 5 2003.
When the defendants made these representations, they knew them to be false because it is not possible that the LACDPSS office (particularly its Director, Deputy Director, and supervisors) in charge of the refugees did not know that a new law allowed refugee or asylee to get 8 months of RCA after the date their asylum or refugee status is granted, the law had been ‘updated’ so that, among other reasons, the Calwork program and the RCA program can be operated in the same manner.
Moreover, on December 1 2002, the plaintiff had brought them and showed to Mr. Lemons a copy of the Internet page of the DSS describing this new law (see exh. 4.2). It is after the plaintiff showed Mr. Lemons this document confirming that he was eligible for 8 months of RCA after his refugee status was granted, that Mr. Lemons went to call the ‘INS’ and came back to say that the INS status verifier had just acknowledged a mistake on the plaintiff status (the error on the plaintiff’ refugee status came in very handy as you understand)!
The defendants also knew that the proper procedure to obtain a confirmation of the validity of an INS document was not to give a phone call, but to send a G845S or G845 supplement form (exh.4.1) that also allows counties (at the same time) to get the date this refugee status was granted. They should have followed this procedure on September 24 02, immediately after the plaintiff applied for RCA (because he explained that he did not have the refugee status when he entered the US) to determine for how long (or for how many months) the plaintiff was eligible for RCA. Mr. Lemmons and the LACDPSS managers also knew that the ‘INS’ policy states that asking for social benefit should not affect the alien status, because they give out a notice explaining this policy to every alien when they arrive at the social services office (see exh. 4.3).
The defendants made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff to act in reliance on these representations in the manner hereafter alleged, or with the expectation that plaintiff would so act. The LACDPSS perfectly knew that they (and the catholic charity, volag) had done several serious errors on the plaintiff’s case on purpose (they had not followed the appropriate procedure to get the date the refugee status was granted, they incorrectly terminated the RCA benefits after 2 months, they had refused to give him any housing assistance,); and they knew that these errors and the opening of almost all the homeless letters that the plaintiff denounced in his complaint were grave offenses that created a serious prejudice to the plaintiff, so they tried to do everything they could to hurt the plaintiff and to discourage him from complaining at the justice to cover their dishonest behavior. They also wanted the plaintiff and the judge to believe that the fact that they had not sent the G845 form (at the end of September 02) and asked for the date the refugee status was granted to the INS was not intentional!
They wanted to steal the plaintiff several months of RCA cash benefits and to keep him from getting certain important benefits associated with the refugee status like housing assistance. The director of the catholic association (volag) assigned to the plaintiff refused to give any housing assistance (although it is one of their responsibility, see art. 69.203.1 of MPP), because the plaintiff only had a verification of status listing him as a refugee to justify his refugee status, (which was ridiculous because it was the social services that had sent the plaintiff to this volag to obtain the job training, and the DPSS had accepted this document to pay the RCA benefits, and because, at the same time, the volag was ready to give the plaintiff the work training – another of their responsibility!).
When they deliberately omitted to send the G845 supplement form to the INS, they simply ‘suppress’ (avoid that the plaintiff obtain) an important fact, the date his asylum was granted (the plaintiff mentioned several times that he did not have the refugee status when he entered the US and that it was why he did not have an appropriate I94) and avoided that the plaintiff obtained a document confirming his grant of asylum. The status verifiers confirmed on November 13 2002 that they had the date at which the plaintiff was granted the refugee status, but that they could not give it to him, because the LACDPSS had to ask for this date in writing (with the G845 form). If the LACDPSS had sent this G845 form in September or early October 02, the plaintiff could have obtained the housing assistance from the Catholic association immediately, and the press and media could have used this document to report this unusual grant of asylum.
The plaintiff wrote to the press and media on November 14 2002 to explain that he had been granted the refugee status, and to describe his proposals and the difficulties he was having (with the social services and the ‘INS’), but they did not respond (perhaps among other reasons because they could not have a confirmation of this grant of asylum). In suppressing this important fact (the date the asylum was granted), the LACDPSS probably also tried to avoid that he press and media talk about the plaintiff grant of asylum. And if the date the plaintiff was granted the refugee status is anterior to August 27th 2002, date of the first hearing, they may have tried to cover the dishonesty of the judge and the immigration lawyer who did not say anything during the first hearing (this procedure will hopefully clarify when the plaintiff was initially granted the refugee status and when the deceit or fraud started exactly).
Third Cause of Action
Deceit-3 (LACDPSS intentional misrepresentations- 2,
On or about March 13 2003 and April 02 2003, defendant, LACDPSS-managers continued to pretend (to suggest as fact):
1_ That the plaintiff did not have the refugee status, first because the plaintiff did not present a new verification of status (exh. 5.1), and then because the ‘INS’ sent them an altered verification of status (exh. 5.3);
2_ That they did not ‘determine’ the date the plaintiff was granted asylum (exh. 5.2), and therefore indirectly, that the appropriate procedure to criticize the decision of Judge Tolentino was through their notice of action, compliance report, instead of filling a rehearing request or a petition at the superior court;
3_ That the appropriate procedure for the plaintiff to complain about their compliance was to present a new request at the state hearing division on exactly the same issue (the validity of the initial verification of status);
4_ That the plaintiff was not eligible for permanent housing assistance (because his permanent status had not been established - see exh. 5.1), and for homeless assistance.
The representations made by defendants, LACDPSS (notices of action exh. 5.1 and 5.2) were in fact false. The true facts were: 1_ The plaintiff had the refugee status as the status verifier had written it on his initial verification of status, as several of his colleagues status verifiers confirmed it on November 13th 2002 and as administrative judge Tolentino ‘certified’ it in his decision dated February 5 2003.
The DPSS had no proof that the original verification of status was not a valid document (the altered verification is not a proof that the initial document is not valid, and was not different than a phone call from the ‘INS’ that the judge had not accepted as proof of the change of the plaintiff’s status). The ‘INS’ management had given no written document confirming that an error had really been made, despite the fact that the plaintiff had denounced the fraud on his status to the ‘INS’ office of Internal audit and to the ‘INS’ management, because this pretended change of status was simply a lie and a fraud.
2_ The compliance report, notice of action, is not made to criticize the judge’s decision, the appropriate procedure to criticize an administrative decision is to file for a rehearing or for a petition at the superior court.
3_ The appropriate procedure to complain about a compliance issue is not to file another complaint, au contraire, the regulation says that the plaintiff has not right for a new hearing on compliance issues (art. 22 078.31 of the MPP);
4_ The plaintiff’s permanent status had been established with his initial verification of status, and therefore he was eligible for permanent housing assistance as the judge wrote it; and because the US (law) does not let refugees in the street (even if the volag don’t want to give them housing). And he was entitled to the additional $ 400 of homeless assistance as the judge had written it on the last page of his decision.
When the defendants made these representations, they knew them to be false, because: 1_Judge Tolentino had just stated in his decision that he did not trust the information given over the phone by the ‘INS’ status verifier and that the LA County should help the plaintiff get the date his asylum was granted. The decision of the judge never mentioned that the plaintiff had to present a new verification of status, or that the initial verification of status was not valid, au contraire it ‘certified’ that the document was valid and that the plaintiff was granted the asylum. The LACDPSS made no effort to get this date with the G845 supplement form for example, or through a letter sent to the INS management to obtain a clarification of what happened or through a petition at the superior court to let a judge decide, because they knew what had happened. All the evidences show that ‘they’ asked the status verifier to lie about the plaintiff status after the plaintiff asked for a hearing on November 14 02, and that some social services and ‘INS’ employees jointly organized the fraud on the plaintiff refugee status.
Moreover to support their fraudulent misrepresentation, they did not hesitate to present an altered document send by the INS status verifier, same verification of status where the word refugee had been blanked, and the plaintiff employment authorization date had been added (see exh. 5.3). It was obvious that this document was a ‘fraud’, because the plaintiff did not have an employment authorization on September 5 when the document was issued, and did not prove at all that the initial document was not valid, (it was not different than a phone call from the INS status verifier that the administrative judge did not accept). The ‘INS’, itself, does not accept altered document as valid document (see G845 S form exh. 4.1).
2_ The LACDPSS also perfectly knew that the appropriate procedure to criticize an administrative decision was not to write the problem on the notice of action, compliance report, but to ask for a rehearing or to present a petition at the superior court, because it is written on the decision. And they also knew that if they wanted to present new evidences that may change the decision they had to explain it in a rehearing request or in petition at the superior court, since it is written of the decision ‘If you want to present additional evidence, describe the additional evidence and explain why it was not introduced before and how it would change the decision.’ (see first page of exh. 3.4)
3_ They also knew that the appropriate procedure for the plaintiff was not to present a new complaint because the plaintiff had presented to them the regulation article which stipulates that the plaintiff cannot present a new complaint on a compliance issue.
4_ And finally they knew that the plaintiff was eligible for permanent housing assistance and homeless assistance as the judge wrote it in his decision (they did pay part of it, the additional 400 dollars for temporary shelter), because they knew that his permanent status had been established with his initial verification of status, and because the refugee resettlement program give housing assistance to refugees.
The defendants made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff to act in reliance on these representations in the manner hereafter alleged, or with the expectation that plaintiff would so act. They wanted to use the time to impose their point of view to the plaintiff, they wanted to have Judge Tolentino’s decision changed without having to follow the appropriate procedure because they knew they were wrong and that an honest judge would never accept an altered document to justify a pretended re-determination of a refugee status. All the evidences show that some social services and ‘INS’ employees organized the fraud on the plaintiff’s status to lower their responsibility in all these errors, to punish the plaintiff for defending his rights, and probably for ‘political’ reasons too, so they could not go in front of an honest judge, and risk seeing their fraud to be discovered!
If the social services employees had not been part of the fraud, they would not have hesitated to ask for additional information to the ‘INS’ management, or to file a complaint at the court to let a judge decide which document was valid and when the status was granted. They also wanted to put the burden of a new complaint to the justice on the plaintiff, because they knew that he was living in extremely difficult condition and could not present a complaint properly. They did not want to admit their initial intentional misrepresentations and their errors in writing, because they knew they had created the plaintiff a very grave prejudice, and did not want the plaintiff to have a document he could use in a civil court to obtain compensation. And finally they did not want the plaintiff to obtain any housing assistance to hurt him as much as possible and to make it impossible for him to file new complaints properly and to resettle in the US.
Fourth Cause Of Action
Deceit-4 (DSS intentional misrepresentations, Mendoza, Castello, Campbell)
Misrepresentations made by Judge Mendoza.
On or about May 2 2003 (and before) defendant, Judge Mendoza, pretended (suggested as a fact) in his letter (exh. 7.1):
1_ That the plaintiff had not already contacted the LACDPSS to discuss the problems of compliance, and that, if the plaintiff did not agree with the LACDPSS compliance report, the appropriate procedure was to contact the county.
2_ That the ‘INS’ ‘had issued a notice saying that the plaintiff was not refugee’, and therefore that the altered document was a reliable document to indicate that the plaintiff refugee status had been changed and that the appropriate procedure for the county was to criticize the decision in its compliance report. That if the plaintiff wanted to dispute this finding (the new INS document), he should contact the ‘INS’, and therefore that the plaintiff had not already contacted the INS appropriate office.
The representations made by defendants Judge Mendoza were in fact false. The true facts were:
1_ The plaintiff had already contacted the LACDPSS several times to complain about their dishonest compliance with his decision (see exh. 6). And after these different contacts with the LACDPSS, the plaintiff had contacted Mr. Ceja from the compliance unit at the Administrative Court. Mr. Ceja had inquired about the issues raised by the plaintiff and presented the documents to Judge Mendoza who had decided to handle the matter personally (see exh. 6).
The regulation does not say that the victim must contact the county several times to discuss the compliance problems. In fact, the regulation says that the county must explain on its compliance report that the plaintiff can contact the Department if he/she does not agree with the compliance (art 22.078.22 of the MPP), which the LACDPSS did not do of course (see exh. 5.1, 5.2). The regulation also stipulates that the Department should evaluate the compliance report and produce a notice or notification explaining, if the compliance is appropriate or not, and if it is not appropriate what are the appropriate steps that must be taken to comply fully (art. 22.078.3, 22-078.6 .61, .62 of the MPP).
2_ The ‘INS’ did not issue a notice saying that the plaintiff did not have the refugee status. The status verifier issued an altered verification of status (same initial verification of status where the word refugee had been erased and the date of the plaintiff’s employment authorization had been added exh. 5.3), as already mentioned. This document was necessarily a ‘fraud’ as already explained on line 414-416! Moreover the LA County should have presented its new evidence in a rehearing request or in a petition at the superior court. And the plaintiff had already contacted the ‘INS’ office of Internal Audit to denounce the employees misconduct and the fraud on this pretended change of status.
When the defendant, Judge Mendoza, made these representations, he knew them to be false, because:
1_ The plaintiff had explained him and Mr. Ceja that the LACDPSS refused to comply and even refused to give him the altered document sent by the ‘INS’; and as Presiding judge, he could not ignore that the regulation says that the plaintiff can contact the Department, if he does not agree with the compliance and that the Department must evaluate the compliance and establish a notice or notification about the compliance to say, if it is or not appropriate! Especially after the plaintiff reminded him these regulation articles verbally and in writing (see exh. 6.6). He could not ignore also that time is an important factor (for claimants and) in the regulation since the regulation gives time limits to counties to perform certain actions (30 day to produce the compliance report for example, delay that they did not respect, art. 22.078.2 of MPP).
2_ The defendant could not ignore that the altered verification of status issued by the same status verifier was not a reliable document on a matter as important as the change of a refugee status, a matter of life and death, and was not different than a phone call that his colleague, the Deputy Presiding Judge, Mr. Tolentino, had judged not trustworthy. He also could not ignore that his deputy, Judge Tolentino, had confirmed the validity of the initial verification of status and had ‘certified’, in some way, that the plaintiff had the refugee status (when he wrote in his decision that the LACDPSS should help the plaintiff to ‘get the date his asylum was granted’). And he could not ignore that the LA County should present its new evidence at the superior court.
Finally Judge Mendoza perfectly knew that the plaintiff had followed the appropriate procedure at the ‘INS’ to denounce the employees misconduct and the misrepresentation made on his status, because the plaintiff presented him a copy of the complaint sent to the ‘INS’ office of internal audit (exh.11.1), which proved also that the plaintiff had given exactly the same information about the fraud to the administrative judge and to the ‘INS’ office of internal audit. And he knew that the ‘INS’ management had not responded or confirmed that the status verifier initial document was not valid.
Judge Mendoza made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff to act in reliance on these representations in the manner hereafter alleged, or with the expectation that plaintiff would so act. He did not want the plaintiff to obtain the benefits granted by Judge Tolentino, and he wanted that the plaintiff presents a new complaint (on this same issue, the validity of the initial verification of status listing the plaintiff as a refugee) to win time and to change Judge Tolentino’s decision without having to follow the appropriate procedure to cover the errors made by the LACDPSS.
He wanted to hurt the plaintiff as much as possible by pretending he had not been granted the refugee status (in a previous meeting he had told the plaintiff: ‘we are going to send you back to France’), and by keeping him in the street. He also did not want to write the appropriate notice on the compliance, because he knew he was wrong and did not want to give a written proof of his dishonesty that the plaintiff could have used in a
court of law.
Misrepresentations made by Judge Castello.
On May 28 2003, defendant, Judge Castello made the following representations (exh. 7.2) to plaintiff:
1_ ‘It appears from the information contained in your file, Los Angeles (LA) has now decided to challenge the designation of your refugee status as the result of the INS informing them of their initial mistake.’ and ‘Judge Tolentino initial determination that you were a refugee, is not binding on LA County subsequent actions as they relate to the federal governments re-determination of your refugee status’.
2_ ‘A new notice of action (NOA) dated April 2, 2003 mailed to you confirms that the county has substantially complied with judge Tolentino’s decision Order…’, and ‘since the NOA states that you are not eligible for the last month of RCA benefits because of the new INS re-determination of your immigration status and that you are not eligible for housing assistance, you have the right to request a new hearing to challenge the county’s representation that the federal government did indeed change your immigration to a non refugee status, the judge at the hearing has no authority to modify a federal government determination.’
3_ ‘The county has the burden of proof to submit evidence to support their determination of your immigration status and the appropriate regulations and laws that determine your ineligibility for housing assistance and /or other social services benefits’.
4_ ‘The regulations and the order cited by judge Tolentino correctly state that recipients of RCA benefits are not entitled to homeless assistance.’
The representations made by defendant, Judge Castello, were in fact false. The true facts were:
1_ The LACDPSS had already decided to challenge the designation of the plaintiff refugee status as the result of the ‘INS’ status verifier informing them over the phone (on December 1 2002) of their ‘pretended’ initial mistake during the first hearing, because the LACDPSS had presented a note from Mr. Lemons (exh. 5.2) saying that he had called the INS status verifier who had acknowledged that the refugee status had been ‘imputed incorrectly’ (meaning the error, if there were really an error, was not made by the status verifier).
And Judge Tolentino initial determination that the plaintiff was a refugee, is binding on LACDPSS ‘subsequent actions as they relate to the federal governments re-determination of the plaintiff refugee status’, because the LACDPSS had already made reference to this re-determination of the plaintiff refugee status during the first hearing (the validity of the initial verification of status was a compliance issue), because Judge Tolentino (who has the authority to evaluate the existing documents to determine the status of an alien, see exh. 8.2 page 2) had not given any credit to the phone call made by Mr. Lemons to the status verifier office, and because the decision state that if the parties want to present new evidence, they must present them to the rehearing unit or the superior court, explain why these evidences were not presented earlier and how they can change the decision.
Moreover the procedure is not to call ten times or hundred times the status verifier office to know, if the verification of status is valid or not, there is a special procedure which allows the counties to submit a G845S or supplement form to obtain a confirmation of the validity of the document and additional information like the date a status is granted, the LACDPSS did not follow this procedure on purpose to steal the plaintiff several months of RCA benefits as we have seen already.
2_ The notice of action does not confirm anything, it only gives a report of the compliance by the county, it is the job of the Department to confirm or not if the compliance is appropriate. The regulation does not say that it is OK to comply ‘substantially’, especially when ‘substantially’ incorrectly means not paying 8 months of RCA benefits, and not giving a room and medical protection to a homeless! In the regulation either the compliance is appropriate or it is not appropriate.
There has been no re-determination of the plaintiff’s immigration status by the ‘INS’, the ‘INS’ management never gave any response to the plaintiff’s complaint at the office of Internal Audit and has never given any document saying that the initial verification was in fact incorrect. There were only misrepresentations of the actual facts that the plaintiff denounced to Judge Tolentino during the first hearing and the Judge has determined that based on the document he had the initial verification of status is valid!
If the County does not agree with the order, it must file a complaint either at the rehearing unit or the superior court, particularly if it thinks it has as new ‘proof’ (not presented at the hearing), an altered document. And the plaintiff has no right for a new hearing on a compliance issue as the regulation stipulate it art. 22.078.31 of the MPP. The issue of the pretended error of the INS on the plaintiff’s status had been discussed during the first hearing and therefore was a compliance issue.
3_ The LACDPSS had the burden of proof to submit evidences to support their determination of the plaintiff immigration status and the appropriate regulations and laws that determine his ineligibility for housing assistance and /or other social services benefits. Based on the proofs it presented, the Judge explained that the plaintiff had the refugee status and that the evidences showed that he was eligible for permanent housing assistance.
4_ The decision of Judge Tolentino says on one page that the plaintiff is not eligible for homeless assistance and the additional 400 $ it requested, but it also says on the last page that the plaintiff is eligible for this 400$, so the order does not just state that the plaintiff is not eligible for this homeless assistance, there is an apparent ‘contradiction’, which is explainable. The regulation, which says that a refugee is not eligible for homeless assistance, also says that if the volag or sponsor is unable or unwilling to provide the refugee benefits, cash benefit can be granted according to the Calwork standard (art. 69-203.27, 28 of MPP). Moreover the issue was not just about the homeless assistance, but also about the permanent housing assistance.
When the defendant, Judge Castello, made these representations (and immediately after), he knew them to be false, because these issues were precisely the issues that the plaintiff had raised in his complaint about judge Mendoza’s appreciation of his case (exh. 6.6 and 6.7) and had underlined again in his letter of complaint dated July 11 2003 (exh. 8.1). Moreover he could not ignore that the altered document presented by the INS was a fraud and did not prove anything about the reality of the plaintiff refugee status or an eventual re-determination of the plaintiff refugee status (especially after the plaintiff had sent a complaint to the ‘INS’ office of internal audit).
He could not ignore that the plaintiff had followed the appropriate procedure at the ‘INS’, since he had and used (for his letter, see page 1) a copy of the complaint sent to the ‘INS’ office of internal audit. If the initial verification of status had been a mistake the ‘INS’ office of internal audit would have mentioned it immediately. Finally Judge Castello can be considered as an expert in administrative law and cannot pretend that he does not know the difference between a compliance issue and a compliance related issue. The plaintiff had stressed this particular point in his letter of complaint. And he cannot pretend either that he does not know the appropriate procedure to criticize administrative decisions since he reminded the plaintiff of it at the beginning of his letter (see exh. 7.2).
Judge Castello made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff to act in reliance on these representation in the manner hereafter alleged, or with the expectation that plaintiff would so act. He wanted to use his status of expert in administrative law to try to discourage the plaintiff from denouncing again the outrageous behavior of the LACDPSS and of Judge Mendoza. He wanted to encourage the plaintiff to present a new complaint at the state hearing division to make him loose both time and the benefits granted by Judge Tolentino, and to put the burden of a new complaint on the plaintiff who he knew was living in extremely difficult conditions and could not do it easily.
He used the term ‘substantially’ to try minimize the fact that the LACDPSS deliberately refused to ‘credit’ the (7) months of RCA that had been paid already as judge Tolentino had ordered it, and to pay any permanent housing assistance, which was critical for the plaintiff, and to try to minimize judge Mendoza mistake. And he promoted the system, which consists (for counties) in criticizing the decision in the notice of action, compliance report, instead of with the appropriate procedure, and with the help of the presiding judge and the time, in having the decision of justice unfairly changed. This system is very dishonest, but seems to be widely used to rob the poor from the benefits they obtain through the state hearing process, and to cover the grave errors (or frauds) of counties.
Misrepresentations made by Mr. Campbell.
On October 2 2003, defendant, Mr. Campbell, intentionally misrepresented the important issues raised by the plaintiff, intentionally misrepresented the order of the decision, and intentionally misrepresented the facts. He writes in exh. 7.3:
1_ ‘In this case though the county apparently did not disagree with the decision (a) as it understood it and took steps to comply with it. The Department had no reason to review the county compliance statement in detail until you first complained. The process the Department then followed was appropriate (b). The Department did not ignore or change the decision of the administrative law judge. The department reviewed the decision to determine if the county correctly complied with it and its initial determination was that the county had complied with the provisions of the decision (c). After much effort on your part, the Department ultimately agreed with your complaint on the issue of whether the county should have provided Refugee Cash assistance benefits for April 2003. Unfortunately, it took time for the department to make the correct determination on that issue.’ (exh. 7.3 page 1)
The order of the decision:
2_ The number of RCA months to be paid (d). ’ It appears from your statement that you believe your are entitled to 8 months of payment in addition to any aid paid pending that you received prior to the decision. That is not how the Department interprets the order of the administrative judge. …’, ‘... The county could ‘credit’ meaning subtract, that amount from the eight months in determining how much you were still to be paid…’ (exh. 7.3 page 2, 3)
3_ The permanent housing assistance and homeless assistance (e). ‘The second issue concerns your illegibility for homeless assistance…’, ‘the judge is clear that you are not eligible for homeless assistance…’ (page 3), ‘In you letter of September 8 you assert that the judge did not state that you were not eligible for housing assistance. In support …’ ‘ You then quote the order from page 6 of the decision which state that ‘Los Angeles county shall reevaluate the claimant’s eligibility fro permanent housing assistance, effective November 21, 2002, and issue such benefits , as otherwise eligible. You assert that the judge would not have made such an order if had thought that you were not eligible for housing assistance…’. (exh. 7.3 page 3)
The issues raised by plaintiff:
4_ ‘ You (the plaintiff) contend that the administrative law judge in his decision determined your correct immigration status and appear to assert that it can only be changed by order of the superior court even if the INS has subsequently re-determined your status (f). The Department views this issue somewhat differently.’, ‘ it appears that the administrative law judge appropriately refused to consider testimony from the county at the hearing to show that he INS had re-determined your refugee status. The testimony was not supported by any documentary evidence from the INS. However, that does not mean that the county would be precluded in the future from acting on reliable documentation (g) from the INS that your status has changed’. ‘Judge Castello is correct (h) that only the INS can make the determination concerning the immigration status…’ (exh. 7.3 page 4).
The representations made by defendants, Mr. Campbell, were in fact false. The true facts were:
1_The LACDPSS did not agree with the decision (a), because its first action was to ask the plaintiff to present a new verification of status, although there is a G845S form that allows the county to inquire about the validity of a document and about the date a status has been granted (see exh.4.1). Moreover, the plaintiff had explained in writing and at the hearing that the status verifier had told him on November 13 2002 that they could not give him the date his asylum was granted, because the LACDPSS had to ask for it in writing.
‘The process the Department then followed’ was not appropriate (b), because the plaintiff first complaint was at the end of March 03 when he contacted Mr. Ceja of the compliance unit at the administrative court (exh. 6.2), and because after this first complaint the Department, the presiding judge (on May 2, exh. 7.1), did not determine if the compliance was appropriate as the law requires him to do, and to do rapidly. The ‘time’ is an important element of the regulation, which is perfectly understandable when one knows the very difficult condition in which the (poor) victims of administrative errors may live in. The regulation says ‘upon receipt of the compliance report the Department must determine if the compliance is appropriate or not’, but it does not say that the Department must send again the claimant to talk to the county, as Judge Mendoza did.
The Department’s initial determination was not that the Department thought the county had complied with the provisions of the decision (c), because Judge Mendoza never clearly wrote it (and neither did Judge Castello), au contraire he asked the plaintiff to go back and talk to the county, which means that he knew they were wrong, so he should have explained the county the appropriate steps to follow to comply fully with the decision. The Presiding Judge wrote that the county had sent a report saying that it had complied with the decision, but this does not means that the Department think that the compliance is appropriate.
Then Judge Castello, did exactly the same thing, he mentioned that a new notice of action confirm that the county has ‘substantially’ complied with the judge’s order. The regulation does not say that the county must comply ‘substantially’ (especially when the difference between ‘substantially’ and ‘fully’ or ‘honestly’ is 8 or 7 months of RCA, a room and medical protection for a homeless), it say that the county must comply with the decision, and if this compliance is not correct or complete the Department must explain the county what steps must be taken to comply (fully). And again the regulation does not say that the victim must present a new complaint on exactly the same issue, au contraire, the regulation says exactly the opposite as already mentioned (art. 22.078.31 of MPP). So it is obvious that the Presiding judge and the Chief Administrative Law judge have lied, have used imprecise language, have not done their compliance evaluation job properly, and have recommended improper steps to be taken on purpose ‘or intentionally’.
On the order of the decision.
2_ The number of RCA months to be paid (d), the true fact is that ‘credit’ does not mean ‘substract’, as Mr. Campbell explains it, but add. According to the Random House Dictionary ‘credit’ means: ’10. a sum of money due to a person, anything valuable standing on the credit side of an account, 13. a deposit or sum of money against which a person may draw’. And this is very understandable too. The RCA cash assistance of 330$ is significant, if all the other benefits of the RCA program (like housing assistance, medical assistance) are given at the same time. If the refugee does not get the housing assistance, he must pay for a room somewhere, and in LA the cheapest room one can find is 135$/week, so after paying the hotel for two weeks, he is again in the street, and has no stability, security, etc. to start his resettlement in the US (the plaintiff has applied everywhere for a low cost room, SRO, housing authority, etc., but all his applications were denied).
Judge Tolentino knew that perfectly, and he knew that the regulation cannot possibly accept that a refugee be left in the street when he just has been granted his refugee status (refugees most of the time have to go through extremely difficult living condition like the plaintiff had for years, see also exh. 4.2). Moreover a refugee should not have to complain several times or every two months to the justice to obtain his 8 months of RCA, because while the refugee writes the complaint, he cannot look for a job, especially if he has to live in the street and carry his bags all around. And finally these 8 months should give some perspective to organize the resettlement, it is not ok to give 2 then 5 months, while waiting for the result of a complaint and one month several months later!
3_ The housing assistance (e). The second issue is not (or not just) about the homeless assistance, but about permanent housing assistance. No, Judge Tolentiono is not clear that ‘you (the plaintiff) are not eligible for homeless assistance’ (see below line 820-824). Yes, the judge would never have written the decision as he did, if he did not think that the plaintiff was not eligible for permanent housing assistance and for the additional $400 of once in a life time homeless assistance (the LA County even agrees with the plaintiff on this point, because it wrote in its first notice of action, exh. 5.1, ‘since your permanent status has not been established, LA county is not able to approve permanent housing assistance payments…’, meaning a refugee is eligible as Judge Tolentino suggested it).
Mr. Campbell never mentioned, for example, that if the judge did write on page 2 and 5 that refugee were not eligible for homeless assistance (and the remaining 400$ of the once in a lifetime assistance), he also wrote at the end of the decision on page 6 exactly the opposite, since he wrote that the plaintiff was eligible to get this remaining 400 $ homeless assistance. What should we think? Should we think that Judge Tolentino, the deputy presiding judge, has a disturb mind, and this is why on page 2 and 5 he writes something and on page 6 he writes exactly the opposite? Or should we think that he has a certain expertise in administrative law, and he is trying to explain a detail of the regulation to the LA County, and the plaintiff?
The plaintiff explained in his rehearing request that this apparent ‘contradiction’ can be explained. At first the plaintiff was not eligible because the initial housing assistance is usually the responsibility of the volag under the RCA program (art. 69.203.01). Now if the volag cannot (or does not want to) help the refugee with housing, he should not be left in the street, an honest regulation would not allow that, and as the plaintiff mentioned in his rehearing request, there is an article of the regulation (art. 69.203.27, 28) that plans for this eventuality and that allows the counties to pay certain cash assistance to the refugee (the volag did not pay) according to Calwork standard. So at first the plaintiff was not eligible for housing assistance, but after the volag had refused to give him this housing assistance, he became eligible for the Calwork permanent housing assistance and homeless assistance benefits on November 21 02 when the problem was addressed. (This is at least a logical explanation to Judge Tolentino’ decision, certainly a more honest one than saying it ok to let a refugee sleep in the street).
On the issue raised by the plaintiff:
4_ It is not just the plaintiff who asserts that only the superior court or the rehearing unit can change the order of the decision (f), it is also the Chief Administrative Law Judge, Mr. Castello, in his letter dated May 28 2003. Moreover the plaintiff does not say that the pretended re-determination took place after the decision of Judge Tolentino, since he repeated over and over that the validity of the initial verification of status was an issue raised in the first hearing, and was therefore a compliance issue. And the ‘INS’ never re-determined the refugee status of the plaintiff, at least never said in writing that it did. The status verifier presented an altered document that is all. Mr. Campbell also knew that asking for social benefits should not affect the alien immigration status.
‘Acting on reliable document’ or the reliability of the altered verification of status, (g), was the first issue raised by the plaintiff (see exh. 8.1 p 4) (but Mr. Campbell omit to talk about that). An altered document presented by the same person who is accused to have done a mistake and did not recognize his mistake, cannot be considered as a reliable document, and it is no different than a phone call. And this document does not say that the plaintiff’s status has changed, it only says that the plaintiff has an employment authorization, which is true like many or all the refugees have before they get their permanent resident card. Judge Castello is not correct that only INS can make a determination on the plaintiff immigration status (h), because the plaintiff presented the ‘INS’ internet page on this subject (exh. 8.2) which says ‘what can states do to verify status before the BCIS issues a final new regulation on the new verification system’, Answer: The law does not address this issue; states can decide whether to rely on self certification, document review, or contacting the BCIS…’.
When the defendants made these representations, he knew them to be false, because the plaintiff had underlined all these important points in his letter dated July 11 2003, that Mr. Campbell, Mr. Bolton, and Mrs. Saenz received. Moreover, Mr. Campbell knows he is lying when he writes: ‘the county apparently did not disagree with the decision as it understood it…’ (a). If the order says, help the plaintiff get the date his asylum was granted, and the county asks the plaintiff to present a new verification of status, it obviously disagrees with the order, particularly if it writes on its notice of action that it is not the county that determines the date the asylum is granted.
The decision never said that it was the county that determines the date the asylum is granted, it only said that the county should help the plaintiff get the date his asylum was granted with the G845 form for example, or with a letter to the ‘INS’ management to have some clarification about the contradictory information sent by the status verifier or finally with a petition to the superior court to ask which verification of status is valid and when the refugee status was granted! Mr. Campbell perfectly knew that the Department did not follow the appropriate procedure (b), because the plaintiff had described precisely the article of law referring to the compliance process, and it was obvious that neither Judge Mendoza nor judge Castello had written that the county had properly complied since one sent back the plaintiff toward the county and the other talked about ‘substantial’ compliance!
‘Credit’ never means ‘subtract’, Mr. Campbell perfectly knows that (d), just as he knows that the refugee should not have to sent a complaint every two months to get his RCA benefits. And the refugee resettlement program gives refugees housing assistance (e), cash benefits, and medical protection, Mr. Cambpell knows that also. The plaintiff had also explained the detail of the housing assistance issue and of the difficulties he had with the volag in his rehearing request, so Mr. Campbell who studied the rehearing request could not ignore this point either and the fact that Judge Tolentino is not ‘clear’ on the homeless assistance issue.
Mr. Campbell also knew that an altered verification of status was not a reliable document (g) (especially when a formal complaint for employee misconduct has been sent to the appropriate ‘INS’ office), that the pretended re-determination of the plaintiff refugee status had been discussed during the first hearing and that Judge Tolentino had not given any credit to this pretended change of status, and that the LA County should present its new evidence to the superior court or the rehearing unit (f). And Mr. Campbell could not ignore the INS directive on the SAVE verification system, because the plaintiff had presented the ‘INS’ internet page on this issue in his letter dated July 11 2003 (exh. 8.1 p 2), so he knew that Judge Castello was not correct on this issue (h).
The defendant, Mr. Campbell, made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff to act in reliance on these representation in the manner hereafter alleged, or with the expectation that plaintiff would so act. Mr. Campbell wanted to cover the dishonest appreciation of the case made by his two colleagues, Judge Castello, and judge Mendoza, and to cover the many grave errors made by the LACDPSS. He says that ‘credit’ means ‘subtract’ to minimize the error made on the plaintiff status (if ‘credit’ means ‘add’, as it does, the CADSS is stealing 8 months of RCA to the plaintiff, a homeless!). He even recommends to the plaintiff to present a petition for judicial review at the superior court, because he knows that this procedure cannot lead to any compensatory damage and any punitive damage, and therefore that even if the superior court did give reason to the plaintiff, he and his colleagues would not risk anything or any punition for their dishonest behavior.
He also knew that the plaintiff was in such a difficult situation that the probability that he presents any complaint for compensatory damages at the justice was very low, because no lawyer or legal help assoication would help anyone that does not have any money on this kind of case (to prepare this complaint required the plaintiff more than 7 weeks of work without counting the necessary research time spent on the previous complaint). Mr. Campbell like his colleagues wanted to hurt the plaintiff as much as they could (and to keep him in the street with nothing) for having denounced their outrageous behavior toward him and the poor in general. The different defendants demonstrated that they absolutely don’t care about what the regulation says (even when someone brings the exact article that refers to his case). And if a poor dares to complain, they steal him/her his/her benefits, and force him/her to complain over and over, because they know that the time is on their side and that the claimants don’t have the money or the living condition to complain properly, and that if they do succeed, they do not risk anything under the normal complaint process (rehearing and judicial review)!
Elements of Laws.
Misrepresentation of law.
‘Absent special circumstances, a misrepresentation of law is not actionable fraud. That is, a representation of law by a layperson not occupying a confidential relationship to whom it is addressed and based on facts equally known or accessible to both does not ordinarily justify reliance on the representation. Exceptions. The rule precluding liability for misrepresentation of law has several exceptions. An exception also exists when the party expressing the opinion purports to have (or is reasonably believe by the other party to have) expert knowledge concerning the matter.’ CAC. of pleading practice.
Judge Tolentino, who rendered the decision dated February 5th 2003, is the Deputy Presiding Judge of the LA region, Judge Mendoza is the Presiding Judge for the LA Region, Judge Castello is the Chief administrative law judge of California DSS, and Mr. Campbell and Mr. Bolton, his supervisor, are the Deputy Legal Counsel and Legal Counsel of the California DSS, so it is clear that these people can be qualified as expert in their field of administrative law, and therefore are not protected by the general rule concerning the misrepresentation of law.
Similarly Mr. Diaz, director of the LA County state hearing division, (and higher level managers at the LACDPSS) can also be considered to be an expert in administrative law, and should not be protected by the general rule concerning the misrepresentation of law.
Fifth Cause of Action
Deceit-5 (LACDPSS intentional misrepresentation-3,
termination of GR)
On or about July 10 2003, defendant Mrs. Beccera and Mr. Verdugo, pretended (suggested as a fact) that the plaintiff was ineligible for the GR program because he did not have the refugee status.
The representations made by defendants were in fact false. The true fact was the plaintiff had the refugee status and was eligible to receive the GR benefit as the status verifier had written it on his initial verification of status, as several of his colleagues status verifiers confirmed it on November 13th 2002 and as administrative judge Tolentino certified it in his decision dated February 5 2003.
When the defendants made these representations, they knew them to be false because they had all the necessary documents (a valid GR verification of status listing the plaintiff as a refugee, a decision from the administrative judge confirming the validity of this document,) to assume that the defendant was a refugee eligible for GR. The additional document requested to the status verifier were not necessary, and did not in any way deny the fact that the plaintiff had been granted the refugee status (one document say that the plaintiff is not a permanent resident, which is true but does not mean that the plaintiff is not a refugee – refugee too must apply for permanent residency, and the other document remind that the plaintiff has an employment authorization). The plaintiff also presented the INS internet page concerning the verification of status regulation (exh. 8.2).
The defendant made these representations with the intention to deceive and defraud plaintiff and to induce plaintiff to act in reliance on these representations in the manner hereafter alleged, or with the expectation that plaintiff would so act. They knew that the plaintiff was homeless and that he had complained about the compliance errors made on his case to the DSS management, so they wanted to put him in an even worst situation, they wanted to keep him in the street with no cash benefit and no food stamp (at the same time the other DPSS office stole a letter which lead to the plaintiff termination of his food stamp), they wanted to hurt the plaintiff as much as they possibly could to prevent (and discourage) him from complaining.
Actual and justifiable actions taken by the plaintiff.
Actions taken after the ‘INS’ misrepresentations.
Plaintiff at the time the INS employees pretended (suggested as a fact) that the status verifier had made a mistake in reading the record and that he did not have the refugee status had to believe that they could be right (everyone can make a mistake, not just the clerks), even though the decision to grant him asylum made sense, and the probability of an error was low as stated above; and he had to try to obtain an explanation, because it is not possible that two different entities of the same organization have a different point of view on such an important matter (again the refugee status is a matter of life and death for the one who asks for it and obtains it). This is why the plaintiff went back to see the status verifier on November 13 2002 and mentioned that several of their colleagues had questioned their reading of the record.
After that several other status verifiers had confirmed that the document was valid, that Mr. Mahoney did not make a mistake in reading the record, and that they even had the date at which the plaintiff was given the refugee status (but that they could not give this date to him because the social services had to ask for it in writing), it was obvious that a fraud was taking place and that the plaintiff could not trust the point of view of the INS attorneys, of the director of the asylum office, and soon after of the deportation officer. But the plaintiff still had to trust the administration (USCIS, defendant) and to rely on its capacity to resolve this grave problem (cheating and lying on a matter of life and death is nothing else than an attempt murder, so their behavior was criminal).
The plaintiff first asked to see the supervisor of the deportation officer and information officer, but they refused to let the plaintiff see anyone else and asked a security officer to escort the plaintiff to the door! Then he sent a complaint for employees misconduct to the ‘INS’ office of Internal Audit (exh.10.1). First this office said that it had not received the documents, then he sent the same documents in a registered letter, and they still said that they had not received the letter! Finally he sent a fax that was received, but the investigation branch gave no explanation for the described problems, they only forwarded the complaint to the management without saying to which manager they had sent it to (see exh. 10.2)! Their response was not fair at all, and the INS manager to whom the complaint had been forwarded never responded.
On January 14 03, the plaintiff also wrote a letter to several politicians and administration officials including Mr. Garcia (the ‘INS’ director at the time) to explain the problem and to present his work and certain issues of his case that are important for everyone, but he received no response. More recently in October 03, the plaintiff wrote to Mr. Aguirre, the new Director of the USCIS, but the customer service (that responded) did not give any explanation of what happened or sent any document confirming the plaintiff’s grant of asylum (see exh. 10.3 and 10.4) (only the refugee center accepted the refugee employment authorization application).
Concerning the procedure at the immigration court, for the plaintiff (and according to some ‘INS’ attorneys), he should not have had to go in front of the judge with a document listing him as a refugee (moreover an immigration Judge does not judge case ‘INS’ against ‘INS’, he judges case asylum seekers against INS, the problem was clearly a problem within the ‘INS’), but at the same time the plaintiff needed a proper decision, which confirmed that he had suffered persecutions and a great prejudice in France to have his case reopened at the international justice (the ECHR had rendered an unmotivated decision on his case) and to obtain justice against France. And he was not sure of the role of the immigration judge in these errors also, even if his behavior had been more than questionable when he refused to hear the case in August 02 and delayed (so much) the hearing until January 23 2003.
The plaintiff sent a motion to close the case on November 25 02 thinking that it was the ‘INS’ that should have asked to close the case, the motion was ignored. The decision of the judge, after a recommendation of the INS Attorney, Mr. Lee, to deny the plaintiff the asylum because he was sick and could not attempt the hearing, was the proof of their dishonesty, because they totally ignored the fact that the plaintiff had already been granted the refugee status. The asylum procedure is a very ‘sensitive’ procedure since it should determine the ‘credibility’ of the application (in a short time), it is obvious that an ‘INS’ attorney and an immigration judge that ignore a document listing an asylum seeker as a refugee or don’t even know why this document was issued, are not at all ‘credible’ and cannot judge this kind of case properly.
The plaintiff sent an appeal to the Board of Immigration Appeal to denounce the bad behavior of the judge and the INS attorney and to try to obtain a decision which confirmed his grant of asylum and the fact that he had been victim of persecutions in France, but his appeal was not studied (the problem was a problem within the ‘INS’ anyway). The plaintiff also had to denounce this fraud to the administrative judge. And the decision of Judge Tolentino confirmed, in some way, that a fraud was taking place, but this decision was not executed properly as we have seen. Since all these efforts where unsuccessful, this complaint remains for the plaintiff the only way to obtain justice, but he was still put in extremely difficult living condition and forced to spend a lot of time to defend his right and to denounce the defendants’ despicable conduct!
Actions taken after the LACDPSS and the CADSS misrepresentations.
Plaintiff at the time the LACDPSS employees pretended that the plaintiff was not eligible for RCA benefits after November and that he did not have the refugee status, had to trust the administrations (LACDPSS and CADSS) and to rely on the CADSS capacity to resolve the problem, the decision of Judge Tolentino proved that there are some honest employees at the DSS. Even after the defendant, the LACDPSS, refused to comply with the decision, he had to trust the CADSS and to rely on its capacity to resolve these problems. This is why he contacted the DSS Mr. Ceja as the law allows him to do. After the dishonest evaluation of the compliance by Judge Mendoza, he still had to rely on the administration’s capacity to resolve the problem and had to send a complaint to the management.
The plaintiff did not know that the LACDPSS did not care about the regulation, the procedures and the decisions of administrative judges, that the DSS would cover their dishonesty, and that their only objective was to force the plaintiff to complain over and over again on the same issues to make him loose time, the benefits he was entitled to receive, and to hurt him as much as possible. Judge Castello, who decided to response to his complaint, also made a dishonest appreciation of the case as we have seen and used his status of expert to encourage the plaintiff to follow a wrong path to complain.
So the plaintiff had to send a new complaint, to the DSS director and to the governor to try to stop this nonsense. The governor office ‘recommended’ to the plaintiff to present a complaint at the Commission on Judicial Performance. The plaintiff spent more than two weeks to write a precise complaint about Judge Castello and Judge Mendoza’s dishonest behavior, but this office refused to study the complain saying that it did not have the jurisdiction to study the case. It is still not clear who has made a mistake, the office of the governor that directed the plaintiff toward this commission or the commission that pretended that they did not have jurisdiction over this case!
The plaintiff had to do everything it could to have the Department correct its errors, because they were extremely grave errors, but they did not, so this complaint at the civil court becomes the only way to obtain justice.
Elements of law.
Gov. code 822.2 provide that 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.
In determining whether the immunity provision apply, some courts have drawn a distinction between misrepresentation that cause interference with financial or commercial interests and those that cause harm in a social service area, such as adoption placement. For example, in a case involving placement for adoption of a child suffering from physical disorder, an appellate court held that Gov. Code 818.8 and 822.2 do not immunize a county from liability for intentional misrepresentation or fraudulent concealment of a child’s medical condition.
Liability of employer
An employer will not be liable for punitive damage under civ. code 3294 (a) for the fraudulent acts of an employee unless the employer had advance…, or authorized or ratified the wrongful conduct for which punitive damage are awarded.
‘Under statute permitting punitive damage against employer in certain instances for conduct by its employees, ‘malice’ if there is an intent to injure plaintiff, require more than ‘will full and conscious’ disregard of plaintiff interest; additional component of ‘despicable conduct’ must be found.
It is clear that the ‘INS’ (USCIS) management was informed and ‘authorized’ the wrongful conduct of its employees (even if it contradicts the fact that it granted the plaintiff the refugee status), since the plaintiff wrote a complaint of employee misconduct to the ‘INS’ office of internal audit and also wrote to several administration chiefs (including Mr. Garcia the ‘INS’ director at the time) and to politicians, so the administration is liable for the intentional misrepresentations described above.
The LACDPSS and the DSS management were also informed of the wrongful conduct of their employees and there is no doubt that they authorized it (even encouraged it) as we have seen above. So the LACDPSS and the DSS are also liable for the misrepresentations described above.
Amount of compensatory damage.
One who willfully deceive another with the intend to induce him or her to alter his or her position to his or her injury or risk, is liable for any damages that injured party thereby suffers (civ. Code 1709). Additionally, for the breach of an obligation not arising from a contract, the measure of damages, except whether otherwise expressly provided by civil code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not (civ. Code 3333).
Punitive (exemplary) damages
Art 3294 of CC. In a action for the breach of an obligation not arising from contract, where it is proved by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, the plaintiff, in addition to actual damages, may recover damages for the sake of example and by way of punishing the defendants.
‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willfully and conscious disregard of the rights and safety.
‘Oppression’, for which punitive damages may be awarded, means despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of his right.
‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known t defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Conscious disregard, malice
To establish ‘conscious disregard’ and thus malice necessary for award of exemplary damages, plaintiff that defendants were aware of probable dangerous consequences of his conduct and that he willfully and deliberately failed to avoid those consequences.
Punitive damages may be awarded only on showing regarded by law as adequate to establish ‘malice in fact, that is motive and willingness to vex, harass, annoy, or injure.
Independently from their very dishonest behavior, the ‘INS’ defendants have shown a total disrespect for their colleagues status verifiers when they said ‘status verifier are clerk, they are lower than nothing’ or ‘ status verifier are just clerks, clerks make mistakes’, and when they put the responsibility of a mistake on them to cover the fact that it was them (the director of the Asylum office and the INS attorneys, at least) who had not done their job properly on the plaintiff’s case. This behavior is outrageous and should have been denounced by the ‘INS’ office of internal audit, particularly when one knows that it raised serious concerns about the ‘INS’ internal ‘control system’, and that these misrepresentations referred to a matter of life and death.
The LACDPSS employees, the two ‘chief’ judges, and the DSS management also showed very little respect for their colleague, judge Tolentino, although his decision was confirmed to be conformed with the California law by the rehearing unit and very little respect for justice. The evidences show that they use regularly the system which consists in criticizing the administrative decision in the compliance report (instead of through the rehearing or superior court process), and of using the dishonesty of the presiding judges to have the decision changed or of using time to have the claimants accept their terms. When one knows that the LACDPSS cheats and lies on about everything they can cheat or lie on to rob the poor (they are supposed to help), one can easily understand why. The plaintiff has mentioned the opening of almost all the homeless letters that the judge had said it raised ‘serious constitutional right concerns’, but they behave very badly in many other areas.
They don’t respect the time to present the document like the compliance report, they steal (or delay the distribution of) letters to make the poor loose their benefit (they made the plaintiff loose his food stamp benefit this way, he had to complain to the administrative judge to get these food stamps back!). They don’t motivate their notices of action, they refused to present the regulation as the law requires them to do. They make the aid recipient sign documents without giving them time to read them. They don’t indicate on their compliance report that the aid recipient may contact the Department, if he/she does not agree with the compliance as the law requires them to do. And finally, they are extremely discourteous, they often do not answer the phone and make the poor wait for no reasons to humiliate them and waste their time to make it harder for them to find a job!
The Presiding judges have a great responsibility in this outrageous behavior, because administrative judges have essentially an educational role, not a punitive role, so they should be very precise. This educational role takes place when the administrative decisions are rendered and when the counties are encouraged to comply with these decisions. If the Presiding judges and the Chief Administrative Law judge do not follow the appropriate procedure they are supposed to follow, do not to encourage an appropriate compliance, and do not encourage the Counties to follow the appropriate procedure to criticize administrative decisions, there are very little chances that the counties will behave according to the regulation’s articles or will follow the different procedures described in the regulation.
Moreover the time is a very important factor in the regulation and for the aid recipients who live most of the time in very difficult condition, so the presiding judges should encourage the counties to pay careful attention to this time factor, particularly when one knows that most of the programs GR, RCA, Calworks are limited in time. Getting all the help at the proper time is critical, as explained above the cash assistance without the housing assistance is almost irrelevant and the value of the food stamp is greatly reduced, when one has no place to cook or to store the food. The social workers behave badly on purpose to make the different aid given to the poor irrelevant or inefficient, to ‘rob the poor from the little they have’ or are entitled to have, which is often called corruption.
We unfortunately see everywhere in California the results of the very dishonest behavior described above. Although we are in the richest state of the richest (and most advance) country in the world, there are 100 000s of people (even handicapped) sleeping or begging everywhere in the street of California (2 millions people are made homeless every year in the US). The charities that are also supposed to help the poor, behaved extremely badly (a SRO hotel manager has been sentenced recently to 6 years of jail for organizing an illegal system to collect the rent from the poor!). And the faith-based charities impose outrageous rules to the homeless to humiliate them and make their life even harder, they run indecent homeless shelters (which often kick out homeless every 7 or 30 days) and often force (directly or indirectly) the poor to read the bible or to go to church although they should spent time to look for jobs and educate themselves!
As a proximate result of the fraudulent conduct of defendants as herein alleged, plaintiff was sent in the street or forced to change shelters more than 16 times since September 5 2002, he was forced to sleep in the street several nights, and to live in homeless shelters for several months with a great risk of catching the tuberculosis or other serious diseases, of being robed or even being killed (the plaintiff was threatened to be killed by another homeless for refusing to buy a small bottle of water for 25 cents!). He also was not able to cook or to store food, and therefore could not nourish himself properly and suffered health problems on a regular basis; he became sick every month or more (chronicle bronchitis, stomach aches, hart problems due to the high stress, etc.). And he was forced to complain constantly to defend his rights and to spend a lot of time writing the complaints and finding the article of law that referred to his case, and never received a document confirming that he suffered a grave prejudice in France, by reason of which plaintiff has been damaged in the sum of $1 700 000. Subdivided as follow:
1_ Wage loss, estimated at $300 000 (from November 02 to February 04, 15 months) and increasing by $20 000 every month until the dispute is resolved.
2_ Loss of years of life expectancy. The plaintiff was put in extremely difficult living condition that caused him health problems and great stress, which means that his life expectancy will be reduced significantly (according to different statistics the life expectancy of people who are exposed to great stress, difficult living condition and long unemployment is greatly lowered). The damage is estimated at $380 000.
3_ Loss of earning capacity. The plaintiff did not receive any decision confirming his refugee status and the fact that he suffered severe persecutions in France. Decision that should have helped him to obtain justice against France and a compensation, he has then suffered a loss of ‘earning’ capacity estimated at $1 000 000.
4_ ‘Psychological’ damage. The plaintiff felt very unwelcome and has lost his trust in these administrations, because of a small group of people did everything to make his life absolutely miserable. This is a terrible feeling to have for someone who studied here, and had always had a great respect for this country. The damage is estimated at $20 000.
The ‘INS’ (USCIS) employees who lied on the plaintiff’s status have demonstrated an extreme cruelty, because they knew that the refugee status is a matter of life and death, that the plaintiff had waited for a long time (in extremely difficult living condition in refugee or homeless shelters in two other countries) for this refugee status, and that this refugee status was given among other reasons to improve his living conditions. To create a doubt after the ‘INS’ had finally granted the asylum was then a real torture for the plaintiff (and is a criminal behavior from the defendants). Their objective was also to deprive the plaintiff from his legal rights (the right to housing assistance, and other RCA benefits), to subject the plaintiff to cruel and unjust hardship in conscious disregard of his right, and to make him loose his asylum case. They were therefore guilty of malice, oppression, and fraud, all the different elements justifying punitive damages.
The social services (LACDPSS and CADSS) employees (even the managers and legal experts) also demonstrated an extreme cruelty, because they knew that the plaintiff was homeless and had lived for a very long in extremely difficult condition for reasons that were independent from his will. They knew that he had done all the efforts he could do to obtain more information from the ‘INS’ and that he could not get the date his asylum was granted from the status verifier as we have seen. They deliberately forced the plaintiff to complain over and over on the same issues to deprive the plaintiff from his legal rights (the right to housing assistance, and other RCA benefits) and to subject the plaintiff to cruel and unjust hardship in conscious disregard of his right by keeping him in the street. Given that this behavior is usual and lead to hundreds of thousand of people living in the street the Court should punished even more severely the DSS and the LACDPSS to discourage them from behaving so badly.
The aforementioned conduct of the defendant was an intentional misrepresentation, deceit, or concealment of a material fact known to the defendants with the intention on the part of the defendant or thereby depriving plaintiff of property or legal rights or otherwise causing injury, and was despicable conduct that subjected plaintiff to a cruel and unjust hardship in conscious disregard of plaintiff’s right, so as to justify an award of exemplary and punitive damages.
Wherefore, plaintiff prays judgment as follows:
1. For general damages in the sum of $ 300 000 increasing by $20 000 every month until the dispute is resolved.
2. For special damages for loss of earning capacity, loss of years of life expectancy, and psychological damage in the sum of $1 400 000.
3. For punitive damages in an amount appropriate to punish defendants and deter others from engaging in similar misconduct;
4. For Cost of suits incurred herein; and
5. For such other and further relief as the court may deem proper.
I, Pierre Genevier, am the plaintiff in this action. I have read the foregoing complaint and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and as to those matters, I believe to be true.
I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct.
January 27, 2004.
Exh. 1: Verification of status listing the plaintiff as a refugee (1 page double sided).
Exh. 2: Letter sent to Mr. Looney (2.1, 1 page), response from Mr. Looney dated October 31 2002 (2.2, 1 page), response made on November 13 2002 by the Deportation officer (2.3, 1 page), document given by the information office on November 13 2002 (2.4, 1 p).
Exh. 3: Note from Mr. Lemons (3.1, 1 page), statement of position of the LA County DPSS presented to the judge (3.2, 3 page), plaintiff statement of position (3.3, 4 pages), decision of Judge Tolentino dated February 5 2003 (3.4, 6 pages), letter sent by the rehearing unit to confirm the validity of the decision of Judge Tolentino (3.5, 1 page).
Exh. 4: G845S and G845 Supplement forms (4.1, 3 p), DSS Internet page describing the new law for refugee (4.2, 5 p), notice to immigrant asking for social services (4.3, 1 p).
Exh. 5: Notice of action dated 03/13/03 (5.1, 1 page), notice of action dated 04/02/03 (5.2, 1 page), first altered verification of status sent at the end of March (5.3, 3 pages), second altered verification of status sent at the end April 2003 (5.4, 2 pages).
Exh. 6: Letters concerning the compliance: Letter to Mrs. Diaz dated March 26 03 (6.1, 2 pages), letter to Mr. Ceja dated March 27 03 (6.2, 2 pages), email from Mr. Ceja dated April 2 03 (6.3, 1 page), email from Mr. Ceja dated April 10 03 (6.4, 1 page), letter sent to Mr. Ceja dated April 9 03 (6.5 , 4 pages), letter sent to Judge Mendoza on April 17 03 (6.6, 2 pages), letter sent to Judge Mendoza dated May 12 03 ( 6.7, 2 pages).
Exh. 7: Letter sent by Judge Mendoza (7.1, 1 page), letter sent by Judge Castello (7.2, 2 pages), and letter sent by Mr. Campbell (7.3, 5 pages).
Exh. 8: Letter sent to Judge Castello (copy the governor, the director of the DSS,) dated July 11 2003 (8.1, 9 pages), INS internet pages describing the status verification process (8.2, 2 pages).
Exh. 9: Letters to the DSS director and to the Governor dated July 16 03 (9.1, 1 page), and letter to Mrs. Saenz dated August 2 03 (9.2, 2 pages), and notice of action denying the plaintiff’s GR (9.3, 1 page).
Exh. 10: Complaint sent to the INS audit office (10.1, 7 pages), letter sent on April 22 2002 (10.2, 1 page), response sent by this INS office of internal audit (10.3, 1 page), letter sent to the director of the BCIS (10.4, 2 p), response sent this customer service office (10.5, 1 p), letter sent to the Editor of the Globe and Mail on 01/02/04 (10.6, 5 p).
(Total pages = 89)
Los Angeles, the