In the Court of Appeal of the State of California
Second Appellate District
Pierre Genevier (Plaintiff and Appellant) | Appeal Case No.: B 191 039
| Superior Court No: BC 340 712
State of California, |
Department of Social Services (Defendant and Respondent)
Appeal from an Order of Dismissal
of the Superior Court, County of Los Angeles,
Honorable Judge Morris Jones
Appellant’s Reply Brief
423 East 7th Street, RM 528
Los Angeles, CA 90014
Ph.: (213) 622-1508
Emails: firstname.lastname@example.org, email@example.com,
Appellant pro se
A Comment on respondent’s ‘preliminary statement’
and ‘statement of the facts’ sections and on 2 lines of page 9. 4
B Comment on respondent’s ‘standard of review’
and ‘statement of the case’ sections. 6
C Comment on respondent’s ‘Argument section I’
on the mandatory duty. 6
D Comment on respondent’s ‘Argument section II’
on the quasi-judicial immunity. 8
E Comment on respondent’s ‘Argument section III’
on the immunity for misrepresentation. 9
F General comment and conclusions. 10
Table of authorities
CC 1094.5 7, 8, 11
Connelly v. State of California (1970) 3 Cal. App. 3d 744,
84 Cal. Rptr. 257 9
Johnson v. State of California (1968) 69 cal. 2d 782-800 9
Jopson v. Feather River Air Quality Mgmt. Dist.,
133 Cal. Rptr. 2d 506, 507 (Cal. Ct. App. 2003) 9, 10
Masters v. San Bernadino County Employees Retirement Association
(1995) 32 Cal. App. 4th 30, 42-43 9
Michael J. V. Los Angeles County, Department of Adoption
(app. 2 Dist 1988) 247 Cal. Rptr. 9, 10
Ramos v. Merced County (1971) 4 Cal. 3d 685,
94 Cal. Rptr. 421, 484 P 2d 93 7, 11
Scott v. Los Angeles County 27 Cal page 145 7
United States v. Neustadt (1961) 366 U.S. 696, 711, fn. 26 9
Treatise, law review, and other references
The California Tort Liability practice book 7
California Manual of policy and procedure (MPP) 7, 8, 11
A Comment on respondent’s ‘preliminary statement’ and ‘statement of the facts’ sections and on 2 lines of page 9.
Respondent writes in its ‘Preliminary Statement’ section (page 1) that ‘appellant ….alleges that Presiding administrative law judge Ronald J. Mendoza….misrepresented in their separate letters addressed to plaintiff himself that he was not eligible for federally funded benefits for aliens designated as refugee..’, in its ‘Statement of the Facts’ section (page 4) that ‘the letters ….were in response to appellant’s request to overturn the LACDPSS’s decision which denied appellant refugee cash assistance benefits’, and finally on page 9 that ‘here appellant alleges that upon his notification…the state employees refused to force the Los Angeles County to provide the social benefits’, but this is deliberately imprecise and incorrect because respondent ignores the critical fact, the fact that Judge Tolentino had already ruled that appellant was entitled to the refugee benefit and that a rehearing had confirmed his decision (and therefore that the letters in question were written as part of the compliance process).
Appellant asked the DSS (a) to force the LA County DPSS to comply with Judge Tolentino’s decision (judge Tolentino is a DSS administrative law judge who ruled that appellant is a refugee and that the DPSS should pay the 8 month’s of refugee cash benefits and give the housing assistance) or (b) at least to force them to follow the appropriate procedure to criticize this decision (petition at the Superior Court since it was to late for a rehearing), so appellant did not ‘just’ ask to ‘overturn the LACDPSS’s decision which denied appellant refugee cash assistance benefits’ or did not ‘just’ ask the DSS ‘to force’ the DPSS ‘to provide’ the benefits. And defendants (Castello…) did not just ‘….misrepresented in their separate letters... that he was not eligible for federally funded benefits for aliens designated as refugee.’ They misrepresented facts (appellant’s immigration’s status, number of month to be paid…) and laws (MPP, articles, procedure to criticize administrative decision…) to refuse to force the LA County (a) to comply with Judge Tolentino’s decision or (b) to follow the formal appeal process to criticize it (petition at the Superior Court).
The context in which these letters were written (the compliance process) is critical because it determines the nature of actions they were performing (see AOB page 23-25) and the jurisdiction they had to render their decisions (again Judge Castello admitted that neither he nor the other officials had jurisdiction to change a decision outside the formal appeal process, see AOB page 20-21). Respondent’s imprecision and incorrect statements are therefore not innocent, it is trying to ‘hide’ a critical fact of the case, so the Court should pay even more attention to this special context in which the letters were written (compliance process) to take a fair decision.
Respondent also forgot to mention on page 2 that appellant believes that the judicial immunity does not apply also because defendants took their decisions outside of all jurisdiction. And respondent incorrectly writes on page 2 that appellant alleges the immunity for misrepresentation does not apply because ‘the allege misrepresentation …does not involve financial or commercial interest’; on AOB page 28, appellant mentioned the social services area and the fact that the misrepresentations involved ‘a risk of physical harm’ as reasons to deny the immunity! On this page 2, respondent also misrepresents the conclusions of the Superior Court that never stated that appellant ‘failed to plead a specific enactment imposing mandatory duty’, or that the misrepresentation ‘involved a financial interest’ (see AOB 9, CT 185-196)!
B Comment on respondent’s ‘standard of review’ and ‘statement of the case’ sections.
Respondent does not contradict the fact that the appropriate standard here is or should be ‘independent review’ (or De novo), but it mentions that the abuse of discretion standard applies to a denial of leave to amend which is not the case here. The issue of this appeal is not the denial of ‘leave to amend’, but the dismissal of the case based on improper interpretations of statutes and an incorrect evaluation of the duty to care as seen in AOB p. 9; so, there is or should be no doubt that the standard of review here is independent review or de novo (see AOB page 8). Respondent also lists as first event in its statement of the case the filing of the amended complaint, but it forgets that it had filed another demurrer before, and that it eventually used this amended complaint (that contained only 4 additional lines to respond to a bad faith critic on the first demurrer) to bring a new ground to have the case dismissed, the judicial immunity, which was, unfortunately, incorrectly used by the Superior Court see AOB. All together, respondent filed 4 demurrers on the same complaint which is not fair at all.
C Comment on respondent’s ‘Argument section I’ on the mandatory duty.
Respondent repeated its arguments that ‘appellant cites inapplicable statues and policy’, and failed ‘to specifically plead the particular enactment which creates a mandatory duty’, but did not discuss precisely appellant’s arguments or cases on these issues. Appellant will not repeat his explanations concerning the applicability of the criminal statutes, but simply refers the court to his brief on this issue (AOB page 15-17). Concerning the MPP articles, it is obvious that these MPP articles (and CC 1094.5) impose a mandatory duty on defendants and that defendants know it since again Judge Castello explained that neither he nor the other official can change a decision outside the formal appeal process. If he had had any ‘discretion’ to change the decision (as respondent pretends it), he would never have written this.
Respondent argues that the words ‘determine’ and ‘appropriate’ demonstrate that defendants had to apply their judgment and had a discretionary duty, and therefore that these MPP articles do not impose a mandatory duty, but this is not backed by any legal authority. On the contrary, the Court in Ramos v. County of Madera (1971) 4 Cal. 3d 685, 94 Cal. Rptr. 421, 484 P 2d 93 found on page 696 that ‘(12) public entities have, inter alia, a mandatory duty to obey legislatives enactment…’ in reference to the Welfare legislation; it agreed that ‘agents must exercise some power of judgment in determining whether an applicant meets the eligibility standard…, but that this judgment is limited’. In Scott also the Court agreed that ‘all acts a government employees is called upon to perform involve some degree of choice…’, but that it does not make the act discretionary necessarily. In fact, here the actions described in these articles fit perfectly the definition of ministerial actions (AOB p. 24).
The Supreme Court in Morris, I believe, wrote that the court must look at the enactment as a whole (see California Gov. Tort Practice book page 467), and here it is obvious that the MPP objective is to make sure that the poor get the benefits they are entitled to receive, and that the DSS is responsible to make sure the poor get their benefits (and not that the DSS can give the benefits at its discretion). As mentioned in AOB p. 13, article 22-000.11 ‘the State department is responsible (liable) for the overall administration of the hearing process and the conduct of the each hearing’, so the DSS has for mandatory duty to make sure that the parties comply with decisions or follow the formal appeal process to criticize them (rehearing or petition at the superior court, CC1094.5 see AOB page 13). In this case, it obviously did not make it work properly since it did not encourage the LA County to follow the formal appeal procedure or to comply with the decision, and the resulting injury was easily forseeable.
Finally, unlike respondent writes it on page 9 ‘The three letters…demonstrates the state employee acted in accordance with articles 22.078.4 and 22.078.6 (correction from 22.078.4) in that they determined that appellant was not eligible based on his refugee status.’, Mendoza and Castello did not act according to 22.078.6 as written in AOB on page 24 bottom of page and 25 top of page. The MPP imposes a mandatory duty on the DSS, and GC 815.6 makes the DSS liable for the wrongdoings described in the complaint.
D Comment on respondent’s ‘Argument section II’ on the quasi-judicial immunity.
Here again respondent repeats that defendants were entitled to the quasi-judicial immunity and ignores appellant’s arguments concerning the critical facts, the facts that (a) their actions were ministerial in nature (see AOB p. 23-25), instead of judicial in nature, and that (b) they took there decision outside of all jurisdiction since they changed Judge Tolentino outside the formal appeal process (see AOB page 20-21). As mentioned above, Judge Tolentino had already ruled that appellant is refugee entitled to 8 months of refugee cash benefit and housing assistance, and the rehearing unit, defendant Campbell, had ruled that his decision was conformed to the law. Since defendant Castello recognized that they had no jurisdiction to change Judge Tolentino’s decision outside the formal appeal process (see AOB page 21 at the top of the page), and since respondent do not contradict appellant arguments, the Superior Court conclusion that the change of the decision was a ‘debatable jurisdictional issue’ is completely wrong (AOB p. 20), and defendants are not entitled to the quasi-judicial immunity.
E Comment on respondent’s ‘Argument section III’ on the immunity for misrepresentation.
Here again, respondent ignores or does not contradict appellant arguments concerning the meaning of ‘interference with financial interest’ of plaintiff given in AOB page 31-32 (with a reference to US v. Neustadt), and instead it differentiates ‘direct’ ‘interference with financial interest’ (supposedly like in Masters and in appellant cases) from ‘indirect’ ‘interference with financial interest’ (supposedly like in Michael J. BY case ). But, no such difference is made in the various cases used; on the contrary, the Court in Connelly found that despite the ‘direct’ interference with the plaintiff financial interest or business interest, the immunity should not hold (AOB p. 31). And, Michael J. By stresses that it is the context in which the misrepresentation took place not the fact that there is a financial loss (either direct or indirect) see AOB on page 29 and 30.
Respondent agrees that the ‘Jopson court’ clarified Johnson holding by writing that the California Supreme Court had differentiated ‘interference with financial interest’ from ‘social service area’ (see respondent brief page 18), and that in Michael J. By the 2nd District Appellate Court concluded that the immunity did not apply in the ‘social service area’, but it pretends that this social services area or context is not a general term, and that this context is limited ‘social service arena such as foster care or adoption’ see respondent brief page 18. This is not true, of course, neither the Jopson Court nor Michael J. By Court makes any restriction on the term social service area, since Michael J. By case discussion simply points out that this area is ‘designed to serve the interest of society’, and the Jopson Court differentiates clearly the two contexts (interference with the financial interest and social service context) without making any restriction. None of respondent arguments justify that this Court (a) changes the Michael j. By court conclusion denying the immunity in the social service area and (b) ignores the fact that the misrepresentations involved a risk of physical harm, and therefore the immunity for misrepresentation should be denied!
F General comment and conclusions.
In short, the California Justice Department and Respondent are asking you to: (a) forget about the fact that Judge Tolentino had already ruled that appellant is a refugee entitled to 8 months of refugee benefits and housing assistance and that the rehearing had confirmed his decision; (b) forget about the importance procedure in the justice arena, about the necessity to follow a formal appeal process to have justice decisions changed, and about the res juridicata principle; (c) forget about the obligation to comply with justice decisions; and (d) forget about the fact that the US constitution gives the responsibility to vote the laws to politicians [and therefore gives them (not to DSS judge) the responsibility to decide which groups of people are entitled to minimum social benefits necessary to survive]; and instead: give (1) (counties) social workers and DSS judges and officials the possibility to lie (or the immunity for lying) to steal the poor the basic social necessary to survive; give them (2) the possibility to change any administrative law judge decision outside the formal process when they feel like it to hurt or even kill the poor; and give (3) the DSS and the various counties DPSS the charity or non profit organization status so that they can give out the public money to the poor at their discretion only!
These are not honest requests (especially from the CA Dep. of Justice). If any other judge of the Appeal Court or of the Superior Court could change the decisions you take (just two months after you took them) and the parties did not have to petition the Supreme Court to reverse your decisions or did not have to comply with your decisions, it would be chaos. If the dangerous serial killer you sentence to 50 years in jail could continue to walk around and kill people, instead of being forced to go to jail, there would not be any justice. It would diminish the value of your work or simply makes it completely useless. Similarly, if the counties DPSS and the DSS can give the social benefits at their discretion, why should the people be forced to pay their taxes etc... ? DSS civil servants have a responsibility toward the people and toward the poor, and they cannot just lie or refuse to follow the procedures to hurt the poor because they are extremely vulnerable and cannot defend themselves in Court.
The MPP (and CC 1094.5) impose a mandatory duty on the DSS, the quasi-judicial immunity is limited to judicial action (in the specific context of a formal hearing), but does not apply to ministerial acts or acts taken outside of all jurisdiction, and the immunity for misrepresentation must not apply in the social services area designed to serve the interest of the community or when the misrepresentation involves a risk of physical harm like in this case. In Ramos, the court stresses on page 692: ‘(5) we must begin with the well-settled notion that in governmental tort case “the rule is liability, immunity the exception!’; the law does not and must not allow civil servants to deliberately hurt the poor by stealing them their social benefits.
In conclusion, respondent imprecise brief (and even deliberate incorrect statements) did not contradict the critical arguments presented by appellant, and therefore does not contradict that the Superior Court made 3 grave and very prejudicial errors on these 3 legal issues (addressed in appellant brief), maintained appellant in extremely difficult living conditions despite his health problems, and incorrectly dismissed the case. Appellant therefore confirms his initial conclusions and respectfully asks this Court not only to reverse the decision of dismissal, to vacate the order of dismissal, and to remand the case for further proceeding, but also to confirm the conclusions presented in his briefs on these 3 different important issues.
Los Angeles, November 2006
Certificate of compliance pursuant to Fed. R. App. 32 (a) (7) (C), Circuit rule, rule 32-1 and Cal. rule 14 for case no: B 191 039
Pursuant to Fed. R. App. O. 32 (a) (7) (C) and Ninth circuit Rule 32-1, I certify that the attached brief is proportionally spaced, has a type face of 13 points and contains 3 125 words (374 lines).
Dated November , 2006
423 E 7th street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
Court of Appeal of the State of California
Second Appellate District
Proof of Service
I, the undersigned, certify and declare that, on November 2006, I served a true copy of Appellant’s Reply Brief by hand delivery to:
Mrs. Jung D. Shin, Deputy Attorney General, attorney for the State of California Department of Social Services (defendant), 300 South Spring, Suite 5212, Los Angeles, CA 90013. (By hand delivery 1 copy).
Judge Morris Jones, Superior Court, 111 N. Hill street, 90012 Los Angeles CA 90014. (By hand delivery 1 copy).
California Supreme Court, 300 South Spring, Los Angeles, CA 90013. (By hand delivery 4 copies)
I hereby certify under the penalty of perjury that the foregoing is true and correct. I also certify that I don’t know anybody who can do the service for me, and that I do not have any money to pay someone to do the service for me.