Legal word of the day: Prolix

By Michael Reiter, Attorney at Law

Sometimes, you need a five dollar word instead of a five cent word.  The word is “prolix.”  Prolixity, according to Black’s Law Dictionary, Sixth Edition is the “unnecessary and superfluous statement of facts in pleading or in evidence.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court from a sovereign citizen, what I called a constitutionalists in the past.  Here is a restatement of the Complaint, without the actual prolixity:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

I believe I attacked the complaint using either this case, or a similar case, which taught me the word prolixity in context of F.R.C.P. Rule 8:

A heightened pleading standard is not an invitation to disregard’s Rule 8‘s requirement of simplicity, directness, and clarity. The “particularity” requirement of a heightened pleading standard, requiring “nonconclusory allegations containing evidence of unlawful intent,” as opposed to “bare allegations of improper purpose,” has among its purposes the avoidance of unnecessary discovery. Branch, 937 F.2d at 1386. If the pleading contains prolix evidentiary averments, largely irrelevant or of slight relevance, rather than clear and concise averments stating which defendants are liable to plaintiffs for which wrongs, based on the evidence, then this purpose is defeated. Only by months or years of discovery and motions can each defendant find out what he is being sued for. The expense and burden of such litigation promotes settlements based on the anticipated litigation expense rather than protecting immunity from suit. Judgment and discretion must be applied by district judges to determine when a pleading subject to a heightened pleading standard has violated Rule 8, but there is nothing unusual about a standard requiring judges to exercise judgment and discretion. We have affirmed dismissal with prejudice for failure to obey a court order to file a short and plain statement of the claim as required by Rule 8, even where the heightened standard of pleading under Rule 9 applied. Schmidt v. Herrmann, 614 F.2d at 1223-24. In Schmidt, as in the case at bar, the very prolixity of the complaint made it difficult to determine just what circumstances were supposed to have given rise to the various causes of action.  McHenry v. Renne (9th Cir. 1996) 84 F.3d 1172, 1178.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

HIPPA Creates No Private Right of Action for Violation of the Privacy Rule

By Michael Reiter, Attorney at Law

When I was Assistant City Attorney for the City of Redlands, I had the unenviable task of making sense of the HIPAA Privacy Rule, which is found at 45 CFR Part 160 and Subparts A and E of Part 164. One thing that should be mentioned is this:

HIPAA itself does not provide for a private right of action, see 65 Fed.Reg. 82601 (Dec. 28, 2000)(“Under HIPAA, individuals do not have a right to court action.”)   Webb v. Smart Document Solutions, LLC (9th Cir. 2007) 499 F.3d. 1078, 1082.

There may be some relief in state unfair competition law, but not in federal law, and not as the basis for a 42 U.S.C. section 1983 case.  Therefore, it may be difficult to find an attorney, outside of a class action, to take a case if someone violates the HIPAA privacy rule.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

Don’t Believe Extrajudicial Nonsense In Fighting Code Enforcement: “Constitutionalist” Extremism

By Michael Reiter, Attorney at Law

I represent individuals and corporations in code enforcement disputes with local cities and counties.  Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010.  In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals.  These individuals believed what they read in newsletters, and later, on the internet.  Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum.  One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.”  “Sovereign Citizens A Growing Domestic Threat to Law Enforcement, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct.  Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances.  “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court.  Here are some issues that I dealt with, in pertinent part from that Complaint:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  California Constitution Art. XI, § 7.  Complaint, Pg. 10, Para. 18.  State law specifically does not preempt the City’s nuisance laws.  Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances.  The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California.  All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848.  Lux v. Haggin (1886) 69 Cal. 255, 335.  “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).”  Witkin, Summary of California Law (9 ed.) Real Property § 4.  Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

  • An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
  • The oaths taken by officer holders are invalid for some reason.
  • For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
  • The 14th Amendment is invalid, therefore, the law doesn’t apply to them.  (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
  • Misuse of the Uniform Commercial Code.
  • The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
  • A misconception about the term “common law.”
  • The Gold Standard, the Federal Reserve, Corporations, and capitalization,  and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted.  There is no online record that he ever paid.  Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers.  Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree.  However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects.  Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag.  The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

Fictitious defendants in Federal U.S. District Court for the Central District of California

By Michael Reiter, Attorney at Law

 

California Code of Civil Procedure allows fictitious defendants, that is, naming unknown defendants, which you will commonly see in a caption (such as “Doe 1″ or “Does 1-50, inclusive”).  See California Code of Civil Procedure § 474.

The use of Doe (fictitiously named defendants) in federal questions cases is permissible when the complaint alleges why the defendant’s real name was not known. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390, fn. 2, 91 S. Ct. 1999, 2001, 29 L. Ed. 2d 619 (1971). Central District of California Local Rules Rule 19-1 limits the Complaint to no more than ten Doe or fictitiously named parties.

Though there is an easy way to add fictitiously named defendants in California Superior Court, the way to do it in U.S. District the Central District of California is by Federal Rule of Civil Procedure Rule 15(a)(2), and Rule 21:

Federal Rule of Civil Procedure Rule 15(a)(2) reads:

          (a) Amendments Before Trial.

. . .

(2) Other Amendments. In all other cases, a party may amend its pleading

only with the opposing party’s written consent or the court’s leave. The

court should freely give leave when justice so requires. Fed. R. Civ. P.

15(a)(2)

Federal Rule of Civil Procedure Rule 21 provides, in pertinent part, that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. . . .” Fed. R. Civ. P. 21.

“Fed.R.Civ.P. 15 places leave to amend, after a brief period in which a party may amend as of right, within the sound discretion of the trial court. [Citations omitted]. In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities. [Citations omitted]. Accordingly, Rule 15’s policy of favoring amendments to pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given’.”  Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962).

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

 

 

LAPD Legal Payouts By the City of Los Angeles

By Michael Reiter, Attorney at Law

On January 22, 2012, the Los Angeles Times published a spreadsheet showing the amounts paid by (or collected in some rare cases) by the City of Los Angeles related to the Los Angeles Police Department (LAPD).  The numbers are fascinating, and no doubt required a great deal of clerical work either by the employees of the Los Angeles Times, or by the employees of the City of Los Angeles.  This is a good illustration of the benefits of the California Public Records Act.

The cases run the gamut from minor traffic accidents to wrongful death suits to disability payouts to Federal civil rights cases, and even dangerous condition of public property.  I have a perspective on this data because I am a plaintiff’s attorney, both in the personal injury and the 42 U.S.C. Section 1983 civil rights arenas, and because I defended cities and police officers for about ten years, first as a Deputy City Attorney and then as as an Assistant City Attorney.

The information regarding the car accidents is not surprising.  In an accompanying article, reporter Joel Rubin writes:

The city has paid nearly $24 million in settlements or verdicts in about 400 LAPD traffic-related lawsuits over the last nine years and must contend with dozens more cases that remain unresolved, city records show. In all but a few of the closed cases, city officials opted to pay a negotiated settlement instead of taking their chances at a trial — a strong indication that the officers were in the wrong.

However, other interesting information can be gleaned from the data: the City of Los Angeles does not try as many cases as you would think for a City of that size or a City Attorney’s Office of that size.  I counted only 25 trials out of 921 cases with a listed disposition.   On the other hand, there were not that many outright $0 verdicts or settlements, 16 by my count.

Thirteen of those are what I would characterize as alleged Federal Civil Rights allegations: 4 were listed as Dismissal-Court, which I would take to mean a Federal Rule of Civil Procedure Rule 12(b)(6) dismissal for failure to state a claim upon which relief can be granted.    There are 4 voluntary dismissals, though it is not clear if that means that there was a dismissal with a waiver of costs and a release, or whether the cases listed as Settlement (three cases).  Only one of the civil rights cases was listed as won on Summary Judgment.  One case does not give information about how the City of Los Angeles was not liable.

Federal Civil Rights cases are very fact dependent, so looking at the raw statistics without more information (the alleged conduct, the case number, stage of disposition), for example.

This is good investigative journalism by the Los Angeles Times.

 

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address : 1255 W. Colton Ave., Suite 104
Redlands, CA 92374
Telephone: (909) 708-6055

How To Fill Out Central District of California Form CV-01A – Summons

By Michael Reiter, Attorney at Law

Litigation in the United States District Court, Central District of California requires litigants and their attorneys to adhere to the Federal Rules of Civil Procedure, the Local Rules and General Orders, as well as unwritten rules.  While there are a number of reasons to be in Federal Court (federal question, diversity), most of my practice in the Central District of California relates to violations of Federal civil rights under 42 United States Code section 1983, though I have appeared in other cases as well.  Here are the rules to follow for completing the form Summons.

Federal Rule of Civil Procedure Rule 4 reads:

Rule 4. Summons

(a) Contents; Amendments.

(1) Contents.

A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff’s attorney or — if unrepresented — of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court’s seal.

(2) Amendments.

The court may permit a summons to be amended.

(b) Issuance.

On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons — or a copy of a summons that is addressed to multiple defendants — must be issued for each defendant to be served.

Statement of Interested Parties

As of the date of this writing, the Local Rules say:

The summons shall be prepared by the attorney upon forms supplied by the Clerk.  Central District of California Local Rule L.R. 4-1.

United States District Court Central District of California Form CV-01A is dated October 2011.  A fillable (but not saveable) PDF is available at the Central District of California’s website under “Forms.”

First, fill out the section that says “Name & Address” in the upper left hand corner. Local Rule 11-3.8 states:

(a) The name, California bar number, office address (or residence address if no office is maintained), the telephone and facsimile numbers, and the e-mail address of the attorney or a party appearing pro se presenting the document shall be placed commencing with line 1 at the left margin. The e-mail address shall be placed immediately beneath the name of the attorney. Immediately beneath, the party on whose behalf the document is presented shall be identified. All this information shall be single spaced. When a document is presented, the information set forth in this paragraph shall be supplied for each attorney or party appearing pro se who joins in the presentation of that document.

Next, fill out the caption.  The caption on the Summons should read exactly as it does on the Complaint.  The Deputy Clerk will check the Summons against the Complaint.  What happens if the room on the mandatory form is not long enough to put in all the information found in the Complaint?  Add an Attachment, on pleading paper and otherwise compliant with the local rules showing the additional information and affix it to the original Summons and the copies of the Summons.

Next, if the Complaint has already been filed without a Summons issuing, put the case number under the heading “CASE NUMBER.”

Next, add the days of service as appropriate, check the appropriate box for complaint, amended complaint, counterclaim, or cross claim, and the name and address of the attorney or pro se litigant.  The Clerk will date the Summons, sign and affix the seal to the original, and stamp the copies.

As an initiating document, the summons must be issued by the Clerk (either in person or by express delivery/mailing with a self-addressed stamped return envelope.)  Pursuant to General Order 10-07, you are required to email an issued copy of the summons in PDF format “by close of business the following day,” and pursuant to Local Rule 3.2 “within 24 hours.”  Choose the shorter of the two.

The Summons will not be filed at the time of issuance, so there is no need for blue backing and hole punching, as required by L.R. 11.5.  However, there should be an original and as many copies as there are defendants.

A: 1255 W. Colton Ave. Suite 104
      Redlands, CA 92374
T: (909) 708-6055

W: http://michaelreiterlaw.com

How To Write Compelling Legal Prose: A Clever Paragraph With Impact

By Michael Reiter, Attorney at Law

Here is a paragraph I found while doing some research on the Internet.  It is from the Complaint, Page 14, Lines 1-4,  Rodriguez et al. v. Burbank Police Department et al., Los Angeles Superior Court Case BC414602, Filed May 28, 2009.

It should be noted that, as of the date of the filing of the within complaint, no African-American employee in the entire history of the Burbank PD has ever been promoted above the title of “police officer.”  No African-American detectives. No African-American sergeants. No African-American Lieutenants or Captains.  Never.”

Usually, sentence fragments are to be avoided in formal writing.  But this simple paragraph forcefully delivers one of the themes of the case.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

When is a Government Claim (formerly Tort Claims) required in California?

By Michael Reiter, Attorney at Law

When I became an attorney in December 1998, government claims were referred to as “tort claims”.  That all changed with these words by the California Supreme Court  in late 2007:

We also adopt the practice of referring to the claims statutes as the “Government Claims Act,” to avoid the confusion engendered by the informal short title “Tort Claims Act.”   City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734.

The reason was the change is that the Act involves things other than torts, including contract actions.  When in doubt, file a timely claim with all the required information.

California Government Code section 900 et seq. governs the claim requirements against California public entities (the State of California and local public entities).  This is an overview of the requirement for a government claim, and is not an exhaustive look at the process. Seek appropriate legal assistance for your particular circumstance.  I will explore some areas in depth at later times.

Certain causes of action do not require a government claim to be presented   The following do not require a government claim to be presented to the public entity as a prerequisite to a civil action.  False Claims Act (qui tam) do not require a Government Claim.  Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1213 (as modified on denial of rehearing).  Federal civil rights actions under the Civil Rights Act do not require a government claim.  Williams v. Horvath (1976) 16 Cal.3d 834, 842.   Government Code section 905 exempts claims under the Revenue and Taxation Code (subsection a); claims related to a “filing of a lien, statement of claim, or stop notice is required under law relating to liens of mechanics, laborers , or charges related thereto” (subsection b); claims  “by public employees for fees, salaries, wages, mileage or other expenses and allowances” (subsection c); workers’ compensation (subsection d); public assistance (subsection e); public retirement or pensions (subsection f); principal or interest on warrants, bonds, notes, or other indebtedness (subsection g); claims related to special assessments as a result of a lien (subsection h); claims by the state or by a state department or by a local public agency or judicial branch entity (though the public entity can require a claim) (subsection i); unemployment insurance (subsection j);  recovery of penalties and forfeitures under Labor Code section 1720 et seq. (subsection k); claims regarding the Pedestrian Mall Law of 1960 (subsection l); claims for the recovery of Civil Code section 340.1 damages regarding childhood sexual abuse regarding conduct occurring on or after January 1, 2009 (subsection m); claims for the recovery of money pursuant to Government Code section 26680 pursuant to Civil Code section 701.820 (subsection n).  Government Code section 905.1 specifically exempts inverse condemnation cases from the presentment requirement of Government Code section 905, except that the entity should process the claim if presented.

A big warning:  local agencies are allowed to adopt their own claims requirements pursuant to Government Code 935 with certain preemption by state law.   For example, the City of San Bernardino’s claim ordinance is found at Chapter 3.16 of the San Bernardino Municipal Code. The City of Highland’s procedures are found at Chapter 3.08 of the Highland Municipal Code.  The City of Riverside’s claim ordinance is found at Chapter 1.05 of the Riverside Municipal Code.  Ontario’s is found at Title 3, Chapter 2 of the Ontario Municipal Code.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

How Not to Handle Government Claims – Good Advice For California Public Entities

By Michael Reiter, Attorney at Law

Here is an anecdote of what not to do as a California Public entity.  The particular entity shall remain anonymous, because as a former government attorney, I am embarrassed for them.  It is a Joint Powers Authority within San Bernardino County.  This particular entity is not involved in a lot of litigation, so I understand why the front-line staff was not trained to deal with the situation.

Before you file a lawsuit against California public entities (with some exceptions, such as a 42 United States Code section 1983 case, or a constitutional tort like inverse condemnation), you are required to file a government claim (which used to be known as a tort claim).  The procedure is found in Government Code section 900 et seq.

Cities and counties get sued enough that you will easily be able to get a claim form and sometimes even instructions to file from them.  Many cities have the claim form online. The best practice is for cities and counties have claim forms that are fillable PDFs.

This particular entity did not have a claim form.  I had called to confirm this fact before hand.  I had to explain to them what I wanted to do, and they finally told me that they did not have such a thing.  That is not a problem, the requirements are found in the Government Code.

I went into the agency’s public entrance.   I told the front counter employee that I was there to file  government claims.  The counter employee did not understand.  The counter employee said  that it should have a purple stamp from the court.  The counter employee then said that  I told the counter employee that the claim had to be filed first (the claim is a prerequisite for suit).  The counter employee then went to find a supervisor.  The counter employee came back and told me that she had been instructed to return the paperwork to me and say goodbye.  I asked politely if there was anyone else I could speak to.  The supervisor came out.  I explained the process, and how the Government Code required that the claim be presented.  I told the supervisor and the counter employee, that they should keep the original of each claim, stamp it in, and give me back a stamped, conformed copy.  I told them that they should send it to their attorneys at a well-known local and statewide municipal law firm.  To their credit, the front-line staff gave me my conformed copies.  The problem was not with the front-line staff, but with higher level staff that has not trained the front-line staff.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

 

Filing a 42 United States Code section 1983 Case alleging police misconduct: California Superior Court or United States District Court (Federal)

By Michael Reiter, Attorney at Law

 

Can you file a 42 United States Code section1983 case alleging police misconduct in a California Superior Court?  Yes, but it is in general a poor idea for one reason:  peace officer employment records are protected by the Pitchess Motion process under California law.  As a Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands, I handled both defense of Pitchess Motions and Federal Civil Rights cases, so I have some insight into the process.

However, the Federal Courts do recognize some limits to discovery of peace officer personnel records.  For example, in this slip opinion from the Southern District of California:

“Federal Rule of Civil Procedure 26(c) provides that a court may limit discovery to protect from annoyance, embarrassment, oppression, or undue burden or expense. Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Government personnel files are considered official information. See, e.g., Zaustinsky v. University of Cal., 96 F.R.D. 622, 625 (N.D.Cal.1983), aff’d, 782 F.2d 1055 (9th Cir.1985). In determining what level of protection to afford the official information privilege, courts balance the interests of the party seeking discovery against the interests of the governmental entity asserting the privilege. See Kelly v. City of San Jose, 114 F.R.D., 653, 660 (N.D.Cal.1987). The party requesting the information must describe how the information sought is “reasonably calculated to lead to discovery of admissible evidence, identifying interests … that would be harmed if the material were not disclosed, and specifying how that harm would occur and how extensive it would be.” Id. at 671. The courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir.1990); Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384-85 (5th Cir.1980); Zaustinsky, 96 F.R.D. at 625.”  Snowten v. City of San Diego (2010)  2010 WL 2998846, *2.

In lieu of an in-camera hearing, the parties may agree to a stipulated protective order.  Defendants may be willing to do so to avoid running up plaintiff’s attorneys’ fees, and save their clients fees, as well.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

 

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