Below are four of the Notices of Intention to Circulate A Recall Petition, or at least unexecuted and undated versions.  The originals were in PDF format which were printed with the home addresses of the petition signers were crudely redacted using a Sharpie Magnum Permanent Marker, and rescanned into PDF.

City Attorney James F. Penman

The reasons for the recall are listed by Scott Beard, the proponent, Wendy McCammack’s appointment to the City of San Bernardino Planning Commission, Rialto-based developer, and Seventh Ward resident:

The grounds for the recall are as follows: Mr. Penman is the duly elected City Attorney, and as such is accountable for the actions of that office and of his subordinates. Mr. Penman has been derelict in his official duties by failing to properly enforce the law regarding personal use of public property by members of the Common Council. In addition, Mr. Penman’s office’s selective enforcement of City codes and his failure to timely update and codify city codes, ordinances, and other matters lawfully passed by the City Council has created confusion and insecurity in the City’s residents and businesses regarding accuracy of the City’s published law.

Council Member Virginia Marquez, First Ward

The reasons listed for the recall in the Notice of Intention are listed by the proponent, Christian Fernando Flores (who was reported in the Sun as a student at California State University, San Bernardino):

The grounds for the recall are as follows: Council Member Marquez was elected to office
in November of 2009 and has since that time has failed to protect the health, safety, and welfare
of the residents of the City of San Bernardino and demonstrated dereliction to the duties of her
elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible
program leading to the misuse of the City’s General Fund. Council Member Marquez’s actions
and failures to act, have propelled the City of San Bernardino into financial crisis, and have led
to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City. The City
of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of
the bankruptcy and its proceedings.

Further, Council Member Marquez has violated the public trust by repeatedly failing to
reach consensus with the other members of the San Bernardino City Council on basic issues of
City finances, and ignored advice of the City’s Executive Staff for the previous two years
regarding financial concerns. Her actions have led to massive reductions in City services and
police and fire personnel, causing an increase in crime rates, businesses leaving the City, and
contributed to overall blight within the City.

Council Member Fred Shorret:

The proponent of the recall against Fred Shorett, 4th Ward Council Member, Stephen T. Dawson, who is the chairperson of the United  Transportation Union, states:

The grounds for the recall are as follows: Council Member Shorett was elected to office in March of 2009 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible program leading to the misuse of the City’s General Fund. Council Member Shorett’s actions and failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Council Member Shorett has violated the public trust by repeatedly failing to reach consensus with the other members of the San Bernardino City Council on basic issues of City finances which would allow the City of San Bernardino to emerge from the bankruptcy proceedings and begin revival of its economy. The City of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of the bankruptcy and its proceedings.

Mayor Patrick J. Morris:

Scott Beard, also the proponent of the recall against City Attorney James F. Penman, gives these reasons:

The grounds for the recall are as follows: Mayor Morris was elected to office in February of 2006 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by failing to veto fiscally irresponsible votes and fiscally irresponsible programs leading to the misuse of the City’s General Fund. Mayor Morris’s [sic] failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Mayor Morris has violated the public trust by repeatedly failing to facilitate consensus with the members of the San Bernardino City Council on basic issues of City finances, and ignored advice of the City’s Executive Staff for the previous two years regarding financial concerns. His action and inaction have led to massive reductions in City services and police and fire personnel, causing an increase in crime rates, businesses leaving the City, and contributed to overall blight within the City.

The original PDFs, which are not the embedded redacted versions you see here, have some metadata that explains a little about the origin of the PDFs that were obtained. The Notice of Intent  involving Mayor Patrick J. Morris was created on April 28, 2013 at 10:04:50 PM, with the application being Microsoft Word 2010, with “Michael” listed as the author.  The Notice of Intent to Virginia Marquez  was titled C:\My Files000 — SanBernardinoMatter\NOI.2013.1stWard(Marquez).wpd, also authored by “Michael.”  It was created on April 28, 2013 at 2:19:17 PM.  The original file was on WordPerfect (as you can see by the extension), but the PDF was created by Acrobat Distiller 9.0.0. The Fred Shorret document was created by Microsoft Word 2010, also authored by “Michael.”  It was created on April 28, 2013 at 3:40:59.  The City Attorney James F. Penman document was also on Word 2010, on April 28, 2013, at 10:00:13.

What does this metadata mean?  That whoever created the PDF (but not necessarily the author of the petitions), was named Michael, and that at least one of the documents was created on WordPerfect.  WordPerfect is, or was, largely used by attorneys. No conclusions can be drawn from this metadata.  The Michael may refer to Michael McKinney, the Orange County-based publicist for the recall proponents.  It could be someone else entirely.

Unfortunately, the petitions to recall Second Ward Council Member Robert Jenkins, Third Ward Council Member John Valdivia, Fifth Ward Council Member Chas Kelley, Sixth Ward Council Member and Mayoral Candidate Rikke Van Johnson and Seventh Ward Council Member Wendy McCammack were unavailable.

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.

While waiting in the Spring Street Courthouse in Los Angeles last week, I was browsing the wall outside the clerk’s office and found this notice:

Notice is hereby given that effective May 1, 2013, a new administrative fee of $50 will be added to the current $350 filing fee for a Civil Action, Suit or Proceeding, for a total filing fee of $400.  This new administrative fee is part of the “District Court Miscellaneous Fee Schedule,” established by the Judicial Conference of the United States, pursuant to 28 U.S.C. § 1914.  This fee does not apply to persons granted in forma pauperis status under 28 U.S.C. § 1915 or to applications for writs of habeas corpus.

Still cheaper, if you have federal question or diversity jurisdiction, than Superior Court, and you are likely to get a trial date sooner, too.

The current Charter of the City of San Bernardino, Article VII is entitled “Initiative, Referendum and Recall.”  Section 122 of the Charter reads (with annotations):

Section 122. The Recall. Proceedings may be commenced for recall of the

holder of any elective office of this City and the election of a successor of the

holder sought to be removed by the service, filing and publication of a notice of

intention to circulate a recall petition. Such proceedings may not be commenced

against the holder of an office unless, at the time of commencement, the holder

has held office for at least ninety days and no recall petition has been filed against

such holder within the preceding six months. A petition demanding the recall of the

officer sought to be recalled shall be submitted to the City Clerk. The petition shall

be signed by not less than fifteen percent (15%) of the voters of the City, or in the

case of a City Council Member elected by ward twenty-five percent (25%) of the

voters of that ward, according to the County Clerk’s last official report of

registration to the Secretary of State. No signature may be affixed to the petition

until the proponents have served, filed and published a notice of intention to

circulate a recall petition, containing the name of the officer sought to be recalled

and the title of his/her office, a statement in not more than 500 words of the

grounds on which the recall is sought, and the name and address of at least one,

but not more than five proponents. The notice of intention shall be served,

personally or by certified mail, on the officer sought to be recalled, and a copy

thereof with a certificate of the time and manner of service shall be filed with the

clerk of the legislative body. Within seven (7) days after the filing of the notice of

intention, the officer sought to be recalled may file with the City Clerk an answer in

not more than 500 words to the statement of the proponents and if an answer is

filed, shall serve a copy thereof, personally or by certified mail, on one of the

proponents named in the notice of intention. At the time the proponents publish

the notice and statement referred to above, the officer sought to be recalled may

have the answer published at his/her expense. If the answer is to be published the

officer shall file with the City Clerk at the time the answer is filed a statement

declaring his/her intent that the answer be published. The statement and answer

are intended solely for the information of the voters and no insufficiency in the form

or substance thereof shall affect the validity of the election or proceedings. The

notice and statement as referred to above, and the answer, if it is to be published

shall be published at least once in a newspaper of general circulation, as described

in Sections 6000 to 6066 of the Government Code, adjudicated as such.

Seven (7) days after the publication of the notice, statement and answer, if it

is to be published, the recall petition may be circulated and signed. The petition

shall bear a copy of the notice of intention, statement and answer, if any. If the

officer has not answered, the petition shall so state. Signatures shall be secured

and the petition filed within ninety (90) days from the filing of the notice of intention.

If such petition is not filed within the time permitted by this section, the same shall

be void for all purposes. The signatures to the petition need not all be appended to

one paper; but each signer shall add to his/her signature his/her place of

residence, giving the street and such other identification as may be required by the

registration law. One of the signers of each such paper shall make oath before an

officer qualified to administer oaths, that the statements therein made are true, and

that each signature to the paper appended, is the genuine signature of the person

whose name purports to be thereunto subscribed. Within thirty (30) days after the

date of filing such petition the City Clerk shall examine and ascertain whether or

not said petition is signed by the requisite number of qualified electors and, if

necessary, the Council shall allow extra help for that purpose, and the City Clerk

shall attach to said petition a certificate showing the result of said examination. If,

by the City Clerk’s certificate, the number of signatures on the petition is shown to

be insufficient, it shall be returned forthwith by the Clerk to the filer(s) thereof who

shall have an additional thirty (30) days from the date the petition is returned to

them by the Clerk to obtain the required number of signatures. The City Clerk shall,

within thirty (30) days after such additional thirty (30) day period to obtain

additional signatures, make like examination of said petition, and, if his/her

certificate shall show the same to be insufficient it shall be void for all purposes. If

the petition shall be found to be sufficient, the City Clerk shall submit the same to

the Council without delay and the Council shall thereupon order and fix a date for

holding said election, not less than fifty (50) days, nor more than seventy (70) days

from the date of the City Clerk’s certificate to the Council that a sufficient petition is

filed.

The ballots used when voting upon said proposed recall shall contain the

words “shall (title of office and the name of the person against whom the recall is

filed) be recalled?” and the words “yes” and “no.”

The Council and the City Clerk shall make, or cause to be made, publication

of notice and all arrangements for conducting, returning and declaring the results

of such election in the same manner as other City elections.

Qualified candidates to succeed the person against whom the recall is filed,

shall be listed on the ballot, except that the incumbent shall not be eligible to

succeed himself/herself in any such recall election.

In any such removal election, if a majority of the votes cast is for “yes” on

the question of whether or not the incumbent should be recalled, the candidate

receiving the highest number of votes shall be declared elected. The incumbent

shall thereupon be deemed removed from the office upon qualification of his/her

successor. In case the party who received the highest number of votes should fail

to qualify within ten (10) days after receiving notification of election, the office shall

be deemed vacant. The successor of any officer so removed shall hold office

during the unexpired term of his/her predecessor. (Effective March 16, 2005)

Any elected official in the City of San Bernardino can be recalled using this procedure.  The limitations are stated above in which the office holder must be in office at least 90 days, and no recall petition has been filed against the office holder in the preceding six months.  The elected officials of the City of San Bernardino are the Mayor, the seven members of the Common Council, the City Clerk, the City Treasurer, and the City Attorney.

The Municipal Code further gives the procedure for recall elections as follows:

2.56.160 Recall elections.

A recall election to remove an elected officer pursuant to Charter Section

122 shall be ordered, held and conducted and the result thereof made known and

declared in the same manner provided in this chapter for municipal primary and

general elections except as follows:

A. Time for Obtaining Signatures. Nomination papers shall be issued and

verification deputies appointed to obtain signatures to nomination papers of

any candidate at any time not earlier than the thirty-fifth day nor later than

five p.m. on the twenty-ninth day before the recall election.

B. Date filed with City Clerk. All nomination papers shall be filed with the City

Clerk not later than five p.m. on the twenty-ninth day before the recall

election.

C. Not earlier than the thirty-fifth day, nor later than the tenth day before a recall

election, the City Clerk shall publish a notice of the election at least once in

one or more newspapers published and circulated in the City. The notice

shall be headed “Notice of Election,” and shall contain a statement of:

1. The time of the election;

2. The offices to be filled, specifying full term or short term, as the case

may be;

3. The hours the polls will be open.

D. Absentee Ballots. Not earlier than the twenty-sixth day, nor later than the

seventh day before a recall election, any voter entitled to vote by absent

voter ballot as provided in Elections Code Section 14620 [See now §3003],

may file with the City Clerk either in person or by mail, his written application

for an absent voter’s ballot. The application shall be signed by the applicant,

shall show his place of residence, and shall make clear to the City Clerk the

applicant’s right to a ballot.

Applications received by the City Clerk hereunder on or after the

fortieth day but prior to the twenty-sixth day before election shall not be

returned to the sender, but shall be held by the City Clerk and processed by

him following the twenty-sixth day prior to election in the same manner as

if received at that time.

(Ord. 3601 (part), 1976; Ord. 2048 §10, 1954.

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.

When I was a teenager, I attended a program in Washington D.C. in the law.  Though I had wanted to be an attorney for about seven years at that point, I had actually applied to be in a program regarding national politics, but that was full, so I went to the legal program instead.

The program was very interesting.  We visited a juvenile correction facility, we went to the local District of Columbia courts, we visited the National Rifle Association and the American Civil Liberties Union, and though I cannot remember exactly because I’ve been a number of times, the Supreme Court and Congress. However, I recall in particular one visit to a public defender in the local courts.  On each visit, someone gave a presentation and the students were able to interact with the presenter.

The attorney with the public defender’s office made a great impression on me. This attorney had the passion and zeal of a true believer.  He said that people asked how he could sleep at night defending criminals.   He said “like a baby.”   He made one student, whose uncle was murdered, cry. He spit venom on many occasions, most memorably against non-public defender appointed attorneys whom he labeled as “soup-on-their-tie lawyers.”

Soup-on-their-tie lawyers.  Meaning, a slovenly attorney, from a ninth-tier law school, who barely passed the bar exam, of questionable ethics and practices, who was never prepared, always took the short cut.  The image of that lawyer is burnt into my brain.  At one of my previous employers, this kind of attorney was referred to as a “generic discipline-able attorney.”

As I grow older, however, let me caution newer attorneys not to underestimate the opposition attorney.  As a society, we have a tendency to overemphasize conventional wisdom.  The person wearing glasses is intelligent. Or on the other side of the coin, someone who looks like they slept in their suit (or spilled soup on their tie) is incompetent.

As a lawyer, you should not underestimate the opposition attorney, even if they have made a few mistakes along the way.  Even the worst attorney in the world sometimes stumbles into a great case.  Remember what my Theory of Knowledge teacher taught me: even a broken clock is right twice a day.  Do not be lulled into a false sense of confidence because of who is opposing you.  You still need to do your homework and do your job.  Particularly if you are a civil defense lawyer. You usually do not get to pick your cases.  The plaintiff’s lawyer usually does get to pick their cases.  Sometimes the case is better than you initially think.  Thinking a good case will go away because of the opposition attorney is an easily avoidable mistake.

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.

There are a few short answers.  They don’t have to be canary yellow, they don’t have to be legal size, they do have to 1.25 inch side margin, and no one knows for sure.  The best researched article on the subject is Old Yeller, The Illustrious History of the Yellow Legal Pad, Suzanne Snider, Legal Affairs, May/June 2005.  This has the best answers to the question.

I am transitioning away from canary legal pads because they don’t scan right.  The yellow comes out blurred for some reason, and if I ever have to convert my scanned notes into printed notes, it doesn’t make sense to use that much yellow ink.

Jay Foonberg, in his seminal How to Start & Build A Law Practice, 5th Edition, relates “Carry a yellow legal pad with you whenever you go to a public place.  When you have a yellow pad with you, you are loudly, but nonintrusively, proclaiming to every one who can see the pad that you are a lawyer.  Everyone knows that lawyers use yellow pads and very few people who are not lawyers use yellow pads.” Id. at pg. 142.

Anecdotally, and with all due respect to the amazing Jay Foonberg, I have not found that to be the case.  The only time that people ask me if I am a lawyer is when I am in the courthouse hall and they have a question.  Though I sometimes have a yellow legal pad, I am being asked because I am wearing a suit and tie and I am standing in front of a closed courtroom looking at the day’s calendar.  Those contacts are not new business, but people needing assistance with the calendar.

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.

I have yet to find an answer.  Some clues are found in the archives of the Fortnightly Club of Redlands, Streets in Redlands, by Dr. Lawrence E. Nelson, January 1974 at the Assembly Room of the A.K. Smiley Public Library.  The best take-away, completely non-related to the subject of this post,  from 1974:

Philip Merlan, the scholarly refugee professor at the University of Redlands and later at Scripps, once remarked that when he came to Redlands he was amazed to find how religious the people were; they even had a patron saint for torn-up streets. Everywhere he went he saw signs set up honoring St. Closed.

What states have streets named after them in Redlands?  Of the north-south streets, from west to east: California Street, New Jersey Street, a very tiny Oregon Street off of Orange Tree Lane, Nevada Street, Idaho Street connecting Plum Lane and Orange Tree Lane,  the solely-south-of-the-10 Iowa Street, Alabama Street, the rump Arizona Street off the anachronistic Coulston Street, Missouri Court (a cul-de-sac off of Park Avenue), Indiana Court, the cul-de-sac off of West Lugonia Avenue, Kansas Street (home of the Animal Shelter), which runs from Barton to Redlands Boulevard, Tennessee Street, the carved-up New York Street, Texas Street,  the somewhat north-south Michigan Avenue, Colorado Street north of Pioneer Avenue, the northside Ohio Street, the probably-not-named after the state Washington Street, and the probably-named-after-the-daughter-of-a-developer Georgia Street.  As far as east-west streets, Pennsylvania Avenue, Delaware Avenue, the way-out-east-may-technically-be-in-Yucaipa Florida Street.

I once answered an interrogatory speaking about Illinois Court (meaning Indiana Court), the location of a fatal motorcycle accident (outside the City limits), and the then-Public Works Director, Ron Mutter, informed me that there was no Illinois Court within the City, despite the fact that a variety of really old streets are named after Chicago streets (such as State Street) in Redlands.

The state-named streets are on the Lugonia grid, and that the original ones were California, New Jersey, Nevada, Iowa, Alabama, Tennessee, Kansas Street, New York Street, and Texas Street.  California is an easy one, but why Alabama and Tennessee?

Looking at a 1939 topographical map online, we see California Street, New Jersey Street, Nevada Street, Iowa Street, Alabama Street, Kansas Street, Tennessee Street, New York Street, and Texas Street, and Pennsylvania Avenue.  On the 1899 Redlands Quadrangle map, you can clearly see California and Alabama (the former because of its proximity to Bryn Mawr, the latter because it goes across the Santa Ana wash to Highland, but it doesn’t give street names.  The same on the 1901 Redlands Quadrangle topographical map, available on the USGS website for download, and the Redlands Quadrangle Map of 1908 shows the same.  So for now, the mystery of why certain states and not others is still a mystery.

Redlands and San Bernardino share a border, but it can sometimes be difficult to travel between the two cities.   San Bernardino is the older of the two cities, even if you are talking about San Bernardino’s second incorporation.  San Bernardino was laid out first, on mostly a straight north, south, east, west grid.  Part of Redlands is on a north, south, east, west, grid, the former Lugonia.  Most of south Redlands lies in opposition to San Bernardino’s grid.

Interstate 10 connects the two cities.  Redlands Boulevard, the former Highway 99, enters Loma Linda before it goes through San Bernardino. The same is true for State Route 210:  You have to enter the City of Highland before it connects to San Bernardino.  Though San Bernardino International Airport (formerly Norton AFB) is the border between a large swath of the two cities, the Santa Ana Wash currently prohibits direct access without going to Tippecanoe or Alabama/Palm.

The major streets with a border between San Bernardino and Redlands are Mountain View Avenue and San Bernardino Avenue; Victoria Avenue and Almond Avenue also work.  Lugonia Avenue used to connect to Mountain View, but a development turned it into a cul-de-sac in the 2000s.  While I was at the City of Redlands, there was some talk about a Mountain View Avenue extension across the river, but I have no idea about the status of such plans.

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.

Too many people go to law school with goals that are not necessarily, in my humble opinion, conducive to being happy, productive member of the legal community.  Before considering spending money to become an attorney, no matter the path, young people in the United States should ask themselves, “Why do I want to be a lawyer?”  Law can be a difficult profession, not at all like what you might see in television and the movies.  One thing that prospective attorneys do not often realize is the profession requires that you put your own needs firmly below that of the client.  Because the law often draws the ego-driven, this can cause much unhappiness, particularly in younger lawyers.

I have been thinking of how to express my feelings on this topic.  I have given advice, both solicited and unsolicited to people before they go to law school, and even some in law school.  I think one paragraph in an article that arrived today in the California Lawyer put it as succinctly as possible.  These are the words of Dan Grunfeld, a partner at Kaye Scholer LLP.  I have never had the privilege of meeting Mr. Grunfeld, nor have I ever had any cases with his current firm.  However, his essay “A Lost Generation” which appears at page 16 of the March 2013 California Lawyer.  Mr. Grunfeld writes (in the paragraph I mentioned earlier:

For their part, would-be lawyers should think twice before even applying to law schools. The legal profession can be noble and rewarding. Yet it is also demanding, and not immune to the same economic forces that have thrown so many other industries into turmoil. Law school hopefuls should apply because they want to become lawyers, not because they can’t figure out what else to do – and especially not because they see it as an easy path to a lucrative career.

Do not go to law school if your sole goal is to make money.  There are a lot of better paths to make money.  Also, you have to have a commitment to being a lawyer-to helping people (in the broadest sense of the world) with their problems and in turn by helping society resolve issues and make things happen within the bounds of the legal framework that makes the United States such a great country.

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.

Assemblymember Cheryl R. Brown introduced AB 801 four days ago, which strengthens the law regarding the theft of copper.  When I was an in-house municipal lawyer, particularly in Redlands, the theft of copper, including things like plaques from City parks was a big problem.  This bill is an attempt to further deal with this issue.  The bill is attempting to amend Business and Professions Code section 21608.5.

BILL NUMBER: AB 801	INTRODUCED
	BILL TEXT

INTRODUCED BY   Assembly Member Brown

                        FEBRUARY 21, 2013

   An act to amend Section 21608.5 of the Business and Professions
Code, relating to business.

	LEGISLATIVE COUNSEL'S DIGEST

   AB 801, as introduced, Brown. Junk dealers and recyclers:
nonferrous materials.
   Existing law requires junk dealers and recyclers, as defined, to
maintain written records of all sales and purchases made in the
course of their business, and makes a violation of the recordkeeping
requirements a misdemeanor. Existing law prohibits a junk dealer or
recycler from providing payment for nonferrous material, as defined,
unless the payment is made by cash or check, the check is mailed or
the cash or check is provided no earlier than 3 days after the date
of sale, and the dealer or recycler obtains a photograph or video of
the seller and certain other identifying information, as specified,
which information is to be retained by the dealer or recycler, as
part of the written record of purchases, for a specified period of
time.
   This bill would require junk dealers and recyclers to obtain
specified information before providing payment for nonferrous
materials marked with an indicia of ownership, as defined, and would
require that this information be retained as part of the written
record of purchases. Because a violation of the recordkeeping
requirement would be a crime, the bill would impose a state-mandated
local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 21608.5 of the Business and Professions Code is
amended to read:
   21608.5.  (a) A junk dealer or recycler in this state shall not
provide payment for nonferrous material unless, in addition to
meeting the written record requirements of Sections 21605 and 21606,
all of the following requirements are met:
   (1) The payment for the material is made by cash or check. The
check may be mailed to the seller at the address provided pursuant to
paragraph (3) or the cash or check may be collected by the seller
from the junk dealer or recycler on or after the third business day
after the date of sale.
   (2) At the time of sale, the junk dealer or recycler obtains a
clear photograph or video of the seller.
   (3) (A) Except as provided in subparagraph (B), the junk dealer or
recycler obtains a copy of the valid driver's license of the seller
containing a photograph and an address of the seller, a copy of a
state or federal government-issued identification card containing a
photograph and an address of the seller, a passport from any other
country in addition to another item of identification bearing an
address of the seller, or a Matricula Consular in addition to another
item of identification bearing an address of the seller.
   (B) If the seller prefers to have the check for the material
mailed to an alternative address, other than a post office box, the
junk dealer or recycler shall obtain a copy of a driver's license or
identification card described in subparagraph (A), and a gas or
electric utility bill addressed to the seller at that alternative
address with a payment due date no more than two months prior to the
date of sale. For purposes of this paragraph, "alternative address"
means an address that is different from the address appearing on the
seller's driver's license or identification card.
   (4) The junk dealer or recycler obtains a clear photograph or
video of the nonferrous material being purchased.
   (5) The junk dealer or recycler shall preserve the information
obtained pursuant to this subdivision for a period of two years after
the date of sale.
   (6) (A) The junk dealer or recycler obtains a thumbprint of the
seller, as prescribed by the Department of Justice. The junk dealer
or recycler shall keep this thumbprint with the information obtained
under this subdivision and shall preserve the thumbprint in either
hardcopy or electronic format for a period of two years after the
date of sale.
   (B) Inspection or seizure of the thumbprint shall only be
performed by a peace officer acting within the scope of his or her
authority in response to a criminal search warrant signed by a
magistrate and served on the junk dealer or recycler by the peace
officer. Probable cause for the issuance of that warrant must be
based upon a theft specifically involving the transaction for which
the thumbprint was given. 
   (7) If the materials are marked with an indicia of ownership, the
junk dealer or recycler obtains a proof of ownership record,
including, but not limited to, a receipt from the indicated owner or
a bill of lading, from the person selling or delivering the materials
that shows that person has lawful possession or ownership of the
materials. Copies of these documents shall be maintained by the junk
dealer or recycler as part of the written record of the transaction.

   (b) Paragraph (1) of subdivision (a) shall not apply if, during
any three-month period commencing on or after the effective date of
this section, the junk dealer or recycler completes five or more
separate transactions per month, on five or more separate days per
month, with the seller and, in order for paragraph (1) of subdivision
(a) to continue to be inapplicable, the seller must continue to
complete five or more separate transactions per month with the junk
dealer or recycler.
   (c) This section shall not apply if, on the date of sale, the junk
dealer or recycler has on file or receives all of the following
information:
   (1) The name, physical business address, and business telephone
number of the seller's business.
   (2) The business license number or tax identification number of
the seller's business.
   (3) A copy of the valid driver's license of the person delivering
the nonferrous material on behalf of the seller to the junk dealer or
the recycler.
   (d) (1) This section shall not apply to the purchase of nonferrous
material having a value of not more than twenty dollars ($20) in a
single transaction, when the majority of the transaction is for the
redemption of beverage containers under the California Beverage
Container Recycling and Litter Reduction Act, as set forth in
Division 12.1 (commencing with Section 14500) of the Public Resources
Code.
   (2) Materials made of copper or copper alloys shall not be
purchased under this subdivision.
   (e) This section shall not apply to coin dealers or to automobile
dismantlers, as defined in Section 220 of the Vehicle Code.
   (f) For the purposes of this section,  "nonferrous
  the following te   rms have the following
meanings:  
   (1) "Indicia of ownership" means words, symbols, or registered
trademarks printed, stamped, etched, attached, or otherwise displayed
on the exterior surface of the materials that reasonably identify
the owner. 
   (2)     "Nonferrous  material" means
copper, copper alloys, stainless steel, or aluminum, but does not
include beverage containers, as defined in Section 14505 of the
Public Resources Code, that are subject to a redemption payment
pursuant to Section 14560 of the Public Resources Code.
   (g) This section is intended to occupy the entire field of law
related to junk dealer or recycler transactions involving nonferrous
material. However, a city or county ordinance, or a city and county
ordinance, relating to the subject matter of this section is not in
conflict with this section if the ordinance is passed by a two-thirds
vote and it can be demonstrated by clear and convincing evidence
that the ordinance is both necessary and addresses a unique problem
within and specific to the jurisdiction of the ordinance that cannot
effectively be addressed under this section.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.