Petition — Richards v. County of Los Angeles

~Gupreme Court, U.

FILED

AFR 4 1979

IN THE : t WICHABL RODAK, R., CLERK

SUPREME COURT OF THE UNITED STATES

“Spring Term, 1979

yo, @8°1515

PEOPLE OF THE STATE OF CALIFORNIA,

JAMES E. RICHARDS, a resident of

the County of Los Angeles, on be-

half of himself, A. Pearson, and

all other such residents, similar-

ly situated, Petitioner,

ve

COUNTY OF LOS ANGELES, Respondent

PETITION FOR A WRIT OF CERTICRARI TO THE

OTATE OF CALIFORNIA COURT OF APPEALS

SECOND APPELLATE DISTRICT

James E, Richards

49 Sunset Aveme #1

Venice, CA 90291

Pro Se

April 2, 1979

IN THE

rasa SUFREMS COURT OF THE UNITED STATES

Spring Term, 1979

No.

"ROR EVERY WRONG THERE IS A REMEDY."

-Maxim of Jurisprudence

PEOPLE OF THE STATE OF CALIFQRNIA,

James E. Richards, a resident of

County of Los Angeles, on behalf

of himself, A. Pearson, and all

other such residents similarly

situated, PETITIONERS,

ve

COUNTY OF LOS ANGEIES,

RES PONDENT .

. PETITION FOR A WRIT OF CERTIORARI TO THE

STATE OF CALIFORNIA, COURT OF APPEAIS

SECOND APPELLATE DISTRICT

INDEX

Opinion Below.. COC CCC eo Oe EE EEE Ee EEEe

JUPASGLICtLOM. cccccccccvseccrsecrserses

Questions Presented. ..esesccccccesees

Statutory Provisions Involved.........

Statement of the Cas@...csccccsesecce

Background, ..ccccccccccccccccecses

Judicial Malpractice....ccecccsece

Third Amended Complaint.....s.scee

Second Cause of Action.......e.

Improper Demirrer..sscccccccsesece

First Appeal..cecccccccccccccccese

Second Appeale.cccccccccccccccseces

Why This Writ Should Be Granted......

(1) Complaint is manifestly

imbelligible....ccceccccccccvccce

(2) Appellate Court admitted

parts intelligible but refused

to specify which parts were

umintelligible....sesccccccccces

reves bceiticncce dixeekls

28

30

36

Appendix. ..cccece @eeeeeeesveseseses eeeAnl

CITATIONS

Page

U.S. Constitution, 1th Amendment....cce. 2

California Rules of Court, 202C.....ese00 2

California Code of Civil Procedure....... 28

California Government Code, 835.......0. 16

Califarnia Health & Safety Code, 39012.. 18

th i 39081.. 17

39430..

Barron v. Mayor & City Council of

Baltimore (32 US (7 Pet) 243 (1833).. 31

C.A. Magistretti Co. v. Merced |

Irrigation District (1972)

27 Cal. App. 3d 270, 27h-75.cceceeeee 28

1

The petitioner James E. Richards respect-.

fully prays that a writ of certiorari to

review the judgment and opinion of the Court

of Appeals, State of California, Second Ap-

pellate District, entered in this proceeding

on October 2), 1978,

OPINION BELOW

The opinion of the Court of Appeals, not

published, appears in the Appendix hereto. No

opinion was rendered by the Superior Court of

the State of California, County of Los

Angeles, nor the California Supreme Court in

the course of denying hearing, December 20,

1979.

JURISDICTION

The judgment of the Court of Appeals,

Second Appellate District of the State of

California, was entered on October 2, 1978.

A timely petition for rehearing was denied;

and a timely petition for hearing before the

California Supreme Court was denied without

comment on December 20, 1978. By virtue of an

extension of time granted by this Court March

9, 1979, this petition for writ of certiorari

2

diction is invoked under 28 U.S.C. 12574(3).

QUESTIONS PRESENTED

(1) Is the Complaint in this mtter in-

telligible?

(2) If so, does calling it otherwise by

the courts while consistently failing to en-

force Rule 202C of the California Rules of

Court deny petitioner due process and equal

protection of law guaranteed by those clauses,

U.S. Constitution, 1th Amendment?

(3) If so, may this Court feel obligated

to correct the situation?

STATUTES INVOLVED

California Rules of Court, Rule 202C.

"Demurrers for uncertainty. Demurrers

founded on uncertainty (CCP 430.10(g)) are

disfavored, Where such are asserted, they

mst distinctly specify the grounds upon which

they are made and indicate by reference to page

and line the particular parts of the pleading

that are uncertain."

U.S, Cunstitution, 1th Amendment.

".,,nor shall any State deprive any person

is filed within the extended due date of and

of life, liberty, or property, without due pro-

including April ), 1979. This Court's juris-

cass of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

This is a case involving possible judi-

cial prejudice in a case pertaining to a

perhaps far-ranging environmental issue,

directed against a government entity, which

claims not to understand the pleadings pre-

sented at all.

The primary purpose of the suit is to

obtain an order directing the County of Los

Angeles "to evolve and adopt a plan to end

air pollution within a reasonable time frame

and without economic detriment to citizens,"

As stated in the summary of the case in

the application for extension of time in

which to file petition for writ of certiorari,

which was granted by this Court March 9, 1979,

"Petitioner sued as individual

and on behalf of class for relief

from auto air pollutants on the

grounds that such contaminants

originating on respondent's pro-

perties (their streets and high-

ways ) constituted a nuisance

(which was especially injuri-

ous to him), that the smog-

laden conditions of the respon-

dent's properties were. them-

selves dangerous and caused

damages for which respondents

were liable, and on several

other theories of litigation,

including negligence, violatimm

of California Health and Safety

Code Section 39430 outlawing

any harmful emanation from any

source whatsoever, and others.

The courts have found that

they can't understanc perti-

nent sections of the Complaint,

although in violation of Rule

202c of the California Rules

of Court, no one has ever ex-

plained what those sections

are,"

Before providing a more thorough examina-

tion of petitioner's Complaint, it might be

well to acknowledge the Supreme Court's under-

standing of the ertire application for extension

above menticned, and thank the Court for

granting same, evidencing that petitioner is

capable of writing a comprehensible court

document.

One is aware that the Court is busy and

has little time for reflection so perhaps a

few paragraphs devoted to the background

milieu from which the Complaint emerges will

be useful,

BACKER OUND

Smog -=- photochemical smog -- air pollu-

tants hurt everyone; residue from air contami-

nants is thought to be present in tissue of

all resident citizens, the functioning of the

mind is sometimes reduced. On days called

"unhealthful," one's activities are necessarily

restricted, and those who have sensitive lungs

and/or mst exert themselves on those days can

experience lung damage. Use of one's property

may be impaired, and due to corrosive or other-

wise detrimental action of air contaminents ,

personal and real property is damaged a minimm

of $100 per year per American household on the

average. For about ‘2 people in Los Angeles,

the average number of daily fatalities conser-

vatively attributable to auto emissions here

based on several medically-published estimates,

ee

6

air contamination obviously has a more force-

ful impact, For others, who have a predispo-

sition to lung ailments, who have heart con-

ditions, are pregnant, live in areas of high

concentrated contamination, are very young or

very old, breathing Los Angeles air is the

equivalent of being forced to smoke a pack of

cigarettes per day; for all, it is argued, air

pollution abatement takes on an air of justice,

not mere political convenience. One may not

dictate what another mist be subjected to, es-

pecially when that imposition violates an in-

alienable right, as a threat to life and pro-

-perty, as described above, surely does,

Air contamination is something which

everyone is often lead to believe is control-

led; yet smog is not controlled. The highly

touted progress produced by the catalytic con-

verter is ephemeral upon deeper investigation.

It is a matter of changing definitions: Carbon

dioxide is not called a pollutant. The "3-

way" catalytic converter reduces all emissions

to carbon diaxide and water vapor. Carbon

Gioxide is thus released into the atmosphere

at a rate of 19.75 pounds for every gallon of

gasoline combusted, with a resultant emission

in Los Angeles from motor vehicles of over

200,000,000 pounds per day.’ This is not

insignificant when one contemplates that C02

is a rare gas in the atmosphere. Nitrogen and

oxygen compose 99% of the air; C02 accounts

for only 0.033%. The result of this contribu-

tion to an atmospheric imbalance has been ana-

lyzed under the term "greenhouse effect,"

which is what some scientists say, on a run-

away basis, caused the inhospitable Venusian

atmosphere. Carbon dioxide released inearth's

atmosphere warms it, by trapping the sun's re-

radiation from the earth, This has the effect,

early scientists said, of increasing vegeta-

tion, in the long run, thus the name. However,

it. may be a misnomer; man is reducing the

amount of vegetation which could be available

to utilize the excess C02; and at any rate, the

amount of emissions exceeds the flora's ability

to respond, The usual result of this warming

trend (which has been noted, and corresponds

exactly to prediction), is nearly unanimously

admitted sufficient to consider the risk likely

"Based on estimates provided by Shell Oil,

State and local pollution control boards.

of polar ice caps melting in the first ‘eoune

of the next century substantially enough to

flood low-lying coastal cities. However,

recent published evaluations, which the peti-

tioners and common sense support, propose

that the effects of CO2 overdose wil” not be

realized suddenly in 0 years, Rather, in

ten years the globe will be committed to wea-

ther pattern changes due to C02 accumulated by

that time -- warmer air flows differently and

the differences may be several degrees Fahren-

heit and can vary by region -- one wonders if

they've not been noted to a degree already --

with disastrous effects on agriculture product.

Thus, at the tremendws rate with which the

catalytic converter spews forth C02, it is

thought that "progress" is hardly the ward to

describe it.

Smog, or air pollution, since "smog" has

been preempted to desc”ibe a particular kind of

air pollution, is related to many aspects of

daily life. It, like inflation, touches one

in many sometimes-subtle manners. It is rela-

ted to oil dependency, and is almost a measure

of political and economic global instability.

It is tied to the auto, to the energy resources

| 9

used to produce them, mairtein them; it is re-

lated to agriculture as we have seen but even

more immediately, contributes a few percentage

points to the cost of food, because of pasture

and farming land rendered unusable or damaged

by smog. It affects housing: people build to

escape it,

Bad news is never popular, but if it is

thetruth, the courts should set the example for

being able to deal with it, if the need is pre-

Sent, as it is in this case. Planners may as-

sure, politicians may smile, but it is only

in the courtroom where justice purely is to be

assured, Therefore, when @ political agency

says "it is controlled," and when auto manu-

facturers say "it is harmless," for the courts

to respond to a challenge to those statements

with "I can't understand" is an attack on a

fundamental right.

But more along those lines in "Why This

Writ Should Issue,"

Petitioner filed prerequisite claim far

filing an action for damages against the County

of Los Angeles in December, 1974. Contrary to

mandate of California Government Code Section

913, this claim was not acknowledged by the

10

County, Thirty claims, all identical except

for name and address of respective claimants,

were filed, then 300, A rejection by the Coun-

ty of the latter groups was received. Then,

within the time limits for doing so, a com

plaint was filed in the County of Los Angeles

Superior Court by petitioners for damages and

or the court order as already discussed, on

the grounds previously summarized,

No response from the County was made, so

petitioner filed notice of default. The County

next filed a short demrrer claiming no clains

had been filed, no facts sufficient to state 2

cause of action stated, and the entire com

plaint and all of its parts were totally unin-

telligible.

Since petitioner knew claims had been

filed and had been alleged filed in the Com

plaint, petitioner did not believe the other

objections, either; and stated in opposition

that respondent could not demr in this situa-

tion since there was a case in assumsit -- a

common count -=- that the defendant had a duty

in canscience to perform to petitioner, also,

that respondent was sufficiently apprised of

11

the issues to make a defense, and further op-

position, including copies of the 331 claims

stamped and time-dated by the County admini-

strators, pls a wealth of appellate opinion

that a respondent with knowledge presumed to

be superior to the petitioner's could not de-

mr on uncertainty (which term also includes

ambiguity and unintelligibility), and that a

demurrer on uncertainty was disfavored and

was required to specify by page and line num-

ber what it was that was maintained uncertain.

The County had not done that.

JUDICIAL MALPRACTICE

In the first hearing, the County of Los

Angeles in the County Superior Court revealed

— that is, the deputy counsel representing

County revealed -- he had no trouble under-

standing Petitioner or the issues, However,

the courtroom had been cleared by the judge of

all spectators -=- by readjusting the schedule

so that the case was heard after all other ou-

Siness had been concluded and then after a noon

recess, too. The County of Los Angeles main-

tained that hundreds of years of progress could

not be destroyed and the County was making pro-

12

gress, Petitioner maintained that the destruc-

tion of Los Angeles was the respondent's usage

and suggested the "progress" referred to was of

the philosophy that if it took twenty years to

build up the problem, it should take that long

to solve it, and just as one did not expect a

dentist to take four years to drill a tooth

based on that same reasoning, we thought the

time to effect a cure could be shortened and

that we had a plan -- and surely the combined

resources of the entire county of Los Angeles

could come up with a plan -- that we'd like to

see effected: in a reasonable time.

The demurrer was sustained in the empty

courtroom, although with leave to amend.

Let it now be said that ALL further hear-

ings on the matter were conducted in an empty

courtroom after all other business had been re-

scheduled,

Petitioner did file for a change of venue

which was denied.

But having 60 days to amend, petitioner

timely did so, focusing on a brief phrase by the

respondent at the time of the hearing that the

complaint might not be "specific" enough. There-

13

fore, the Second Amended Complaint dealt with

the medical terminology, listing page after

page, of specific damages which petitioners,

each and all of them, suffered as a result of

various types of auto emissions, for example:

decreased oxygen-carrying ability of the blood

after exposure to common concentrations of

carbon monoxide, increased risk of cancer due

to present concentrations of NOx fumes, and

the particular damages suffered by some members

of the class, for example: the young, the old,

the pregnant, noting that infant mortalities

increased in rate in high smog concentration

areas, babies born in those areas and in Los

Angeles in general weighed less than normal,

those already with cardio-pulmonary weaknesses

experienced highest rate of crises during

periods when both smog and temperature were

highest, that public health researchers in

New York and San Francisco -- cities which had

better air quality than Los Angeles -- had

produced studies -- copies of which we sub-

mitted -- that concluded that emission damages

such as occurring in Los Angeles could reasona-

bly be expected to occur at the rate of (this

1h

is an interpretation) 12- 28 fatalities per

day, with debilitating illnesses an order of

magnitude 1000 times as great as that number

in terms of lost man-days/day., Los Angeles

County, it was alleged, as owner of the pro-

perty on which these dangerous conditions ori-

ginated, existed, and from which they obviously

emanated was duty bound to correct the situa-~

tion.

Again, neither facts nor allegations

were contested as being untrue.

Respondents in their demrrer alleged no

Claims had been filed, no facts sufficiamt to

maintain a cause of action had been stated,

and that the Complaint as a whole and in all

of its parts was uncertain, ambiguous, and

unintelligible -- a carbon copy of their first

response,

Despite the obvious error re claims as

copies of them had been submitted with the

Second Amended Complaint, demurrer was sus-

tained "on the grounds of the demurrer," with-

out, further explanation,

THIRD AMENDED COMPLAINT

Suspecting that no amount of amendation

15

would be acknowledged understandable by the

County of Los Angeles and the Superiar Court,

petitioner hit upon the idea of wording the

complaint in the exact language of the law --

this could hardly be called unintelligible--

and California law is very generous in stating

within the code that air pollution is detrimen-

tal to health and that mech of it arises fran

the use of the automobile. The only remaining

challenge was tc make such statements meet the

requirements of a cause of action -- a right

of plaintiff violated by defendant.

So petitioner very carefully reconstructed

the various causes of action to mintain some

authoritative quote on the universal and par-

ticular effects of auto emissions suffered by

petitioners, plus an allegation of the defen

dants being in some way responsible for those

violations taking place, because that format

was dictated by the definition of a cause of

action:

"A civil action is prosecuted by one

party against another for the decla-

ration, enforcement or protection of

a right, or the redress or prevention

of a wrong." (Code of Civil Procedure

Sane peel

16

Section 30),

To cite a general example, first, in the

first cause of action, entitled "Negligence, "

petitioner stated in terms provided by the

law that respondents owed but failed to keep

obligation to petitioners! rights to life when

respondent foresaw the types of damages to oc-

cur and which did occur, (See Appendix),

To be more specific and detail all the

essential parts, the second cause of action

is printed below, For this cause petitioner

used Government Code Section 835 as a basis

to maintain that defendant were liable for

the smog-laden conditions of its property --

its streets and highways -- which caused detri-

ment and harm, Section 835 was enacted

Specifically to bypass the Sovereign immunity

doctrine in certain situations. The. full

Specifications of liability under Section 835

and the second cause of action are produced

below.

GOVERNMENT CODE & 835

Conditions of Liability, Except

aS provided by statute, a public

entity is liable for injury

caused by a dangerous condition

of its property if the plaintiff

17

establishes that the property was

in a dangerous condition at the

time of the injury, that the in-

jury was proximately caused by

the dangerous condition, that

the dangerous condition created

a reasonably foreseeable risk

of the kind of injury which was

incurred, and that either:

(a) A negligent or wrongful act

or omission of an employee of

the public within the scope of

his employment created the dan-

gerous condition; or

(b) The public entity had actual

or constructive notice of the dan-

gerous condition under Section

835.2 a sufficient time prior to

the injury to have taken measures

to protect against the dangerous

condition,

SECOND CAUSE OF ACTION

DANGEROUS CONDITION OF PUBLIC PROPERTY

(Govt $ 830(ff))

I

-Dangerous Condition-

(1) "Air pollution ... is detrimental

oy Para

18

to the health, safety, and wel-

fare and sense of well-being of

the people of California." (H.

& S.- 39010). Plaintiffs, each

and all of them, are people of

California; 28,000 suffer death

or serious illness daily in Los

Angeles due to auto fumes.

(2) "The emission of pollutants

from motor vehicles is the pri-

mary cause of air pollution in

many portions of the state'(H,

& S.4 39081). Los Angeles suf-

fers a severe smog problem, one

of the ten worst in the United

States, attributable to automo-

biles. These dangerous conditi-

ons originate on, and emanate

from, Defendants' properties:

the highways, streets and roads

within the County of Los Angeles.

II

-Knowledge-

Defendants have received actual

and constructive notice of such

dangerous conditions since 195,

and previous (People's exhibit

2). ae.

III

-Power to Remedy-

Defendants, each and all of them,

are empowered and directed by ex~-

plicit state policy to take all

action necessary to provide citi-

gens of California with clean air,

including, but not limited to, re-

strictive air standards (H. & S.*

39012, Pub. Res.} 21001(b), (f)).

IV

-Opportunity=

The time since Defendants have

become aware of the problem has

been sufficient to provide a

solution,

V

-Failure to Remedy-

Damages continue to this day.

VI

Plaintiffs include those who

drive -- claimants joining

Fiaintiffs under assertion of

right to reform Government or

condition of involuntary ser-

vitude to transportation sys

tem == and those who do not

<a

operate motor vehicles, either

by choice or through conditions,

VII

~Compliance with Govt.3 9h5.)-

Cause One Section VII, incarpo-

rated herein,

the te

Has not a cause of action been stated

that conforms to the requirements of Section

8357 |

Has not the first section of the above

cause established 5 plaintiffs are damaged

from a condition of the defendant's property?

Does not the second section allege the

notice requirement? —

Do not sections 3 and ) constitute a

substantive allegation of adequate notice?

(Truth of which is for the jury to determine),

Does not the fifth section emphasize

contimious damages and failure to remedy?

Knowing the objections to be faced, the

Complaint was written in the most basic, clear

and concise terms possible and to use language

whose intelligibility, if anything, is manda-

tory.

In helping the Court to determine further

whether the court could reasonably have been

21

expected to understand this, Petitioner

would like to offer the signatures of 10 high

school graduates out of ten asked, who de-

clared they understood the cause of action

detailed above, and, moreover, saw that it

matched the requirements of Government } 835,

Thus it should have been evidenced that the

cause of action in its parts and its theory

or theme are readily intelligible. More

signatures could be added if time permitted,|

In like manner for Trespass, Violation

of Health and Safety Code Section 3°30

( the allegstion of a violation of Code it-

self constituting a cause of action), and

other causes of action, petitioner took the

language directly from the law or other well-

known books, including defendant's own pub-

lications, and made use of the accepted legal

definition of "cause of action," "one right of

plaintiff violated by defendant," to fit the

facts into the format.

In addition, petitioner alleged timely

compliance at least once with the Torts Claims

Act, which requires claims to be filed with

a public entity before a court action for

1 Appendix

22

damages can be undertaken against them and

specifies a statute of limitations within

which to file a complaint should the claim be

rejected,

IMPROPER DEMURRER

The respondent demurred again, with a

change: with two objections, of no cause of

action and unintelligibility "in all of its

parts," but with no points and authorities in

support thereof. The points and authorities

that were included deait exclusively (an im-

portant point of emphasis) with miscitations

and misquotations of the claims statute. The

record will show that the actual cases cited

are opposed to respondent's contentions and

confirm petitioner's position that claims were

not essential to have been proven filed in a

complaint (which they were anyway) and that

they were not necessary at all for remedies

sought via injunction, Thus the demurrer was

defective in farm as well as substance,

The deputy attorney who wrote it did not

show up at the hearing after our opposition,

an elaboration of previous oppositions and an

accusation of a sham defense being levelled

against him and calling for summary judgment;

and the substitute attorney said nothing beyond

23

an explanation of why the other attorney was

absent, not a word, Yet, the demurrer was

suStained ("without further leave to amend.")

FIRST APPEAL

Petitioner appealed.

There were to be two appeals.

Responding to the first appeal, respondent

changed all previous arguments and stated that

even if the trial judge did err in making a

judgment, the complaint could still be voided

on other, valid grounds, Then respondent

cited a provisions by a law using a numbering

system unfamiliar to petitioner that stated

the State had primary responsibility for con-

trolling auto pollution, while the county re-

tained primary responsibility for controlling

Stationary sources. On examination, our res-

ponse was that the law respondent cited was

a revision of the law in effect when this suit

was brought, and that legislators in making

the revisions had specifically exempted such

suits from any effects of the revisions. In

that previous law, county and state shared

responsibility for "air pollution control,"

and *he county was permitted to enact stricter

standards than the state's, But even so, it

2h

was argued by petitioner, auto emissions

standards were not the only possibility or

only issue -—- what was being talked about

was the condition of the defendant's own pro-

perties and surely they retained responsibi-

lity in that regard -- to argue otherwise

would be absurd: one could construct a parking

garage without adequate ventilation, and if

someone had a heart attack while waiting for an

elevator, blame the omission on the state!

So add-on devices and stricter auto emis-

sion standards for automobiles were not neces-

sarily at issue, and that was the context

within which the revised code made its delire-

ations.

The Appellate Court did not rule on the

merits of the case but found that although

the Superior Court had sustained demurrer with-

out leave to amend further, it had not for-

mally dismissed the action, and therefore the

Appellate Court lacked jurisdiction, dismis-

sing the appeal (although it is common to

deal with the substantial issues at that time

anyway ).

SECOND APPEAL

Petitioners went back to Superior Court,

obtained dismissal, and refiled appeal.

25

Now it should be noted that because of

exhorbitant copying costs -- up to ten times

competitive rates -- n& to mention costs for

the original — charged by County in preparing

a record for transmittal to the Appellate

Court, pertinent arguments and history were

omitted from the appeals.

Nevertheless, petitioner presented a

clear and concise record to the Court of Ap-

peals, whcih was mich the same as the first

appeal, and a concise brief, which fairly sun-

marized both sides of the basic issues. (Ap-

pendix, ) The County this time did not respond

at all.

The Second Appellate District said peti-

tioner in propria persona had no business in

court, correctly summarized the intent of the

suit, examined the record, found a one-page

document superfluous, while the demurrer was

missing, found it, found it as summarized in

the brief, Examined claims issue in detail,

incorrectly furthered one of respondent's mis-

quotations. Did not analyze uncertainty issue

at all. Then affirmed judgment for uncertain-

ty.

In more detail, the Appellate Court began

by saying that Petitioner in propria persona

~ DE PY ere

26

"poses insurmountable problems of procedural

and substantive law." Court incorrectly lists

the contents of the record before it; it also

includes Plaintiff's Notice Designating Record.

Had this been read, it would have been realized

that the one-page superfluity (out of 102 pages

in the record) was not specified by Petitioner;

it was a clerk's error, like misspelling petiti-

oner's name -- easier to make than correct, and

for all Petitioner suspected by that time was

intentional). Demurrer probably should have been

included; respondent supplied same in first ap~

peal; petitioners considered error to be shown

by supplying clear Complaint and drawing atten-

tion to uncertainty issue. Test on certainty

will ultimately rest on Complaint, anyway. Court

notes points and authorities deal "primarily"

(why does Court ignore defects of demrrer -- "€X .

clusively" would have been accurate -- and

acknowledged demirrer for uncertainty was fatally

defective), Detailed analysis of claims issue,

Says statute in itself has certain requiremenis;

petitioner has not alleged and proven compliance,

thus, like respondent, misquoting C.A. Magistret-

ti Co. v. Merced Irrigation District (1972) 27.

Cal. App. 3d 270, 274-75, which states complaint

27

must allege or prove compliance; a thorough

examination of the record would have discovered

proof, as copies of the claims were included

and were the forms supplied by the County,

receipted by them, and the filing date on the

first complaint indicates the time of com

mencement of proceedings -=- all and more argued

in the record before the Court in respondent's

Opposition to Demrrer to Third Amended

Complaint, which concludes, as Court did, that

claims not necessary for injunction. After five

pages of strictly criticizing petitioner witbout

one word for rospondent yet without finding

any fatal defects in petitioner's case, the

Appellate Court, without any analysis of the

central issue, unintelligibility, affirmed

dismissal because of it.

The case cited by the Court in support of

its affirmation was completely at loggerheads

with the treatment of this case by the courts.

In that case every word and phrase change in

successive complaints was noted -- even over

the objections of attornies who wrote the com-

plaint; -=- and explanations given as to why

they did not meet requirements of specific

grounds for demurrer (which wasn't on 2alif Code

a

28

of Civil Procedure 30.10(f), uncertainty,

but C.C. P. 430.10 (g), failure to specify

whether contract was oral or written. |

At this point petitioner begins to feel

justified in questioning the integrity of the

courts; a petition for rehearing which con-

tained the requirements of California Rules

of Court 202C was denied, and a petition for

hearing before the California Supreme Court

raising questions about due process and equal

protection in the state and federal context

was denied without comment.

WHY THIS WRIT SHOULD BE GRANTED

(1) Complaint in this mtter is manifestly

clear and intelligible to average high school

graduate.

God help us if we forbid a layman to

write a complaint in this country. Just be-

cause it may deal with a serious issue, and

may be innovative in applying the law (but

perhaps that is auspicious -- after all, the

problems we are facing have not responded to

run-of-the-mill solutions), certainly is no

means to dismiss it,

Respecting the backgrounds of the reader,

lawyers were not always allowed to practice

in this country. It didn't take bar member-

: 29

ship to bring a case in the judicial system;

lawyers for hire were sometimes considered

scoundrels; if one can say that legal studies

aid administration of justice, once can also

say such expertise can obstruct it. In any

event, for the Court to start an opinion on

the impropriety of being in pro per, to make

its criticism tougher, or to say that the rules

governing the can be suspended to inhibit the

layman, as disregarding 202C has done, is to

raise the law of the Country ABOVE the people,

no longer of, by, and for them.

Petitioner Richards has a master's degree

in business from a prestigious institution, an

invitation to submit stories to Esquire Maga-

zine, and 10 high school graduates' permission

to use their names, out of 10 asked, attesting

to their understanding of the second cause of

action and, further, state, relying on the

description of a cause of action as given

previously herein, state that they have read

Section 835 of the Government Code and see

where the Cause meets the requirements of

that Section for stating a cause of action.

(Appendix), A medical doctor -= a customer

of petitioner and the only one known locally

and asked -- found it readily intelligible and

30

said his name could be used with it in any way

wanted: Dr. David Gura, M.D., 2526 Washington

Aveme, Santa Monica, CA (213) 829-1009; and

of the three to four lawyers consulted in this

matter, all say they understand it, some re-

quiring the allegation of wrongdoing -- the

failure to remedy -=- to be pointed out to them

in the second cause, but do not wart to go so

far as to be quoted on it for fear of contra-

dicting a previous court, of jeopardizing their

partnership, or because they're not getting

paid for it.

You should see the shock of some of the

lesser educated people when told that the courts

claim they can't UNDERSTAND this, and it is

truly heart-rending when you see some of them

Swallow like cyanide their disappointment with

the system as a matter of habit.

Plainly, an error was made in dismissing

this case on "unintelligibility."

(2) The Appellate Court admitted parts were

intelligible, but continued lower court's error

in refusing to specify, in violation of Rule

202C, California Rules of Court, which parts

were unintelligible or lacking.

Whereas the Superior Court held that all

of the Complaint was unintelligible, Appellate

31

Court by its analysis found some parts of it

intelligible; and abrupt dismissal on the

grounds of certain unnamed central portions

unintelligibility is also suspect. An explan-

ation of what it is that is "unintelligible"

should be demanded, Rule 202C entitles peti-

tioners to this. It is understandable why this

rule exists. It is not believed that 202C is

routinely ignored; petitioners allege it was

suspended in this case alone. It is thought

that to admit understanding, admits the case;

and the judges refuse to do this. Obviously,

petitioner feels this should be called an ex-

treme abuse of discretion. If petition is in-

telligible, flagrantly calling it the opposite

denies petitioner due process and equal pro-

tection, guaranteed by both the Constitution

of California’ and the U.S.'s 1th Amendment,

extending into state matters.

In inverse condemnations, California Con-

stitution calls for compensation established by

jury. For validity of inverse condemnation pa-

rallel, see Barron v. Mayor & City Council of

Baltimore 32 US (7 Pet) 23 (1833), (prior to

‘uth Amendment ),

32

(3)Now are we to assume that judges are too

weak to enforce the law in this state or that

the County exerts too mich influence in the

courts, a dialectic of the individual existing

for the convenience of the state? These are

not idle issues,

When up to 28 people die in Los Angeles

daily due to vehicular emissions and myriad

lesser injuries and damages are observed, in-

cluding a volume of gas endangering the earth's

atmospheric balance, one might say that some-

one else should bring these matters up. Per-

haps that is always a challenge to be dealt

with, but petitioners think that individual

citizens are best suited -- other than perhaps

the President -- to blow the whistle on an

unacceptable policy. A bureaucrat might not

be willing to risk his tenure; an established

environmental organization may be tamed by

repeated contact with the opposition, have its

own internal bureaucracy, may not have a spe-

cific proposal to improve the situation, as we

do, and thus feel unworthy to criticize, etc.;

yet other groups are beginning more vocally to

decry the CO2 hazard. But what is solely rele-

vant is that a wrong exists, and petitioners

come to the courts for something to be done

33

about it e

And not half-done either. Petitioners

are dismayed that the courts apparently are in

despair about the citizens' ability to cope

with the situation, display reluctance to ac-~

cept possibly essential change without seeing

-- or even listening to -- suggestions of what

that change might entail, and more particularly,

are willing to continue a wrong for the sole

convenience of established selfish interests.

It is petitioners' belief that the courts

should have more faith in citizens! ability

to comply with the necessities of the law.

Harmony with justice is not hardship.

So please, please reaffirm our faith in

the system by making sure this case gets a fair

and open hearing.

Otherwise, a basic right is usurped: which

further demonstrates the evil of big government,

a judiciary not separate in fact from other

branches, in de facto collusion with the govern-

ment, not maintaining objective neutrality,

dismissing basic guarantees: such are repugnant-

ly short-sighted. If a single structure or manu-

facturer were involved for 28 lives per day the

outcry would be enormous, but here we have the

perceived self-interest of the majority.

34

Others' lives are intruded and oppressed upon,

And it is presumed to be their willing sacrifice

-- even their public duty: It is not. Peti-

tioner, for one, states that he does not have

any interest in the future of the automobile

(although auto workers mst be cared for), does

not see driving as a necessity (states make

mich to-do, after all, about driving being a

privilege not a right), sees many possibilities

of order and profit not based on an economy

riding on oil-burning transportation.

Thus, smog is not only a political issue.

But politics are ruling in the courts! treatment

of this case. Insisting that the present air-

pollution abatement policy is infallible is pap

--we come before the bar for justice. Peti-

tioners' lives and properties are being taken

in a substantial degree; a matter of justice

is involved: these damages are not accidents,

they are man-made; perhaps they are done without

malice -- but are from negligence. Respondents

have a role as protector, and by bei.g as source,

albeit perhaps secondary one, of these pollu-

tants, carry a double obligation to correct the

Situation.

Petitioners have the right tc weigh the ad-

35

vantages and disadvantages of the situation and

decide if they are deprived wrongfully; and if

they do so, they have a right io argue the case

(before a jury of their peers in California) --

in a public tribunal. Yet this basic act is

being denied to petitioners.

What are the consequences of these denials

of rights?

It isn't as if a parking ticket error were

involved. At least a dozen deaths per day, 1000

times that mumber incapacitated by disease,

traffic problems, higher prices (auto, agricul-

ture), serious threat to agriculture are all

involved; and petitioners think they're entitlec

to every means available to deal with the issue.

But we have been denied justice in a very

basic sense, by judges' one-sided leniency to

claims of unintelligibility which is patently

demonstrable to be false -- at least not fairly

argued, What should our faith in the judicial

system be after this experience? Should we have

faith in it? Should we seek recourse outside it?

Destroy it? Transcend it? Beware the vower of

the individual; Bu. why have courts? Are they

not to fill a need? ire not the two sides to

be weighed equally? For arrogance, hypercriti-

36

cism, defensiveness, unfair dealing, favo-

rites playing, unfair dealing, petitioners

could go to 50% of the car dealers, encyclo-

pedia salesmen, auto mechanics, etc. Why

have judges?

CONCLUSION

We may be "mere individuals," but we do

think claiming the Complaint is unintelligible

is an insult. In the interests of furthering

fundamental fairness on a critical and timely

matter of mitual importance, we ask that this

petition for writ of certiorari be granted by

this highest Court.

Respectfully submitted,

ama

af AIF ALS [che ae

April 2, 1979 “Pro se

49 Sunset Aveme #1

Venice, CA 90291

Al

APPENDIX

Petitioners! Complaint,

Third Amended,

First Cause of Action...c.cece

Fifth Cause of Action, eeecesece

Respondent's Demurrer.....ssccccceee

Petitioners' Second Appeal. .... cece

Appellate Opdndones ce cccccccccccccce

High School Graduates' Support

of Complaint's Intelligibility

A2

FIRST CAUSE OF ACTION

-NEGLIGENCE-

I

-Capacity to Sue-

I am a citizen, a resident of Los Angeles;

I am also a member of a group, the residents

of the County of Los Angeles, whose number

is certain, ascertainable, and adequately

noticeable. I am typical and respresentative

of that group in median age, income, and

pertinent demographic characteristics.

II

-Statement of Rights-

We have rights. Among them: to life

(Preamble to U.S. Constitution, California

Constitution, Art. 1, Section 1), healthful

environment (Pub. Res. Section 2100 (b)),

and freedom from nuisance (Civ. Sectiion 3479,

3480).

A3

III

-Duty of Defendant-

"The Government owes the duty of pro-

tection to the people in the enjoyment of their

rights...." (Cohen v. Wright (1373) 22 C.293).

This is the purpose for which government is

instituted (Calif. Const. Art. 1, 2). The

county is a legal subdivision of the state.

The Board of Supervisors of Los Angeles

County is obliged by Article Vi, Section 25

of the Los Angeles County Charter to perform

the duties prescribed by general law. The

Constitution is the basic and fundamental law.

IV

-Damages-

(1) At least 28 persons die daily in Los

Angeles County due to auto fumes. (Exhibit

1). Another 28,000 are too ill to function

normally. Each individual, including Plaintiff,

carries a pollution burden--tissue residues

of pollutants. The common results of exposures

include decreased mental capacity, increased

cancer rates, and increased susceptibility

to many other diseases.

(2) Polluting automobiles mainly are

operated by Los Angeles County residents

within the county.

V

-Proximate Cause:

Failure to Take Action-

The Board of Supervisors is empowered

by H. & S. Section 39012 to establish

restrictive air standards, and is directed by

State policy to take all action necessary to

provide the citizens of this state, including

Plaintiffs, with clean air (Pub. Res. Section

21001 (b), (f)). Yet although they have

been aware of the dangers of smog since

1954 (People's Exhibit 2), they have not

effected this action, with damages resultant as

described above.

VI

-Jurisdiction-

"Obligation to guard and enforce every

right secured by federal constitution rests of

state courts equally with federal courts."

Mooney v. Holohan (1935) 55 S. CT. 340,

294 U.S. 103, 79 L. Ed. 791, 98 ALR.

AS

406, rehearing denied 55 S. Ct. 511, 294

U.S. T32, TL. BG. i261.

VII

-Compliance with Claims

Statute (Govt. Section 945.4)-

In compliance with Govt. Code Section

945.4 requiring claims to be filed prior to

action against county, on December 24, 1974,

January 22, 1975, and February 28, 1975, a

total of 331 claims were filed with the Board

of Supervisors on this matter and selected

copies are already on file herein. Yet

damages have occured,(sic) are still occuring,

(sic) and will continue to occur unless certain

action is taken by this court.

A6

FIFTH CAUSE OF ACTION

VIOLATION OF H. & S., SECTION 39430

As in previous Cause.

II

"Air pollution...is detrimental to the

health, safety, and welfare and sense of well-

being of the people of California" (H. & S.

Section 39010). Such contaminants are

detrimental to property and material as well

(Source: National Academy of Sciences

Report to 93rd Congress on Effects of Air

Pollution ).

Ill

-Source-

"The emission of pollutants from motor

vehicles is the primary cause of air pollution

in many portions of the state" (H & S Section

39080). In Los Angeles County, 50 to nearly

100% of contamination by CO, NOx, HC, and

particulates emanate from automobiles and

Defendants' properties.

IV 7

-Law-

"A person shall not discharge from any

source whatsoever such quantitites of air

contaminants, smoke, or other material

which causes injury, detriment, nuisance, or

annoyance to any considerable number of

persons or to the public, or which cause

injury or damage to business or property"

(H. & S. Section 39430, 24243).

V

-Definition-

"'Person' includes any person, firm,

association, organization, partnership, business

trust, corporation, company, district, county,

city and county, town, the state, and any of.

the agencies and political subdivisions of the

state, or such entities" (Govt. Section 12640,

"Environmental Actions.")

VI

A County's Violation of Air Resources Act

H. & S. Section 39430, May Be Enjoined;

damage unnecessary (H. & S. Section 39437)

A8

"Any violation of any provision of this

article or of any order, rule or regulation

of the regional board may be enjoined on a

civil action brought on the name of the people

of the state of California, except that Plaintiff

shall not be required to allege facts necessary

to show or tending to show lack of adequate

remedy at law or to show or tending to show

irreparable damage or loss" (CH. & S.

Section 394337).

VII

As in previous Section VII, with addition:

"Unless motor vehicle exhaust is successfully

controlled, the Los Angeles area cannot realize

the restoration of acceptable air quality."

(1974 Profile of Air Pollution Control, County

of Los Angeles Air Pollution Control District,

Los Angeles, p. 41.)

A9

JOHN H. LARSON, County Counsel

WILLIAM D. ROSS, Deputy County Counsel

648 Hall of Administration

500 West Temple Street

Los Angeles, California 90012

(213) 974-1927

Attorneys for Defendant

COUNTY OF LOS ANGELES

SUPERIOR COURT OF THE STATE

OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JAMES E. RICHARDS, )NO. CA 00218

a resident of the County )

of Los Angeles, on NOTICE OF HEARING

behalf of himself and all )ON DEMURRER TO

other such residents YTHIRD AMENDED

similarly situated, YCOMPLAINT ;

JDEMURRER TO THIRD

Plaintiff, JAMENDED COMPLAINT ;

JAND MEMORANDUM

A10

vs. OF POINTS AND

AUTHORITIES

COUNTY OF LOS Date: March 17, 1976

ANGELES, et. al., Time: 9:00 a.m.

Dept: 80

Defendants

TO: PLAINTIFF JAMES E. RICHARDS,

IN PRO PER: : |

NOTICE IS HEREBY GIVEN that a demurrer

to the third amended complaint on file herein

has been set for hearing on Wednesday,

March 17, 1976, at 9:00 a.m. or as soon there-

after as counsel can be heard, in Department

80 of the above-entitled court, located at 111

North Hill Street, Los Angeles, California 90012.

Said demurrer will be made on the grounds

(1) the entire third amended complaint, and

each of the seven causes of action contained

therein, fail to state facts sufficient to const-

itute a cause of action against this answering

defendant; and (2) the entire third amended

complaint, and each of the seven causes of

action contained therein are uncertain. The

demurrer will be based upon this notice, the

accompanying demurrer, the memorandum of

points and auhtorities and such other evidence

as counsel may produce at time of hearing.

A11

A12

DATED: March 1, 1976 DEMURRER

JOHN H. LARSON

County Counsel Defendant County of Los Angeles demurs

to the third amended complaint on file herein

on the following grounds:

By

WILLIAM D. ROSS

Deputy County Coynsel

1. The entire third amended complaint,

and each of the seven causes of

action contained therein fail to

state facts sufficient to constitute

a cause of action against defendant

County of Los Angeles; and

° 2. The entire third amended complaint,

and each of the seven causes of

action contained therein are

uncertain.

WHEREFORE, defendant County of Los

Angeles prays that this demurrer be sustained

without leave to amend, that plaintiff take

nothing by his third amended complaint, that

this responding defendant have judgment for

its costs, and for such other and further relief

as this court deems just and proper.

DATE: March 1, 1976

JOHN H. LARSON, County Counsel

A13

WILLIAM D. ROSS, Deputy County

By

WILLIAM D. ROSS, Deputy

County Counsel

Attorneys for Defendant

COUNTY OF.LOS ANGELES

Aik

MEMORANDUM OF POINTS AND AUTHORITIES

Introduction

Under Government Code Section 900 et.

seq., plaintiff is required to plead and prove

compliance with the Government Code's

provisions concerning the presentation of

claims to a public entity. Compliance with the

claim presentation provisions are conditions pre-

cedent to an action against either an employee

of a public entity, or the public entity itself.

As shown on the face of the third amended

complaint on file herein, and as shown by the

following points and authorities, plaintiff has

not met his burden of pleading compliance with

the claim presentation provisions.

Additionally, it is evident from the face of

the plaintiffs third amended complaint, said

complaint fails to state facts sufficient to cons-

ititue a cause of action against defendant

County of Los Angeles and is uncertain and

ambiguous in its entirety.

POINTS AND AUTHORITIES

I

COMPLIANCE WITH THE CLAIM PRO-

VISIONS IS A PREREQUISITE TO ANY

ACTION FOR MONEY OR DAMAGES

Ai5

AGAINST A PUBLIC ENTITY OR

EMPLOYEE OF THE PUBLIC ENTITY.

Government Code Sections 905,

945.4 and 950.2; Neal v. Gatlin

(1973) 35 C.A. 3d 871; Burgdorf

v. Funder (1966) 246 C.A. 2d 443.

II

PLAINTIFF HAS THE BURDEN OF PLEAD-

ING AND PROVING COMPLIANCE WITH

THE CLAIMS PRESENTATION REQUIRE-

MENTS AND THAT A CLAIM WAS PRESENT-

ED AND REJECTED WITHIN THE TIME

PRESCRIBED BY GOVERNMENT CODE

SECTIONS 911.2 AND 911.4.

Magistretti (C.A.) v. Merced

Irrigation Dist. (1972) 27 C.A.

3d 370, Willis v. Reddin (1969)

418 F. 2d 702.

III

PLAINTIFF HAS THE BURDEN OF PLEAD-

ING OR PROVING COMPLIANCE WITH

THE CLAIMS PRESENTATION REQUIREMENTS.

Neal v. Gatlin (1973) 35 C.A. 3d

371, Tietz v. Los Angeles Unified

School District (1969) 238 C.A. 2d 905.

IV

FAILURE TO INCLUDE THE NECESSARY

TREO NC TR

A16

ALLEGATIONS RENDERS THE COMPLAINT

SUBJECT TO GENERAL DEMURRER.

Neal v. Gatlin (1973) 35 C.A. 3d

871; Burgdorf v. Funder (1966)

246 C.A. 2d 443.

"A CLAIM RELATING TO A CAUSE OF

ACTION FOR DEATH OR INJURY TO

PERSON...SHALL BE PRESNTED...NOT

LATER THAN THE 100TH DAY AFTER

THE ACCRUAL OF THE CAUSE OF

ACTION.

Government Code Section 911.2.

"ANY SUIT BROUGHT AGAINST A PUBLIC

ENTITY ON A CAUSE OF ACTION FOR

WHICH CLAIM IS REQUIRED TO BE

PRESENTED...MUST BE COMMENDED:

"(1) IF WRITTEN NOTICE IS GIVEN IN

ACCORDANCE WITH SECTION 913, NOT

LATER THAN SIX MONTHS AFTER THE

DATE SUCH NOTICE IS. PERSONALLY

DELIVERED OR DEPOSITED IN THE MAIL."

"(2) IF WRITTEN NOTICE IS NOT GIVEN

IN ACCORDANCE WITH SECTION 913,

WITHIN THE TWO YEARS FROM THE

ACCRUAL OF THE CAUSE OF ACTION."

Government Code Section 945.6.

Plaintiff has alleged that several claims

were filed with the Board of Supervisors in

A17

war SEAM rae

compliance with Government Code Section 945.4 y

(paragraph 7 of plaintiff's first cause of action).

Yet, upon examination of this paragraph of

plaintiff's third amended complaint, as well as

the balance of said complaint, it becomes

apparent that plaintiff has failed to specifically

allege that the filing dates of his various claims

and subsequent complaint were made within the

time limits prescribed by Government Code

Sections 911.2 and 945.6 cited above. Thus,

although plaintiff alleges compliance with Govern-

ment Code Section 945.4, plaintiff's compli-

ance with the remaining portions of the Tort

Claims Act is not apparent from the face of his

complaint. Defendant has no way of ascertain-

ing timely compliance until plaintiff pleads the

specific dates on which his claims were rejected;

and his complaint was filed. It is noted that

plaintiff has not cured this deficiency in his

complaint three previous attempts all on file

with the court herein.

V

PLAINTIFF'S THIRD AMENDED COM-

PLAINT AND EACH OF THE SEVEN

CAUSES OF ACTION CONTAINED

THEREIN, REVEAL A COMPLETE FAILURE

BY PLAINTIFF TO STATE OR ALLEGE

FACTS SUFFICIENT TO CONSTITUTE A

A18

CAUSE OF ACTION AGAINST DEFENDANT

COUNTY OF LOS ANGELES. SUCH IS A

REQUIREMENT THAT MUST BE SATISFIED

IN THE COMPLAINT, AND IN EACH CAUSE

OF ACTION THEREIN.

Code of Civil Procedure

Section 425.10(a).

VI

PLAINTIFF'S THIRD AMENDED COMPLAINT

IS AMBIGUOUS AND UNINTELLIGIBLE.

Plaintiff's third amended complaint, and

each of the seven causes of action contained

therein, is uncertain in that there is complete

doubt and confusion as to what plaintiff means

by the facts he has alleged. Further, the

amended complaint, and each of the causes of

action set forth therein, is ambiguous in that

all of the allegations contained therein are

not easy of comprehension and are not free

from reasonable doubt as to their meaning.

Lastly, but not least, it is suggested

that the entire third amended complaint, as

well as each of the seven causes of action

contained therein, is unintelligible in that same

does not represent a coherent and orderly

expression of facts that provide meaningful

understanding to others.

A19

CONCLUSION

By reason of the foregoing, it appears

manifestly clear that this responding defendant's

demurrer should be sustained without leave to

amend as to the entire third amended complaint,

and as to each of the seven causes of action

contained therein.

DATED: March 1, 1976

Respectfully submitted,

JOHN H. LARSON

County Counsel

By

WILLIAM D. ROSS

Deputy County Counsel

WDR:mlr

A20

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

PEOPLE OF THE STATE OF _) 2d CIV. 52919

CALIFORNIA, ) (Superior Court

James E. Richards, a ) CA 00218

resident of the County of

Los Angeles, on behalf of

himself, A. Pearson, and all

we

other such residents similarly

situated,

Plaintiff and Appellant,

V.

COUNTY OF LOS

ANGELES,

Defendant and Respondent.

‘a Ne Nt Ne Ne a Ns “Sa

--0--

Appeal from the Superior Court

Los Angeles County

HONORABLE THOMAS W. LESAGE, JUDGE

--Q0--

James E. Richards

555 Rose Ave. - B

Venice, Ca. 90291

839-3535

In Propria Persona

A22

STATEMENT OF THE CASE

. Based on the fact that Los Angeles smog

kills 28 people each day and that smog residue

is detectable in the tissue of every resident

of Los Angeles, plaintiffs from December 24,

1974 through February 28, 1975 filed a total

of 331 claims aginst the defendants for either

timely, efficient protection against smog or

for recovery of damages. Refusing to accept

responsibility, defendants denied the claims.

Subsequently, plaintiffs filed suit in Los

Angeles Superior Court.

This is a class action and an individual

seeking relief from smog by means of a court

order directing the County of Los Angeles to

evolve and adopt a plan to end vehicular smog

within a reasonable time frame and without

economic detriment to citizens, or to pay

damages for the injuries accruing.

The defendants demurred, and were

sustained, contending that the plaintiffs

had filed no claims and that none of the

complaint culd be understood and that no cause

of action had been stated.

In their opposition, plaintiffs noted that

the allegations required by the Torts Claims

Act were fulfilled in Section VII of the First

A23

Cause, Third Amended Complaint (lines 28-32

and 1-5, Clerk's Transcript, pages 2 and 3

respectively) and that the language of the

complaint in roughly 2/3 of the instances was

taken directly from the language of the law

itself and that the complaint stated rights of

plaintiffs violated by denfendants, causing

injury.

The case was appealed. At that time the

defendants based their response on a claim

that a revision of the law removed from the

County responsibility for motor vehicle pollu-

tion. This case was instituted prior to the

enactment of those revisions, however, and the

legislators specifically exempted such suits from

being affected by the revisions. Furthermore,

the plaintiffs asserted that control over and

the condition of the County's own property

was at issue, not merely motor vehicle

pollution.

The Second Appellate District dismissed

the case noting that no final judgment had

been issued by the lower court. They did

not rule on the merits of the case.

Plaintiffs went back to Superior Court,

got final judgment, and refiled this appeal.

We realize the scope of the answer to

this problem may quite possibly be large.

A2h

Nevertheless, the scope of the problem is

definitely large and severe.

Therefore, we want the law enforced.

A25

ARGUMENT AND THE LAW

I

THE DEFENDANTS, IN THEIR STREETS AND

HIGHWAYS, ARE IN ILLEGAL DISCHARGE OF

HARMFUL AIR CONTAMINANTS

"A person shall not discharge from any

source whatsoever such quantities of air

contaminants, smoke, or other material

which cause injury, detriment, nuisance,

or annoyance to any considerable number

of persons or to the public, or which

cause injury or damage to business or

property" (Health and Safety Section

39430, 24243).

COUNTY AS PERSON

"'Person' includes any person, firm,

association, organization, partnership,

business trust, corporation, company,

district, county, city and county, the

state, and any of the agencies and

political subdivisions of the state, or

such entities" (Govt. Section 12640,

"Environmental Actions").

CONCLUSION

Obviously, smog is a substance that

falls under the category of hazardous conta-

minant, and the person, its streets and high-

ways as sources, is guilty.

A26

II

FUMES AND VAPORS CONSTITUTE TRESPASS

Trespass is unauthorized entry and

occupation of land by another (Penal Section

601). “Every unauthorized entry on the

property of another is a trespass" (Bauman v.

Beaujean (1966) 244 Cal. App. 2d 385).

California courts have held that entry on

the property of fumes, vapors, dust or other

harmful foreign matter constitutes an action-

able trespass for which damages may be re-

covered. (Kornoff v. Kingsburg Cotton

Oil co. (1955) 45 Cal. 2d 265, 268-75, 288

P. 2d 507; Roberts v. Permanente Corp.

(1961) 188 Cal. App. 2d 526, 530-31, 10

Cal. Rptr. 519). Trespass may also be

committed by consequential and indirect

injuries. (Coley v. Hecker (1928) 216

Cal. 22, 28, 272 P. 1045; Smith v. Lockheed

Propulsion Co. (1967) 247 Ca. App. 2d 774,

784, 56 Cal Rptr. 128; Gallin v. Polou (1956)

140 Cal. App. 2d 638, 641, 295 P. 2d 958). |

The County's streets and highways are

obviously the source of vehicular fumes to

the air spaces of adjacent properties and

those in consequential line with them.

A

III ”

THE COUNTY MAY BE SUED FOR DAMAGES

ARISING OUT OF A HAZARDOUS CONDITION

OF ITS PROPERTY

CONDITIONS OF LIABILITY

"Except as provided by statute,

a public entity is liable for injury caused

by a dangerous condition of its property

if the plaintiff establishes that the -

property was in a dangerous condition at

the time of the injury, that the injury

was proximately caused by the dangerous

condition, that the dangerous condition

created a reasonably foreseeable risk

of the kind of injury wich occurred,

and that....

"The public entity had actual or

constructive notice of the dangerous

condition under Section 835.2 a sufficient

time prior to the injury to have taken

measures to protect against the dangerous

condition" (Govt. 835).

SMOG ORIGINATING ON COUNTY PROPERTY

FULFILLS SUCH. CONDITIONS

Plaintiff's Third Amended Complaint page 3,

lines 6-29 and page 4, lines 1-15, explicity

fulfill the conditions for stating a cause of action

under Govt. 835.

A28

CONCLUSION

During the last twenty-five years the

County has made feeble efforts to control

air pollution. The combined efforts of local,

state, and federal officials, for example, have

lead to a decrease of only 30% of excessive

ozone in that period. Los Angeles currently

has the worst air in the nation. Los Angeles

County has until January, 1979 to submit a

plan to meet Environmental Protection Agency

standards, but the EPA, without even being

asked, will allow further delay in meeting those

standards until 1982.

The most prominent omission of EPA

is that it overlooks carbon dioxide standards.

For over thirty years scientists, without the

publicity channels of government agents, have

warned of the dangers of CO, buildup, and

most recently have published evidence that

in 10-20 years significant weather changes

due to that factor will have become manifest.

The catalytic converter increases carbon

dioxide emissions.

It should be apparent that our lives

are being threatened and it is our belief

that the County, through the court system,

is the best medium to obtain recourse. We

A29

further believe that the ultimate rights of

18 per day here should not rest in the hand:

of a few appointed agencies with limited

sanctions. And we believe that the best

solution will be found by throwing the

quest open to the public, using an open

forum as described in the court order proposed

in page 49 of the Clerk's Transcript. That

making the public at large a voting member of

the planning board is an eminently feasible

matter is indicated by the TV system now in

use in Columbus, Ohio, reported by the Time

magazine article exerpted in the Appendix.

WHEREFORE, just cause appearing in

behalf of plaintiffs, plaintiffs ask this

Court to direct judgment in favor of plaintiffs.

March 3, 1978 Submitted,

James E. Richards

A30

NOT FOR PUBLICATION

IN THE COURT OF APPEAL

OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

PEOPLE OF THE STATE )2d Civ. No. 52919

OF CALIFORNIA, Sup. Ct. No.CA000218

JAMES RICHARDS, a

resident of the County

of Los Angeles, on

behalf of himself, A

Person,[sic] and all

other such residents

similarly situated,

Plaintiffs and

Appellants

i) | | |

vs.

STATE OF CALIFORNIA,

COUNTY OF LOS

ANGELES, CITY OF

LOS ANGELES,

Defendants and

wes Shae

Respondents

ets

A32

APPEAL from order of the Superior Court

of Los Angeles County. Thomas W. LeSage,

Judge. Affirmed.

James E. Richards, in Propria Persona,

for Appellants.

No appearance for Respondents.

Plaintiff James Richards appeals from an

order dismissing the above entitled action

pursuant to Code of Civil Procedure Section

581.3 as to defendants County of Los Angeles

and City of Los Angeles following the sustain-

ing of a demurrer to his third amended

complaint without leave to amend.

By this action Richards, on behalf of

himself and others similarly situated, seeks a

mandatory injunction to compel the evolution

and adoption of a plan to end air pollution

or in the alternative, damages, together with

attorney's fees and costs of suit. The com-

plaint was filed, the litigation processed and

the appeal taken in propria persona and, for

this reason, poses insurmountable problems of

procedural and substantive law.

We have been furnished with a record

containing copies of the third amended com-

plaint, plaintiff's opposition to the demurrer,

A33

a minute order sustaining a demurrer to the

second amended complaint, the order of

dismissal and notice of appeal. The record,

as designated by plaintiff, does not contain a

copy of the demurrer to any of the complaints,

the minute order sustaining the demurrer

to the third amended complaint or other inform-

ation essential to appellate review of the matter.

The briefing lends little, if any, assistance in

enabling us to comprehend the theory of the

litigation or the propriety of the action taken in

the court below. As was said in Weiss v.

Brentwood Sav. & Loan Assn. (1970) 4 Cal.

App. 3d 738, 746:

"With, at times, well-controlled exasper-

ation appellate courts have pointed out

that when an appellant claims error

occurred in the tyail court, he must

present a record disclosing the efror relied

upon and enabling an appellate court to

review and correct it. He has the burden

of producing @ record which overcomes the

presumption of validity favoring a judg-

ment or order. People v. Wilkins (1959)

169 Cal. App. 2d 27, 31 [386 P.2d 540];

Altman v. Poole (1957) 151 Cal. App. 2d

589, 593 (312, P.2d 6]; Lerno v. Obergfell

(1956) 144 Cal. App. 2d 221 [300 P.2d

846]."

_—

A

Nevertheless, in conformity with the established

policy of this court to hear and dispose of

appeals on their merits whenever possible, we

have augmented the record on appeal to include

the superior court file in People v. County

of Los Angeles, No. CA 000218 in an effort to

rectify defects in the record filed with this

court. (Rule 12a Cal. Rules of Court.)

Our examination of the record as augment-

ed discloses that on March 17, 1976, the trial

court sustained the demurrer of the County of

Los Angeles to the third amended complaint

without leave to amend on the grounds set

forth in the moving papers. The demurrer

was made upon the grounds that the complaint

failed to state a cause of action and was

ambiguous and unintelligible. The points and

authorities in support thereof are directed

primarily at the failure to allege compliance

with the Government Code Sections 905, 945.4

and 950.2 pertaining to presentation of claims

to a public entity as a prerequisite to mainten-

ance of the action.

We have examined the seven causes of

action of this complaint and find the only

allegation regarding the filing of claims to be

in the first and second causes of action and

not incorporated by reference in any of the

A35

others. The allegation reads as follows: "In

compliance with Govt. Code Section 945.4

requiring claims to be filed prior to action

against county, on December 24, 1974, January

22, 1975, and February 28, 1975, a total of

331 claims were filed with the Board of Super-

visors on this matter and selected copies are

already on file herein. Yet damages have

occurred, are still occuring, and will continue

to occur unless certain action is taken by this

court."

Plaintiff's timely filing of a claim containing

the information required by Government Code

Section 910 is a prerequisite to the maintenance

of an action against a public entity for money

damages. (C.A. Magistretti Co. v. Merced

Irrigation Dist. (1972) 27 Cal. App. 3d

270, 274-275.) In the instant action plaintiff's

failure to allege his timely filing of such claim

and its rejection rendered the third amended

complaint ineffective and the demurrer thereto

was properly sustained, at least insofar as

damages are concerend. A claim is unnecessary

where the complaint only seeks an injunction.

However, we note that the demurrer was

also grounded upon the complaint being un-

certain, ambiguous and unintelligible and

was also sustained on those grounds. We

+ Aes ar eee

A36

agree that such is the case and that plaintiff's

inability to state his causes of action in form

and substance calculated to advise the court of

legally sufficient causes of action after three

amended complaints also justified dismissal of

the action without leave to amend. (Cf.

Hills Trans. Co. v. Southwest Forest

Industries, Inc. (1968) 266 Cal. App. 2d

702, 709.)

The order of dismissal is affirmed.

NOT FOR PUBLICATION.

ALLPROT, J.

We concur:

COBEY, Acting P.J.

POTTER, J.

I have read Government Code Section 835,

I have read the plaintiff's Third Amended

Complaint, Second Cause of Action, entitled

"Dangerous Condition of Public Property,"

I believe the Second Cause of Action alleges

sufficient facts to constitute a cause of

action against the County of Los Angeles

under the conditions set forth in Government

Code Section 835

(keen oe paste La oes A. Kreck) ie its

AF

7

om

NOV 161978

Los Angeles, Cal

People of the State of California,

TITLE James E, Richards

THE COURT:

Petition for rehearing denied,

19

CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

San Francisco, CALIFORNIA 94102

NEC 7 Nw

TIT

I have this day filed Order

{ A! Sang on

2 Civ.

in re:_= No

people

vs.

County of Los Angeles

Respectfully,

G. E. BISHEL

Clerk

€3421-877 €.78 4m OSP

IN THE

SUPREME COURT OF THE UNITED STATES

Spring Term, 1979

PEOPLE OF THE STATE OF CALIFORNIA,

JAMES E, RICHARDS, et al, etc.

Ve

COUNTY OF LOS ANGELES

Certificate of Service

I hereby certify that on this 3rd day

of April, 1979, 3 copies of the Petition

for Writ of Certiorari were mailed, postage

prepaid, to William D. Ross, Deputy County

Counsel, 500 W. Temple, Los Angeles, CA 90012,

and 1 copy to the Attorney General, Sacra-

mente, CA,

, Peas. : te Me

gare , fa? Es

j i

James E. Richards

4° Sunset #1

Venice, CA 90291

Pro Se

AN EE ELIE LEE

ee Recto a