Petition for Writ of Certiorari — Gaceta v. County of Santa Clara

Supreme Court brief1990

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

MERCEDES L. GACETA, AND NORMAN R. VUNCK,

Petitioners,

COUNTY OF SANTA CLARA, et al

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Mercedes L. Gaceta

Norman R. Vunck

Pro se

Post Office Box 32008

San Jose, CA, 95152

(408) 272-5601

February 1990

QUESTIONS PRESENTED

The California Constitution provides no Fourth

Amendment “probable cause” hearing for misdemeanor

arrestees and statute limits “probable cause” hearings to

only those who are encarcerated prior to arraignment.

A California magistrate is a position created by statute

whose jurisdiction is specified by statute and who need

not be a member of the bar.

The misdemeanor complaint against petitioners was

dismissed due to lack of jurisdiction.

Petitioners appeared specially before a magistrate,

prior to arraignment, under express statutory provisions

to object to the jurisdiction of the court. The magistrate

rejected petitioners special appearance, did not comply

with the statutory requirement that the magistrate either

discharge arrestees or issue a warrant for arrest, and

orally ordered bailiffs to seize petitioners and place them

in jail, which bailiffs did, without a warrant.

1. The question is, whether the magistrate, under the

above conditions is entitled to absolute judicial immunity

to a suit claiming civil damages arising from his acts.

2. The question is, whether a police officer who

charges a person with a crime for which he knew that he

did not have probable cause, and the magistrate did not

issue a warrant, is immune to a suit for damages arising

from his acts.

3. The question is, whether a federal employee who

made a citizen’s arrest for trespassing on a road in which

neither he nor the United States had any possessory

interest is immune to suit for damages directly under the

Constitution because he did not know the road was open

to the public.

LIST OF PARTIES RULE 28.1!

The parties to the proceedings below were the Plaintiffs,

Mercedes L. Gaceta and Norman R. Vunck.

The Defendants were John Alan Koone, a federal

employee, John C. Contreras, a Santa Clara County Deputy

Sheriff, Kevin J. Murphy and Nancy Hoffman, judges of the

Municipal Court of Santa Clara County, Georgia Anderson, a

bailiff, James Sugiyama, a court reporter, Steven Woodside, a

county attorney and the County of Santa Clara, California.

All of the above named are respor ents before this court.

— ae

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF AUTHORITIES

TABLE OF APPENDICES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

ARGUMENT

IV.

The Road Upon Which Mercedes Gaceta

and Norman Vunck Were Arrested For

Trespassing Is Open To The Public By

All Measures Of Definition

When Dwayne Koone Arrested Vunck and

Gaceta He Not Only Did Not Have Probable

Cause To Make The Arrest, He Violated

Every Provision Of The Law Under Which

He Made The Arrest.

John Contreras Filed A Misdemeanor

Complaint In The Municipal Court Based On

Hearsay From John Koone And For Which,

He Stated In A Declaration, He Knew He

Did Not Have Probable Cause To Arrest

Gaceta and Vunck.

California Misdemeanor Arraignment

Procedures Statutorily Denies Fourth

Amendment Due Process Of Law.

The Right To Due Process Is Absolute.

sa~a wn

Vi.

VIL.

IX.

Magistrate Kevin Murphy Did Not Obtain

Personal Jurisdiction Over Vunck And

Gaceta By Means Of Their Special

Appearance Under The Provisions Of

Code Of Civil Procedure 814.10

A Magistrate Is Neither A Court Nor A

Judge. The Jurisdiction Of A Magistrate

It Limited By Statute. Kevin Murphy, By

His Own Admission Was Sitting As A

Magistrate.

Kevin Murphy, Sitting As A Magistrate,

Without Either Personal Jurisdiction Over

Petitioners Or Subject Matter Jurisdiction

Over The Offense, Refused To Examine The

Complaint Before Him To Determine If

There Were Probable Cause To Issue An

Arrest Warrant And Orally Ordered The

Arrest And Incarceration Of Petitioners

Without A Warrant.

Magistrate Kevin Murphy Did Not Have

Absolute Judicial Immunity And Is Not

Immune To Civil Liability For Damages For

Depriving Gaceta And Vunck Of Their

Fourth Amendment Rights.

Hearings Subsequent to Kevin Murphy.

TABLE OF AUTHORITIES

Cases: Page

Antilla v Justice’s Court of Big RiverTownship

(1930) 209 C 621 15

Balestra v Button (1942) 54 CA 2d 192 10

Boggs v North American Bond & Mortgage Co.

(1937) 20 CA 2d 316 21

Brill v Los Angeles County (1941) 16 C2 726 21

Callahan v Martin, 3 C 2d 110; 101 ALR 871 10

Capeoman v Reed, 754 F2d 1512 (9 Cir 1985) 14

Carey v Piphus (1978) 435 US 247 20

Carroll v United States (1924) 267 US 132 12,17

Carstans v California Coastal Comm. (1986)

182 CA 3d 277 10

Cervantez v JC.Penny Co, (1979) 24 C 3d 579 12, 22

Cline v United States, (9 Cir 1925) 9 F2 621 11

Cramp v Board of Public Instruction (1961)

368 US 278 15

Elliott v McCombes (1941) 17 C 2d 23 10

People v Flemming (1981) 29 C 3d 749 6

Ex parte Greenall (1908) 153 C 767 15

Ex parte Tom Tong (1883) 108 US 556 22

Franks v Delaware (1978) 438 US 154 5, 7, 18, 25

Gerstein v Pugh (1975) 420 US 103 4, 7, 18, 19

25, 26, 28

Goodwine v Superior Court (1965) 63 C 2d 481 22

Harlow v Fitzgerald, (1982) 457 US 80018, 27

Hewitt v Meaney (1986) 181 CA 3d 361 10

Hoyt v Hart (----) 149 C 72 28

Hughes v Orb (1951) 36 C 2d 854 22

Illinois v Gates (1983) 462 US 213 15

In re Alonzo (1979) 87 CA 3d 710 15

In re Central Irr. Dist, 117 C 382 24

In re Geer (1980) 108 CA 3d 1007 23

In re Johnson (1965) 63 C 2d 325 20

In re Meisner (1939) 30 CA 2d 290 15

In re Smiley (1967) 66 C 2d 606 19

In re Walters (1975) 15 C 3d 738 4, 15, 18, 19

25, 26, 28

Johnson v MacCoy 278 F2d 37 (9 Cir 1960) 6, 27

Johnson v Zerbst (1938) 304 US 458 20

Keeler v Superior Court (----) 2 C 3d 619 20

Lander v Flemming (1874) 47 C 614 24

Lay v Superior Court, 11 CA 558 24

Lightner Mining Co. v Lane (1911) 161 C 689 16

Lyman v Milton, (1872) 44 C 630 24

Malley v Briggs (1986) 106 S Ct 1092 17

Map v Ohio (1961) 367 US 643 17

Martin v Alcoholic Beverage etc. Appeals Bd.

(1961) 55 C 2d 867 28

McNutt v General Motors (1936) 298 US 178 24

Monell v New York City Dept of Soc. Srves.

(1978) 436 US 658 19

Morse v Municipal court (1974) 13 C 3d 149 28

Olcese v Justice’s Court (1909) 156 C 82 22

Pasadena v California - Michigan etc. Co.

(1941) 17 C 2d $57 8,9

People v Brite 9 C 2d 666 22

People v Case (1980) 105 CA 3d 826 6, 23

People v Cheatham (1975) 50 CA 3d 592 13

People v Chew Lan Ong (1904) 141 C 550 20

People v Cohen (1897) 118 C 74 22, 23, 27

People v Craig (1881) 59 C 370 12

People v Crespi (1896) 115 C 50 23

People v Cressey (1970) 2 C 3d 836 18

People v Curtis (1969) 70 C 2d 347 12

People v Davis (1984) 161 CA 3d 796 28

People v Flemming (1981) 29 C 3d 698 6, 27

People v Heldt (1985) 163 CA 3d 532 20

People v Lee Look (1904) 143 C 216 6

People v Maggoria (1962) 207 CA 2d Supp. 908 17

People v Medrano (i978) 78 CA 3d 1S° 16

People v Peters (1978) 21 C 3d 749 6, 23

People v Privett (1961) 55 C 2d 698 22

People v Sesslin, 68 C 2d 418 15

Vii

People v Smith (1983) 34 C 3d 251 5, 18, 25

People v Smith (1850) 1 C 9 20

People v Sweetser, (1977) 72 CA 3d 278 9, 16

: People v Tideman (1962) 57 C 2d 574 28

People v Uklemann (1973) 9 C 3d 662 23

People v Ward (1986) 188 CA 3d Supp 11 19

Porter v City of Los Angeles (1920) 182 C. S15 16

Pousson v Superior Court In and For

San Diego County (1958) 165 CA 2d 750 26

Reid v Georgia (1980) 448 US 438 13

Rescue Army v Municipal Court (1946)

28 C 2d 460 20

Rios v United States, (1960) 364 US 253 ll

Robins v Harum 773 F2d 1004 (9 Cir 1985) 13

Rogers v Superior Court of Alameda County

46 C 2d3 15

Satlas v Muni Ct of San Leandro

(1978) 150 CR 543 20

Select Base materials v Board of Equal.

(1975) 51 C 2d 640 15

Sidney V. Smith v Grace E. Worn (1892) 93 C 206 9

Smith v Cap Concrete, Inc. (1982)

113 CA 3d 769 8, 16, 24

Smith v Westerfield (1891) 88 C 374 24

Taormino v Denny (1970) 1 C 3d 679 10

Tennessee v Garner (1984) 417 US 1 13

Town of South Ottawa v Perkins (1876) 84 US 260 28

United States v Di Re, (1948) 332 US 581 14

United States v Ford (1926) 273 US 593 20

United Sates v Di Re (1947) 332 US 581 ll

United States vy Watson (1976) 423 US 411 12

Ward v County of San Diego County

791 F 2d 1329 (9 Cir 1986) 14

Ward v United States 316 F2 113 (9 Cir 1963) il

Wells v Justice Court (1960) 5 CR 204 22

Woods- Drury, Inc. vy Superior Court

(1936) 18 CA 2d 340 24

Vili

UNITED STATES CONSTITUTION

First Amendment of the U.S. Constitution 1, 2

Fourth Amendment of the U.S. Constitution 1, 2, 4, 6

7, 15, 18, 19, 26

STATUTES

United States |

18 USC 13 Laws of states adopted for areas within federal

jurisdiction 1,8

28 USC 1254(1) 8

40 USC 255 ... Federal jurisdiction over acquisitions. 1, 8

43 USC 1983 Civil Action for Deprivation

of Rights. 1,2

California

Code of Civil Procedures

CCP § 22 Special Proceedings 24

CCP § 187 20

CCP § 321 10

CCP § 418.10 Objection To Jurisdiction 5, 6, 21, 23

24, 25, 28

Penal Code

PenC § 142 Officer Refusing to Receive or Arrest

Criminal 17

PenC § 170 Maliciously Procuring Warrant

to Search or Arrest 17, 18

PenC § 602(n)(2) Trespassing 4,11, 16,17

PenC § 740 Public Offenses Prosecuted

by Written Complaint. 20

PenC § 807 Magistrate Defined 23

PenC § 837 Arrest by A Private Person 17

PenC § 849 Duty of Officer to Take Accused

Before Magistrate - Release from Custody 22

PenC § 950 Formal Parts of Accusatory Pleading 20

PenC § 853.6 Citations for Misdemeanors Under State

Law - Release or Nonrelease. 20, 22, 23, 26

PenC § 853.9 Filing a Complaint After Citation 5, 20

PenC § 959 Allegations Deemed Sufficient

PenC § 976 Court of Arraignment - Defendant's

Right To Telephone Calls 23

PenC § 988 Who May Arraign and Form

of Arraignment 23

PenC § 991 Procedures for Determination of

Probable Cause 4, 5,19, 21

PenC § 1004 Grounds [For Demurrer]} 20

PenC § 1012 Objections Which Must Be Taken

by Demurrer 5, 20

PenC § 1427 Warrant of Arrest or Summons

to Corporation 26

OTHER AUTHORITIES

Judicial Council of California, Annual Report, 1989 7

Judicial Council of California, Notes toCCP§ 418.10 22

20 ALR2d 796, Effect of provisions designating

or referring to persons entitled to use

right of way created by express grant. 10

Law of Real Property, Gallaghan & Co. (1939),

H.D. Tiffinay - Property 3d ed. Ch. 14,

Sec. 803, Vol 3 9

Opinion of the Attorney General (1969) Vol. 52 17

United States Army Corps of Engineers, Map, 10, 12, 14, 16

APPENDIX

Appendix: Analysis of Penal Code Sections. 7, 20

moO 7

TABLE OF APPENDICIES

OPINION OF THE COURT OF APPEALS

DWAY NE ALAN KOONE: ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT

KEVIN MURPHY: ORDER DISMISSING

DEFENDANT MURPHY

IN RE NANCY HOFFMAN, JAMES SUGIYAMA,

ORDER GRANTING MOTIONS TO DISMISS

IN RE JOHN CONTRERAS, GEORGIA

ANDERSON, STEVEN WOODSIDE, COUNTY

OF SANTA CLARA: ORDER GRANTING

CERTAIN DEFENDANT’S MOTIONS FOR

SUMMARY JUDGMENT

STATUTES OF THE UNITED STATES AND

CALIFORNIA

ANALYSIS OF CALIFORNIA PENAL CODE IN RE

MISDEMEANOR COMPLAINTS

REFERENCES TO THE RECORD

In The

Supreme Court of the United States

October Term, 1989

Mercedes L. Gaceta,

Petitioner,

Vv.

County of Santa Clara,

Respondent.

Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

OPINIONS BELOW

The opinion of the court of appeals is not reported and

appears in Appendix A. The memorandum decisions of the

United States District Court for the Central District of

California (Aguilar, R.P) appear in Appendices as follows:

Koone; App. B,’ Murphy; App. C, Hoffman and Sugiyama;

App. D, Anderson, Contreras, Woodside and Santa Clara

County; App. E.

JURISDICTION

Invoking federal jurisdiction under the First and Fourth

Amendments of the U.S. Constitution and 42 USC. Sec. 1983,

the petitioner brought this suit in the Central California

Division of the Ninth District Court on June 21, 1985 against

one federal and several state employees. In the period July 25,

1985 to September 8, 1987, the District Court issued a series of

summary judgments dismissing all of the defendants.

The judgment of the United States Court of Appeals for

the Ninth Circuit was entered on August 17, 1989. A timely

petition for rehearing was denied on October 13, 1989.

Petitioner’s motion for enlargement of time to file this

Petition for Certiorari was partially granted on December 12,

On December 12, 1989, Justice O'Connor ordered that the

time for filing this petition for writ of certiorari be extended

to and including February 10, 1990.

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Constitution, Amendment |

Restrictions on the Power of Congress

Congress shall make no law respecting § an

establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of

grievances.

L.S. Constitution, Amendment IV

Seizures, Searches and Warrants

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Lnited States Code, Title 42:

Sec. 1983. Civil Action for Deprivation of Rights.

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person-withim the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Consutuuon and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this section,

any Act of Congress applicable exclusively to the District

of Columbia shall considered to be a statute of the

District of Columbia.

STATEMENT OF THE CASE'

Norman R. Vunck and Mercedes L. Gaceta are husband

and wife. Vunck has lived in the Santa Clara County for

thirty years and Gaceta, for 21 years. Neither heretofore had

any criminal record.

Ms. Gaceta is employed as a business analyst for a large

retailer and has a masters degree in mathematics from Saint

Louis University, Manila, Philippine Islands.

Mr. Vunck is a business operations analyst and electronics

computer engineer. He spent ten years as a consultant to the

General Staff of Sth Air Force in Japan. He has been

program manager for several military engineering and

development projects such as the F-105 Weapons System,

Minuteman Missile Program, Mariner Deep Space Probe,

and the Midas Stationary Geo-orbiting Satellite Program. Mr.

Vunck is generally familiar with Air Force Regulations and

General Services Administration (GSA) procurement and

divestiture policies and procedures.

Mercedes Gaceta and Norman Vunck were arrested for

trespassing. In period from June 24 to September 21, 1984

when the following events occurred, Gaceta and Vunck were

engaged in establishing an electronic engineering and

manufacturing business in Canada. Due to being held in

constructive custody for two months and forced to appear at

several hearings in the Municipal Court and forcing them to

engage in extensive legal research in order to prepare legal

documents, Vunck and Gaceta were prevented from traveling

to Canada to attend to vital business operations, which

caused Vunck and Gaceta to suffer an out-of-pocket loss of

1. Note (numbers) refer to references to the record listed in the

Appendix of Docket References.

ee TT ee ee, eee

over fifteen million dollars.

The Municipal Court misdemeanor complaint charging

Vunck and Gaceta with trespassing was terminated in favor

of Vunck and Gaceta three months after their arrest, by

dismissal of the charges for lack of jurisdiction.(9)

A federal employee, Dwayne Alan Koone arrested

petitioners Vunck and Gaceta by citizen’s arrest for trespass

on Mt. Umunhum Road, a road which leads to state owned

public park land.19, 7.1) The public is generally invited to

use the public park land by publicly distributed brochures,

and is invited to use Mt Umunhum Road to reach the park

land.(18, 21) Neither the federal employee Koone nor the

Federal Government had any possessory interest in either Mt.

Umunhum Road or the land underlying the road.(29, 23)

Mt. Umunhum Road is open to the public by every

definition.

A County deputy sheriff, John Contreras, responded to a

call for assistance from Koone.(7.3, 19) Contreras filed a

verified misdemeanor complaint against Vunck and Gaceta

in the Municipal Court charging Vunck and Gaceta with

misdemeanor trespassing based upon information from the

federal employee Koone: a misdemeanor which the deputy

sheriff Contreras states in a declaration, he did not witness

and for which states he had no authority to make an

arrest.(7.3, 19, 8)

The affidavit in the complaint filed with a magistrate in

the Municipal Court by Contreras stated:

“PC 602(n)(2) TRESPASSING”

No affidavits or any other information were included with

the complaint(8)

The US. Supreme Court and California Supreme Court

have held that al] misdemeanor arrestees are entitled by the

U.S. Constitution Fourth Amendment to a hearing to

determine if there is probable cause for their arrest. Gerstein

v Pugh (1975) 420 US 103, 111 - 114; 43 L Ed 2d 54; 95S Ct

854; In re Walters, (1975) 15 C 3d 738, 742; 126 CR 239; 543

P 2d 607,

However, California Penal Code Section 991 Procedures

RRA a A TS.

for Determining Probable Cause, restricts Fourth

Amendment “probable cause” hearings to only those

misdemeanor arrestees who are encarcerated at the time they

appear before the magistrate at arraignment.

Vunck and Gaceta were not encarcerated and therefore

under the provisions of PenC § 991, were not entitled to a

hearing to determine if there were probable cause for their

arrest.(7.3, 19, 8)

The United States Supreme Court and the California

Supreme Court have held that every defendant has a Fourth

Amendment Constitutional right to a pretrial hearing to

challenge the veracity of an affidavit underlying a complaint.

Franks v Delaware (1978) 438 US 154, 437; 98 S Ct 2674; 57

L Ed 2d 667; People v Smith (1983) 34 C 3d 251, 258-9.

In the case of a misdemeanor, neither the California

Constitution nor the California Legislature provide a direct

statutory forum within the Penal Code whereby a person

arrested without a warrant for an alleged misdemeanor may

challenge the probable cause for their arrest, or challenge the

veracity of the affidavit in the complaint filed against them.

The California Penal Code Section 853.9(b) Filing

Complaint After Citation, states that a complaint ts legally

sufficient if it is written on a form approved by the Judicial

Council and a Penal Code number triable in the municipal

court is written legibly on it.

For a misdemeanor, the only method within the Penal

Code whereby an illegal arrest and unconstitutional

complaint may be challenged is by a motion for arrest of

judgment after trial and conviction. No redress whatsoever is

available for those who are tried and found innocent. See

California Penal Code Section 1012.

In order to claim their Constitutional rights to due

process of law, Vunck and Gaceta appeared specially before

the magistrate and initiated statutorily mandated special

proceedings in the Municipal Court of Santa Clara County,

California under the provisions of California Code of Civil

Procedure § 418.10, Objection to Jurisdiction, to assert that

the court did not have personal jurisdiction over them

because Vunck and Gaceta were illegally arrested and

because the complaint filed against them was

unconstitutional.(14)

The People of California, prosecuting attorney, did not

object to petitioner’s motion initiating a special appearance

before the magistrate. (He was not present in the court

room.(13)

Judge Kevin Murphy, by his own admission, was sitting

as a magistrate.(12.1) A magistrate is not a court and is not a

judge. People v Peters (1978) 21 C 3d 749, 753; 147 CR 646;

$81 P 2d 651; People v Flemming (1981) 29 C 3d 698, 703;

175 CR 604; 631 P 2d 38; Johnson v MacCoy 278 F2d 37, 38

(9 Cir 1960). And the filing of a complaint with a magistrate

does not initiate a criminal proceeding, it is merely an

application for a warrant. People v Case (1980) 105 CA 3d

826, 833-4; 164 CR 826; People v Lee Look (1904) 143 C 216;

76 P1028. ;

The magistrate, Kevin Murphy, stated that it was legally

impermissible for a defendant to make a special appearance

to challenge the jurisdiction of the Municipal Court and

refused to recognize the special appearance of petitioners or

the statutorily mandated special proceeding under CCP §

418.10, to determine if there were probable cause for the

arrest of petitioners or if the complaint filed against them

were Constitutional.(11)

The magistrate did not read a charge to petitioners, set

bail at $4000, the magistrate did not issue statutorily and

Constitutionally mandated arrest warrants for petitioners

before he orally ordered the bailiffs to seize Vunck and

Gaceta.(11, 15)

The bailiffs seized Vunck and Gaceta without warrants

and at the County Jail, the bailiffs charged Vunck and Gaceta

with trespassing in the municipal court, took their pictures

and fingerprints, removed all their clothing and personal

possessions, attached prison identification to their bodies,

issued prison clothing and bedding, encarcerated them in

prison cells together with convicted prisoners and entered all

of this information in the state’s permanent criminal

computer data base.(15)

REASONS FOR GRANTING THE WRIT

This case is important because the outcome effects the

Fourth Amendment rights of all of the citizens of California.

The sections of the California Penal Code,’ as they pertain to

misdemeanors,’ are effectively a “Catch 22” which not only

prevent citizens from obtaining their Fourth Amendment

Constitutional rights to pretrial determination of the

sufficiency and veracity of the complaint lodged against

them, as held by the U.S. Supreme Court in both Franks v.

Delaware and Gerstein v. Pugh, (supra) but also prevent

citizens from redress for denial of their right to due process

of law.

The criminal complaints against Vunck and Gaceta filed

in the Municipal Court of Santa Clara, which is the

wellspring of this civil rights action, were dismissed due to

lack of jurisdiction. If the Municipal Court did not have

jurisdiction at the end of the proceedings, it clearly did not

have jurisdiction at the beginning.

ARGUMENT

|. The Road Lpon Which Mercedes Gaceta and Norman

Vunck Were Arrested For Trespassing Is Open To

The Public By All Measures Of Definition

Santa Clara County is known as Silicon Valley and is

situated thirty-five miles south east of San Francisco,

California. Mt. Umunhum (An indian word meaning

“hummingbird”.) is the highest peak in the Santa Cruz

Mountains to the south, which contains the valley.(29)

There is a road called Mt. Umunhum Road which extends

from the valley floor to the top of Mt. Umunhum.

In 1955, the Air Force established an early warning radar

station on the peak of Mt Umunhum called Almaden Air

Force Station. The Air Force built a dependent housing

facility on the Air Station for the families of the military

2. See Appendix, Analysis of Penal Code Sections.) as they pertain to

misdemeanors

3. 763,882 non-traffic cases in 1988: 1989 Annual Report, Judicial

Council of California.

personnel stationed there.(3)

In 1981, the Air Force closed the Air Station and

relinquished jurisdiction to the General Services

Administration for disposal as surplus property.(6)

In the absence of United States acquisition of Federal

jurisdiction over land purchases in accordance with 40 USC

255, . . . Federal jurisdiction over acquisitions, the laws

governing real estate owned by the United States government

is controlled by the laws applicable to real estate in the state

in which the property is located under the provisions of 18

USC 13, Laws of states adopted for areas within federal

Jurisdiction. Smith v Cap Concrete, Inc., 113 CA 3d 769; 184

CR 308 (1982)

The General Services Administration Attorney's Final

Title Opinion states at paragraph 2:

“2. Legislative jurisdiction of the United States of

America: There is no evidence that the United States

has accepted partial or exclusive jurisdiction over the

land in accordance with Section 255 revised statute,

amended | February 1940, 54 Stat. 10; Act of 9 October

1940 (54 Stat. 1083; 40 USC 255). It is therefore

concluded that the United States has only proprietorial

jurisdiction.”(20)

At the time that the Air Station was built in 1955, the US.

Army Corps of Engineers purchased by Grant Deed, in the

name of the United States, from each of seven fee holders,

“Rights of Way for the purpose of a road” over an existing

dirt road and paved the road that extended eleven miles

through uninhabited country from the valley floor to the

peak of Mt. Umunhum.(22, 20, 4)

When an easement is founded upon a grant, only those

interests expressed in the grant and those necessarily incident

thereto pass from the owner of the fee. The owner of the

servient tenement may make any use of the land that does

not interfere unreasonably with the easement. Hoyt v Hart

(----) 149 C 722; 87 P S69; Pasadena v California - Michigan

etc. Co. (1941) 17 C 2d 557, 578-9.

In the absence of express restriction in a grant, it

wv. Samra hele 464108 < s

seems that all persons who can be regarded as having

permission, express or implied, to enter on the

dominant tenement, may use a way for the purpose of

access to such tenement and of egress therefrom.

Consequently, members of the family of the dominant

owner, his servants and employees, his guests, and

tradesmen and other persons with whom he does

business, may do so. Such persons are not guilty of

trespass in using the way, and the owner of the

easement would, it seems, have a right of action in

case there was an interference with the use of the way

by a member of one of these classes. Law of Real

Property, Gallaghan & Co. (1939), H.D. Tiffinay -

Property 3d ed. Ch. 14, Sec. 803, Vol 3, p. 322, $326

Rights of way based on grants - Rights as to use.

(Citations omitted.); Pasadena v California - Michigan

etc. Co. (1941) 17 C 2d 557, 578-9.

There is no restrictive language whatsoever in any of the

grant deeds to the US. Government for a right of way “for

the purpose of a road” for Mt. Umunhum Road.(22)

In California, a right of way “for the purpose of a road”

which is obtained by grant deed is a special kind of right of

way which is “open and unobstructed”, precludes erecting

any gates or obstructions across the road, and shall be open

to the public unless explicitly qualified in the Grant Deed by

some adjective such as “private”. (Sidney V. Smith v Grace E.

Worn (1892) 93 C 206, 214.) In California, a right of way for

a road owned by any governmental entity is a public road

and whoever uses the road within the grant is not a

trespasser. People v Sweetser (1977) 72 CA 3d 278, 285,

disapproved on other grounds: Labor: 29 C 3d 307; 172 CR

720; 625 P 2d 263.

The Mid-Peninsula Regional Open Space District

(MPROSD) is a political subdivision of the State of

California.(32) The publicly stated purpose in the charter

under which MPROSD was established by the voters by

public election, was to preserve open space for the

recreational use of the public.(18)

Mt. Umunhum Road has existed as a road since 1906.(30)

and is appurtenant to the land owned by MPROSD (Hewitt v

Meaney (1986) 181 CA 3d 361; 226 CR 349) and in addition,

in 1952, when the US. Corps of Engineers bought the right

of way over Mt. Umunhum Road from Frances C. Diterich,

she explicitly included a clause in the grant, which gave her

and her heirs and assigns, joint usage of Mt. Umunhum Road

with the Federal government.(5) In 1980, four years prior to

this incident and a year prior to the closing of the Almaden

Air Force Station, MPROSD obtained this property, which

has a common boundary with the entire eastern end of the

Almaden Air Station,(31) from the estate of Frances C.

Diterich. This land is included in the park land open to the

public.(18)

The purchase of an easement over the property of

another does not convey to the purchaser @ominant

tenement) any rights to title or possessory interest in the

land over which the easement traverses (servient tenement).

The right of the dominant tenement (United States) on the

easement is no greater than that of the servient tenements

(land owners) Carstans v California Coastal Comm. (1986)

182 CA 3d 277, 287; 227 CR 135; Elliott v McCombes (1941)

17 C 2d 23, 30; 109 P 2d 329; 20 ALR2d 796, Effect of

provisions designating or referring to persons entitled to use

right of way created by express grant.

Whether an easement is appurtenant or in gross, it is not

personal property. Balestra v Button (1942) 54 CA 2d 192,

197: Callahan v Martin, 3 C 2d 110, 121-2; 43 P 2d 788; 101

ALR. 871.)

From 1972 to 1984, MPROSD had accumulated more

than S000 acres of park land at the summit of Mt.

Umunhum to which the public is generally (specifically)

invited and the public is invited to use Mt. Umunhum Road

to reach the park land.(18, 21)

In order for a road to become a public road through

prescription the road must be subject to open and notorious

adverse use for a period of five years. California Code of

Civil Procedure Sec. 321. Taormino v Denny (1970) 1 C 3d

eimai

679; 83 CR 359; 463 P 2d 711. After Mt. Umunhum Road

was paved by the US. Corps of Engineers, it remained open

to the public and wholly unrestricted during the nearly thirty

years that the Air Station was in operation.(33, 34)

At the time that Vunck and Gaceta were arrested by

Koone, the General Services Administration and the Mid-

Peninsula Regional Open Space District each owned rights

of way over Mt. Umunhum Road for the purpose of a road

(5) and these are both government entities. The rights of way

were both appurtenant and en gross.

Subsequent to the closing of Almaden Air Station, one of

the land holders, Loren McQueen, built a gate across the

road to prevent the public from reaching communications

antennas at the summit of Mt. Umunhum, which he

owns.(35, 29, 23)

Il. When Dwayne Koone Arrested Vunck and Gaceta He

Not Only Did Not Have Probable Cause To Make

The Arrest, He Violated Every Provision Of The

Law Under Which He Made The Arrest.

“... resolution of the question [of the lawfulness of the

arrest] requires a particularized evaluation of the

conduct of the officers involved.” Rios v United States,

1960, 364 US 253, at page 255, 80 S Ct 1431, at page

1433, 4 L Ed 2d 1688.

The Ninth Circuit has stated in Ward v United States, 316

F2 113 (9 Cir 1963):

“The procedure for making arrests which obtains

under the state practice is applicable to arrests made for

crimes against the United States.” Cline v United

States, (9 Cir 1925) 9 F2 621, and cases cited; “No act

of Congress lays down a general federal rule for arrest

without warrant for federal offenses. United States v

Di Re, (1948) 332 US 581 at 591, 68 S Ct 222 at 227, 92

L Ed 210.”

Dwayne Koone is a federal employee. He made a citizen’s

arrest of Vunck and Gaceta without a warrant to enforce a

state statute, Penal Code § 602(n)(2), Trespassing.(10)

The employment contract of Dwayne Alan Koone does

not include making arrests for any purpose. The job

description states at paragraph e. “Serves as security guard at

site by reporting to supervisor and county sheriff any

trespassers on the property.”(39)

A citizen may arrest another for a misdemeanor only

when the offense has actually, in fact, been committed or

attempted and also has been committed in his presence.

Cervantez v C.Penny Co, (1979) 24 C 3d 579, 587; 156 CR

198; 595 P 2d 975; Carroll v United States (1924) 267 US 132,

156 - 157; United States v Watson (1976) 423 US 411, 423,

Note Sb; 46 L Ed 2d 598; 96 S Ct 820.

The United States Attorney filed a statement with the

District Court stating that Dwayne Alan Koone was on

official duty at the time that he made the arrest of Gaceta

and Vunck.

The California Supreme Court has held that there is no

duty to make a false arrest. People v Curtis (1969) 70 C 2d

347, 354; 74 CR 713; 450 P 2d 33; People v Craig (1881) 59 C

370.

On Sunday, June 24, 1984, Mercedes Gaceta and Norman

Vunck were traveling on their motorcycle on Mt. Umunhum

Road. Near the summit they came to a gate crossing the

road(36) built by Loren McQueen separating the property of

McQueen (Tract A-104E-2) from that of his neighbor to the

south, the heirs of L.A.E Grippenstraw (Robert Barlow)

(Tract A-10SE-1) (See maps and tract register copies of which

have been lodged with the clerk.)(29, 23) Mr. Vunck

approached the gate from the south. (Tract A-105E-1).

On the north side of the gate, on the property belonging

to Loren McQueen (Tract A-104E-2), Dwayne Koone sat in a

civilian pickup truck with US. Government license plates

and no other marking.(11.1, 19) The McQueen gate(36) is

shown on the map of the U.S. Army Corps of Engineers(29,

23) to be 0.82 miles on Mt. Umunhum Road from the gate

which enters Almaden Air Station (Tract A-100-2)(38) which

was the place of employment of Dwayne Koone.(38)

When Mr. Vunck approached Dwayne Koone, Mr. Koone

stated that Mr. Vunck was trespassing on private property

and would have to leave. When Mr. Vunck refused to leave,

Dwayne Koone said to his companion, John Woody: “Call

the sheriff and tell them that we have another citizen’s

arrest.”(19, 11.1)

John Woody departed to call the sheriff. Santa Clara

County Deputy Sheriff John Contreras has stated in his

Sheriff's Incident Report and in his Declaration(19, 11.1) that

he received a radio message that two persons had beet-taken

into custody at Mt. Umunhum Road and was ordered to

proceed to that place.

As soon as John Woody departed to call the sheriff, Mr.

Koone opened the McQueen gate, drove his truck to the

south of Mr. Vunck’s motorcycle onto the Grippenstraw

property and blocked the only road by which Vunck and

Gaceta could have left the scene with his truck, preventing

Mr. Vunck and Ms. Gaceta from leaving.(20, 29, 23) Mr.

Koone stated that if Vunck and Gaceta attempted to leave,

that he would drive them off the road with his truck. At that

moment Vunck and Gaceta had been seized and were in the

custody of Koone. People v Cheatham (1975) 59 CA 3d 592,

595; 123 CR 361, Note 1; Tennessee v Garner (1984) 417 US 1,

7; 85 L Ed 1, 105 S Ct 1694; Reid v Georgia (1980) 448 US

438, 440; 65 L Ed 2d 890; 100 S Ct 2752.

Once a seizure has occurred, it continues throughout the

time the arrestee is in custody of the arresting officers

Robins v Harum 773 F2d 1004, 1010 (9 Cir 1985).

While Norman Vunck and Mercedes Gaceta were in the

custody of Dwayne Koone they proceeded through the gate

on foot, about 150 feet onto the property of Loren McQueen

at which point they stopped and returned to the truck

occupied by Dwayne Koone on the Grippenstraw property

and asked Dwayne Koone to confirm that they were under

arrest.(7.2, 19) To which question Dwayne Koone told

Mercedes Gaceta and Norman Vunck that they were under

citizen’s arrest. Mercedes Gaceta and Norman Vunck then

returned to the property of Loren McQueen and walked to

the top of the hill out of the sight of Dwayne Koone. The

hill on Loren McQueen’s property is separated from the

OE hee er

Almaden Air Station by a deep gorge which Vunck and

Gaceta did not cross.

The Declaration of John Contreras and the Sheriff’s

Incident Report states that Vunck and Gaceta walked 150 feet

onto Air Force Property however, Vunck and Gaceta claim,

and the U.S. Army Corps of Engineer maps show that the

property north of the McQueen Gate is the property of

Loren McQueen (Tract A-104E-2) and not the Almaden Air

Force Station property belonging to the General Services

Administration (Tract A-102). The US. Army Corps of

Engineer maps show that the former Air Force Station is 0.8

miles from the gate at the boundary of the property of Loren

McQueen and property of Frances Grippenstraw, where

K oone arrested Vunck and Gaceta.

The Ninth Circuit Court has stated in Ward v County of

San Diego County, 791 F2 1329, 1332 (9 Cir 1986): “Law

enforcement officials must be cognizant not only of how far

their authority extends, but also of the point at which their

authority ends.” and “ Capeoman places the responsibility for

keeping abreast of constitutional developments in criminal

law squarely on the shoulders of law enforcement officials.”,

quoting Capeoman v Reed, 754 F2d 1512, 1514 (9 Cir 1985)

It is the officer’s responsibility to know what he is

arresting for, and why. US v Di Re (1947) 332 US 581, 595.

John Woody returned and sat in the truck with Dwayne

Koone. Some time thereafter (about two hours), Santa Clara

County Deputy Sheriff John Contreras arrived.

The record shows that Vunck and Gaceta were on a road

where the public is invited. The record shows that neither

Koone nor the General Services Administration were in sole,

legal possession of the road where Koone arrested Vunck and

Gaceta. The record shows that Vunck and Gaceta did not

receive two separate warnings to leave the land, one from the

person in sole, legal possession of the road where Vunck and

Gaceta were arrested and a second warning from a police

officer. Koone had no probable cause to arrest Gaceta and

Vunck.

Defendant Koone has not refuted any of the evidence

presented to the court.

ea a ar na Bag A Sa alan OTE

bier waeteere

Ill. John Contreras Filed A Misdemeanor Complaint In

The Municipal Court Based On Hearsay From John

Koone And For Which, He Stated In A Declaration,

He Knew He Did Not Have Probable Cause To

Arrest Gaceta and Vunck.

At the request of Koone, Deputy Sheriff John Contreras

issued a “NOTICE TO APPEAR / COMPLAINT” to both

Norman Vunck and Mercedes Gaceta.(7.3, 19,8)

If a statute has been judicially construed, such

construction of the statutory words becomes part of the

statute “as if it had been so amended by the legislature.”

Cramp v Board of Public Instruction (1961) 368 US 278,

285; 82 S Ct 275; 280, 7 L Ed 2d 285; Select Base materials v

Board of Equal. (1975) 51 C 2d 640, 645; 335 P 2d 672.)

A complaint in an inferior court of limited jurisdiction

must contain an affirmative allegation of every single fact

necessary to describe the crime charged in order to confer

subject matter jurisdiction on the court. Antilla v Justice’s

Court of Big River Township (1930) 209 C 621, 624. Held: A

complaint, in order to meet Fourth Amendment

requirements must describe the totality of the circumstances

surrounding the crime. Illinois v Gates (1983) 462 US 213;

103 S Ct 2317; 76 L Ed 527. And a complaint based solely

upon statutory language may be constitutionally inadequate

if sufficient allegations of probable cause are not otherwise

present. In re Walters (1975) 15 C 3d 738, 748; 126 CR 239;

543 P 2d 607; People v Sesslin, 68 C 2d 418, 424-425; 67 CR

409; 439 P 2d 321.

If a complaint, in its charge against defendant, completely

fails to include some element essential to the description of a

criminal act and commitment has issued out of a court of

inferior grade, the lack of jurisdiction is established. /n re

Meisner (1939) 30 CA 2d 290, 292; Ex parte Greenall (1908)

153 C 767; 96 P 804; In re Alonzo (1979) 87 CA 3d 710; 151

CR 192, 195; Rogers v Superior Court of Alameda County

46 C 2d 3, 7; 291 P 2d 929.

The NOTICE TO APPEAR / COMPLAINT issued to

Vunck and Gaceta by John Contreras states that the address

of the incident is No. 1 Mt. Umunhum Road, the address of

Almaden Air Station which the US. Army Corps of

_Engineer maps show to be 0.8 miles from where Vunck and

Gaceta were arrested, across the intervening property of two

different land owners.

The description of the crime on the affidavit of the

NOTICE TO APPEAR / COMPLAINT states:

“602(n)(2) PC TRESPASSING”

No other information appears on the complaint and no

affidavits accompany it.

Penal Code Sec. 602(n)(2) Trespassing, does not apply to

persons who are using a right of way belonging to ANY

government entity within the scope of the initial grant.

People v Sweetser, (1977) 72 C.A.3d 278, 285; 140 C.R. 82;

Porter v City of Los Angeles (1920) 182 C. 515, 518-9; 189 P.

10S.

The necessary required elements of the crime of

trespassing as defined in PenC 602(n)(2) are:

1. The place trespassed upon is not open to the general

public.

2. The person making the complaint is either the owner,

the agent of the owner, or the person in lawful possession of

the property trespassed upon.

2a. It is only the person who is in lawful possession of

the property who is the proper person to complain about

trespassing. Smith v Cap Concrete (1982) 133 CA 3d 769,

774; 184 CR 308; Lightner Mining Co. v Lane (1911) 161 C

689, 694; 120 P 771)

2b. The person making the complaint must have

exclusive right of possession of the property. Smith v Cap

Concrete (1982) 133 CA 3d 796, 744; 184 CR 308; People v

Sweetser, (1977) 72 CA 3d 278, 285; 140 CR 82.

2c. An essential element of the charge of trespassing is

that two warnings to leave the property must be given to the

trespassers, one from the person in exclusive lawful

possession of the property and a_ second from a police

officer. People v Medrano (1978) 78 CA 3d 198, 215; 144 CR

217.

asractnindalea eas &. tet a

Neither the citizen’s arrest by Dwayne Koone nor the

affidavit in the complaint filed by John Contreras fulfills one

single necessary element to describe the crime of trespassing

in accordance with PenC 602(n)(2).

The affidavit on the complaint does not state that the

NOTICE TO APPEAR / COMPLAINT was issued pursuant

to PenC 837, a citizen’s arrest by Dwayne Koone.

John Contreras did not check the box on the NOTICE

TO APPEAR / COMPLAINT to indicate that the NOTICE

TO APPEAR / COMPLAINT was issued “On Information

And Belief”.(8)

PenC 142 Officer Refusing to Receive or Arrest

Criminal, requires that an officer accept a person arrested

by a private citizen but no law requires the officer to either

issue a NOTICE TO APPEAR / COMPLAINT as a result of

an arrest by a citizen, Opinion of the Attorney General

(1969) Vol. 52, p. 65 nor does any law require the officer to

sign a NOTICE TO APPEAR / COMPLAINT. People v

Maggoria (1962) 207 CA 2d Supp. 908, 910.

John Contreras stated in his declaration that he did not

see Vunck or Gaceta commit a misdemeanor and had no

authority to arrest Vunck and Gaceta for trespass.(7.5)

Nevertheless, Contreras personally verified the complaint

against Vunck and Gaceta and on July 12, 1984, filed the

complaint with the magistrate of the Santa Clara County

Municipal Court for the purpose of obtaining a warrant for

the arrest of Vunck and Gaceta.(25)

California Penal Code Section 170 Maliciously Procuring

Warrant to Search or Arrest, forbids Contreras to obtain a |

warrant for arrest for a misdemeanor which he did not

personally witness. Carroll v United States (1924) 267 US

132, 156 - 157; Map v Ohio (1961) 367 US 643, 651, 655;

Malley v Briggs (1986) 106 S Ct 1092, 1098.

“The information in the complaint or affidavit in

support of an application for a warrant for arrest must either

(1) state facts within the personal knowledge of the affiant or

complainant directly supportive of allegations in the

complaint that the defendant committed the offense; or (2)

when such stated facts are not within the personal knowledge

of the affiant or complainant, further state facts relating to

the identity and credibility of the source of the directly

incriminating information.” Jn re Walters 15 C 3d 738, 748;

126 CR 239; $43 P 2d 607; People v Cressey (1970) 2 C 3d

836, 842; 87 CR 699; 471 P2 19.

Under the admonition of Walters 15 C 3d 738, 748, the

complaint filed by John Contreras is clearly insufficient.

Vunck and Gaceta were released by Deputy Sheriff

Contreras subsequent to having been issued a Notice to

Appear / Complaint verified by John Contreras.(7.6)

Under these circumstances, John Contreras has not only

violated the Fourth Amendment rights of Gaceta and Vunck

in that an application for a warrant must be based upon

probable cause, John Contreras has violated PenC § 170 and

is not entitled to immunity from civil liability for his actions.

Harlow v Fitzgerald, 457 US 800, 818; 102 S Ct 2727; 73 L

Ed 2d 396.

1\. California Misdemeanor Arraignment Procedures

Statutorily Denies Fourth Amendment Due Process

Of Law.

The United States Supreme Court and the California

Supreme Court have held that every defendant has a Fourth

Amendment Constitutional right to a pretrial hearing to

challenge the veracity of an affidavit underlying a complaint

(Franks v Delaware (1978) 438 US 154, 437; 98 S Ct 2674; 57

L Ed 2d 667; People v Smith (1983) 34 C 3d 251, 258-9) and

to determine if there is probable cause for his arrest which

hearing may only be waived by knowledgeable consent.

Gerstein v Pugh (1975) 420 US 103, 111 - 114; 43 L Ed 2d 54;

95 S Ct 854; In re Walters, (1975) 15 C3 738, 742; 126 CR

239; 543 P 2d 607. However, California Penal Code Section

991 Procedures for Determining Probable Cause, restricts

Fourth Amendment “probable cause” hearings to only those

misdemeanor arrestees who are encarcerated at the time they

appear before the magistrate at arraignment.

The U.S. Supreme Court in Gerstein at p. 124-5 explicitly

left to each state the method and procedure by which a

Pe SE et ea eA

onal Sah se a fet de »

probable cause hearing for those accused of a misdemeanor

would be effectuated.

Contained in In re Walters at p. 747-8, the California

Supreme Court has laid out specific instructions (California

Pretrial Procedures) to the committing magistrate for

implementing a hearing to determine if there is probable

cause for the arrest of al] persons charged with a

misdemeanor. The instructions are explicit as to time and

method to conduct the hearing and are to apply to every

person charged with a misdemeanor unless the hearing is

waived by knowledgeable consent and so noted in the docket

record.

The mere fixing of bail does not satisfy the requirements

of Gerstein, at p. 125 fn, 26 and Walters, p. 750.

PenC 991 was enacted in 1980, five years after the

Supreme Court holdings in (Gerstein) and (Walters). Since

the legislature is presumed to know of rulings of the courts,

it must be presumed that the legislature, in adopting PenC §

991, meant to limit the citizens rights to due process of law.

People v Ward (1986) 188 CA 3d Supp 11, 14-15; 235 CR 287

The Municipal Court Docket Sheet is required to list the

Constitutional rights which were actually given to defendants

at arraignment. In re Smiley (1967) 66 C 2d 606, 617; 58 CR

579, 586. The pre-printed list of Constitutional Rights in the

Docket Sheet of the Municipal Court does not include the

requirement for notification of a Gerstein / Walters

“probable cause” hearing.(25)

The County of Santa Clara is responsible for printing the

Docket Sheets and the omission of notification of a

misdemeanor arrestee’s Fourth Amendment Constitutional

right to a probable cause hearing and the operation of PenC

§ 991 certainly expresses the County’s policy of routinely

denying this right to arrestees who are not incarcerated at the

time they appear before the magistrate. Monell v New York

City Dept of Soc. Srvcs. (1978) 436 US 658, 691-2.

Neither Vunck nor Gaceta were informed by Kevin

Murphy of their right to a pretrial hearing to determine

probable cause for their arrest nor to a pretrial hearing to

challenge the veracity of the affidavit underlying the

complaint charged against them.(11.1)

Vunck and Gaceta did not waive their rights to a pretrial

hearing to determine if there were probable cause for their

arrest. The municipal court docket sheet for Vunck and

Gaceta contains no notation of waiver of a “probable cause”

hearing by Gaceta or Vunck. Waiver of Constitutional rights

cannot be presumed by silence of the record’ /n re Johnson

(1965) 63 C 2d 325, 334; Johnson v Zerbst (1938) 304 US 458,

464; 58 S Ct 1129; 82 L Ed 1461.(25)

The only time that a challenge to the jurisdiction of a

court may be made its prior to a general appearance and

entry of a plea or demurrer, at which time the warrant

becomes functus officio. ULS. v Ford (1926) 273 US 593, 606:

47 S Ct 531; People v Smith (1850) 1 C 9, 11; Rescue Army \

Municipal Court (1946) 28 C 2d 460, 463-4; 171 P 2d 8.

A demurrer to the complaint filed by Contreras would

never be sustained because, due to the interaction of

California Penal Code sections 740, 853.9(b), 950, 1004, and

1012, a demurrer to a misdemeanor complaint written legibly

on a form approved by the Judicial Council is legally

sufficient if two conditions are met: 1) The complaint is

written on a form approved by the Judicial Council and 2)

only the name of a section of the California Penal Code

appears on the complaint. People v Heldt (1985) 163 CA 3d

$32, 536; 209 CR 579. See Appendix: Analysis of Penal Code

Sections.

\. The Right To Due Process Is Absolute.

Even though the Penal Code did not authorize a pretrial

hearing to determine probable cause for the arrest of Gaceta

and Vunck, the right to due process is absolute ( Carey \

Piphus (1978) 435 US. 247, 266 - 267; ) and not

discretionary. Sallas v Muni Ct of San Leandro (1978) 150

CR 543, 546; Keeler v Superior Court (----) 2 C 3d 619, 635;

87 CR 481; 470 P 2d 617.

A court has the jurisdiction to determine its own

jurisdiction and it may use any appropriate means to

effectuate that proceeding. Cal. Civil. Proc. Code Sec. 187

A alge Net alee tN le na tO: ae’ 9-00 Mme Doh

whe nee

(West 1982). People v Chew Lan Ong (1904) 141 C 550,

552-3.

Code of Civil Procedure Sec. (CCP §) 418.10, Objection

to Jurisdiction, is the only statute in California by which a

person charged with a misdemeanor who is not incarcerated

in jail may obtain a pretrial hearing to claim their

Constitutional Fourth Amendment right to challenge the

veracity of the affidavit underlying a complaint or to

determine if there is probable cause for the arrest of

defendants. This statute must be used prior to any general

appearance, either plea or demurrer.

Vil. Magistrate Kevin Murphy Did Not Obtain Personal

Jurisdiction Over Vunck And Gaceta By Means Of

Their Special Appearance Under The Provisions Of

Code Of Civil Procedure 814.10

Where a statute provides a special remedy for use in

specified cases, a party seeking the remedy may look to the

special statute for a definition of his rights. Brill v Los

Angeles County (1941) 16 C2 726; 108 P2 443. Boggs v

North American Bond & Mortgage Co. (1937) 20 CA2 316;

66 P2 1253.

July 23, 1984 was the last day upon which Vunck and

Gaceta could have entered a plea to the misdemeanor

complaint filed against them by John Contreras.8, 27)

Vunck and Gaceta were not in custody and the time and

thereby statutorily denied a hearing under the provisions of

PenC § 991, to determine if there were probable cause for

their arrest.

CCP § 418.10(@) explicitly states that a challenge of

jurisdiction under this section may be made on or before the

last date upon which a plea must be entered and § 418.10(b)

States that when a motion challenging the jurisdiction of the

court is made under CCP § 418.10, the date upon which a

plea must be entered is automatically extended to a date

fifteen days subsequent to the date of filing and service upon

the defendant of an order by the magistrate denying the

challenge of jurisdiction.

The special appearance of Vunck and Gaceta, made for

the purpose of challenging the personal jurisdiction of the

court did not confer upon Kevin Murphy, persona!

jurisdiction over Vunck and Gaceta. Goodwine v Superior

Court (1965) 63 C 2d 481, 484; Olcese v Justice’s Court

(1909) 156 C 82, 88. The notes of the California Judicial

Council appended to CCP § 418.10 explicitly state that a

challenge of jurisdiction under CCP § 418.10 does not confer

upon the court the personal jurisdiction of the defendant

whenever a defendant appears only for the purpose of

challenging the jurisdiction of the court. CCP § 418.10, Notes

of Judicial Council.

Since the special proceeding brought by Gaceta and

Vunck to claim their civil rights was not brought in the name

of The People, it was a civil proceeding. Ex parte Tom Tong

(1883) 2 S Ct 871; 108 US $56; 27 L Ed 826.

Once Vunck and Gaceta challenged the jurisdiction of the

Municipal Court, all that was necessary to establish prima

facie false imprisonment was to show that they were arrested

without a warrant at which point it is incumbent upon the

plaintiff to prove jurisdiction. Hughes v Orb (1951) 36 C 2d

854, 858; 288 P 2d 550; People v Privett (1961) 5S C 2d 698,

700; 12 CR 874; Cervantez v J.C.Penny Co, (1979) 24 C 3d

$79; 156 CR 198; 595 P 2d 975.

\Il. A Magistrate Is Neither A Court Nor A Judge. The

Jurisdiction Of A Magistrate It Limited By Statute.

Kevin Murphy, By His Own Admission Was Sitting

As A Magistrate.

The person before whom a person arrested for the

commission of a misdemeanor without a warrant, is not a

judge but a magistrate. PenC § 849 Duty of Officer to Take

Accused Before Magistrate - Release from Custody or PenC §

853.6(a) Citations for Misdemeanors Under State law

Release or Nonrelease. Wells v Justice Court (1960) 5 CR

204, 206; People v Cohen (1897) 118 C 74, 78; SO P 20:

People v Brite 9 C 2d 666, 685; 72 P 2d 122.

Kevin Murphy, by his own admission contained in an

affidavit of James Sugiyama, the court reporter, was silling

aS a Magistrate at the hearing of Vunck and Gaceta on July

a Le

23, 1984.(12.1)

There is no presumption of regularity of the proceedings

which surround a magistrate. People v Cohen (1897) 118 C

74, 78.

When John Contreras filed a criminal complaint with a

magistrate in a Municipal Court, he did not invoke the

jurisdiction of any court or institute a criminal proceeding.

In re Geer (1980) 108 CA 3d 1007, 1005; People v Case

(1980) 105 CA 3d 826, 830; 166 CR 912, 914-5; People v

Crespi (1896) 115 C 50, 54; 46 P 863. A magistrate is not an

inferior court, a superior court, or a competent court because

there is no trial jurisdiction. People v Peters (1978) 21 C 3d

749, 753; 147 CR 646; 581 P 2d 651.

PenC § 807 defines a magistrate as “an officer having

power to issue a warrant for the arrest of a person charged

with a public offense.” A magistrate has the additional

function, limited by statute, of determining whether there is

sufficient or probable cause to hold an accused for trial.

People v Uhlemann (1973) 9 C 3d 662, 667; 108 CR 657.

A magistrate presides at an arraignment which is

established by operation of the Legislature and the Penal

Code sections 853.6 and 976. People v Crespi (1896) 115 C

50, 54; 46 P 863.

A magistrate need not be a member of the bar (People v

Uhlemann (1973) 9 C 3d 675, 667; 108 CR 657) and it may

be the court clerk or prosecuting attorney who sits as

magistrate at an arraignment. (Penal Code Sec. 988)

Vill. Kevin Murphy, Sitting As A Magistrate, Without

Either Personal Jurisdiction Over Petitioners Or

Subject Matter Jurisdiction Over The Offense,

Refused To Examine The Complaint Before Him To

Determine If There Were Probable Cause To Issue

An Arrest Warrant And Orally Order The Arrest

And Incarceration Of Petitioners Without A

Warrant.

On July 23, 1984, Vunck and Gaceta appeared by special

appearance in conformity with California Code of Civil

Procedure 418.10 in the Municipal Court before Judge Kevin

Murphy, who was sitting as a magistrate, to challenge the

jurisdiction of the Municipal Court.(12)

When Gaceta and Vunck appeared before Magistrate

Kevin Murphy to challenge the jurisdiction of the court,

their appearance was a “special appearance” whether they

said so or not ( Lander v Flemming (1874) 47 C 614, 616.)

and it was error to deny that privilege. Lyman v Milton

(1872) 44 C 630, 635.

Both Vunck and Gaceta filed written and oral motions

with points and authorities together with affidavits

supporting their special appearance(28) and challenging the

jurisdiction of the Municipal Court stating that the court did

not have personal jurisdiction over Vunck and Gaceta

because Dwayne Koone was not a person authorized to make

an arrest under the provisions of Penal Code Section

602(n)(2).(28) Smith v Cap Concrete, Inc., 113 CA 3d 769,

774; 184 CR 308 (1982)

Vunck and Gaceta also stated that the jurisdiction of an

inferior court, once challenged, was required to be proven by

the person who is invoking the jurisdiction of the court, in

this case, the People of California. McNutt v General Motors

(1936) 298 US 178, However, John Contreras stated in an

affidavit that he knew that he did not have probable cause to

arrest Gaceta and Vunck.(7.5)

No objection to the motion of Gaceta and Vunck

challenging the jurisdiction of the Municipal Court was

made because among other things, there was no District

Attorney or representative of the People of California present

at the hearing.(12.2)

A special appearance, as established by statute Code of

Civil Procedures § 418.10, is a special proceeding defined in

Code of Civil Procedures § 22. In re Central Irr. Dist, 117 C

382; 40 P 354. Jurisdiction of special proceedings are only

such as are created and authorized by statute and Kevin

Murphy, in the exercise of this jurisdiction, was limited by

the terms and conditions under which the proceedings were

authorized. Smith v Westerfield (1891) 88 C 374, 379; Woods-

Drury, Inc. v Superior Court (1936) 18 CA 2d 340, 344; 63 P

2d 1184; Lay v Superior Court, 11 CA 558, 560; 105 P 775.

Magistrate Kevin Murphy stated that it was legally

impermissible to make a special appearance when one is a

defendant, for the purpose of challenging the jurisdiction of

the court.(11)

Kevin Murphy did not convene a hearing to determine

the jurisdiction of the court as required by California Code

of Civil Procedure Section 418.10(b) nor comply with the

provisions of Section 418.10@) of the statute which requires

the magistrate to file and serve upon the defendant a written

order of the court denying [not rejecting] the motion

challenging the jurisdiction of the court, nor did Kevin

Murphy comply with any other provisions of CCP 418.10.(11)

Kevin Murphy denied Gaceta and Vunck their right to

due process of law to challenge the veracity of the affidavit

contained in the complaint filed by John Contreras as

guaranteed by the Fourth Amendment of the US.

Constitution. Franks v Delaware (1978) 438 US 154, 437; 98

S Ct 2674; 57 L Ed 2d 667; People v Smith (1983) 34 C 3d

251, 258-9.(11)

Kevin Murphy denied Gaceta and Vunck their right to a

hearing to determine if there were probable cause for their

arrest as guaranteed by the Fourth Amendment of the U.S.

Constitution and mandated by the California Supreme Court.

Gerstein v Pugh (1975) 420 US 103, 111 - 114; 43 L Ed 2d 54;

95 S Ct 854; In re Walters, (1975) 15 C3 738, 742; 126 CR

239; 543 P 2d 607.(11)

Kevin Murphy violated the provision of CCP § 418.10(b)

which states that the date for entering a plea to the initial

complaint is automatically extended 15 days subsequent to

the date of filing and service upon the defendant of an order

by the court denying defendant’s motion challenging the

jurisdiction of the court by insisting that both Vunck and

Gaceta then and there, enter a plea in response to the

complaint filed by John Contreras.(11)

Vunck entered a plea, Gaceta did not; she remained mute

until the provisions of CCP § 418.10 were met.

Kevin Murphy set bail of $2000 for each Gaceta and

Vunck and orally ordered the bailiffs to seize Vunck and

Gaceta.(11)

As a magistrate, Kevin Murphy had no inherent power to

arrest Gaceta and Vunck or place them in jail. Pousson v

Superior Court In and For San Diego County (1958) 165 CA

2d 750; 332 P 2d 766. The Fourth Amendment of the U.S.

Constitution states that there shall be no searches or seizures

without a warrant based upon probable cause.

Kevin Murphy did not make a determination whether or

not there was probable cause underlying the warrantless

arrest of Vunck and Gaceta by Dwayne Koone, or the filing

of a complaint by John Contreras as required by § PenC

853.6(f) and Gerstein v Pugh (1975) 420 US 103, 111 - 114; 43

L Ed 2d 54; 95 S Ct 854; In re Walters, (1975) 15 C3 738,

742; 126 CR 239; 543 P 2d 607.

Kevin Murphy did not either discharge Vunck and Gaceta

or issue a warrant for their arrest in response to the

complaint filed by Contreras as required by PenC § 853.6()

and § 1427 and the Fourth Amendment of the US.

Constitution.(26)

Immediately upon the verbal order of Kevin Murphy,

Vunck and Gaceta were seized by the bailiffs without a

warrant and transported to the County Jail, and charged by

the bailiffs with trespassing in the Municipal Court on July

23, 1984.15)

Jail guards took the photographs and fingerprints of

Vunck and Gaceta, took their clothing and possessions,

attached prison identification tags to their bodies, and issued

prison bedding and clothing to them and they were then

placed in a prison cells together with convicted prisoners and

entered this information in the County’s permanent criminal

computer data base.

Vunck and Gaceta paid $4000 bail and were released

from the County Jail.(11, 16)

In the case of Vunck, Murphy set a trial date.(17) In the

case of Gaceta, who remained mute and refused to enter a

plea, Kevin Murphy entered a notation in the record that

Gaceta was mentally incompetent and set a date for further

Jew ticelt stl

fit Blt Ano tgt ny BE 8 a Or

arraignment before Judge Nancy Hoffman, who was

sitting as a magistrate.(1)

Vanck and Gaceta petitioned the Federal District Court

for removal of their case from the Santa Clara County

Municipal Court to the Federal District Court on the basis

that they were being denied due process of law and it was

unlikely that they could obtain their rights. The District

Court never acted upon the petition. County Counsel

Woodside, on behalf of Murphy and Contreras, filed a secret

motion in opposition to the petition for removal by filing

their motion with a false Certificate of Service. The People

of California did not oppose the motion.

I\. Magistrate Kevin Murphy Does Not Have Absolute

Judicial Immunity And Is Not Immune To Civil

Liability For Damages For Depriving Gaceta And

Vunck Of Their Fourth Amendment Rights.

Kevin Murphy, as a magistrate was acting independently

from his jurisdiction as a judge of the Municipal Court. His

powers and jurisdiction came from the Constitution,

operating with the acts of the Legislature on the subject

‘People v Cohen (1897) 118 C 74, 78) and was a different

office from that of a judge; as one conferred by statute, not

by district election. People v Flemming (1981) 29 C 3d 698,

703; 175 CR 604; 631 P 2d 38; Johnson v MacCoy 278 F2d

37, 38 (9 Cir 1960).

Kevin Murphy engaged in no adjudicatory acts. Only

qualified immunity from liability and damages attaches for

executive functions that judges may be assigned by law to

perform; it is the nature of the function performed -

adjudication - rather than the identity of the actor who

performed it - judge - that determines whether absolute

immunity attaches to the act. Forrester v White (1988) 108 S

Ct 538, 543 - 545.

Every single act of Kevin Murphy was illegal: qua illegal.

Kevin Murphy’s qualified immunity defense depends upon

the objective legality of his conduct as measured by

references to clearly established law. No other circumstances

are relevant to the issue of qualified immunity. Harlow v

Fitzgerald (1982) 457 US 800, 190 - 197. Officials may

lose their immunity by violating “clearly established

statutory ... rights.” 457 US at 818.

It is settled law that Kevin Murphy had a duty to construe

Penal Code sections in harmony with the requirements of

Gerstein and Walters, supra,) so as to give effect to each,

which he did not do. Morse v Municipal Court (1974) 13 C

3d 149, 159; 118 CR 14; 529 P 2d 46; People v Tideman (1962)

57 C 2d 574, 583; 21 CR 207; 370 P 2d 1007.

Murphy was bound to know the law, and cannot be

received to plead ignorance of it. Town of South Ottawa v

Perkins (1876) 84 US 260, 269. Kevin Murphy cannot be held

to have been exercising judicial discretion unless all the

evidence and material facts and circumstances concerning

the complaint before him were both known and considered,

together with legal principals essential to an informed,

intelligent and just decision. Martin v Alcoholic Beverage etc.

Appeals Bd. (1961) 55 C 2d 867, 878; 13 CR 513; 362 P 2d

337; People v Davis (1984) 161 CA 3d 796, 805; 207 CR 846.

Since he did not convene a hearing to determine this

information, he did not have it.

X. Hearings Subsequent to Kevin Murphy

Gaceta had two further hearings before Judge Nancy

Hoffman, who was sitting as a committing magistrate. At

each of these hearings, Gaceta renewed her petition

challenging the jurisdiction of the court. Hoffman stated that

she agreed with Murphy that Gaceta was mentally

incompetent and refused to acknowledge Gaceta’s motion

challenging the jurisdiction of the court. Gaceta refused to

enter a plea until the requirements of CCP 418.10 were

discharged so Nancy Hoffman entered a plea of not guilty on

behalf of Gaceta and set a trial date.(2)

The charges against Vunck and Gaceta were dismissed

for lack of jurisdiction on September 21, 1984, three months

after their arrest.

ot TO De ei a

—

CONCLUSION

No person should be stripped of the constitutional

protections afforded by the Fourth Amendment, or deprived

of the remedy 42 U.S.C. § 1983 provides to redress violations

of those protections, unless there are compelling reasons for

insulating the wrongdoer from liability. No such reasons exist

with respect to a civilian groundskeeper who arrests a

traveler in violation of every single precondition for a valid

arrest under the section of the penal code he made the arrest

or a police officer who filed a verified complaint for a

misdemeanor he not only did not witness but for which he

stated in a declaration that he knew he had no probable cause

for making the arrest, which violated Califonria Penal Code

§ 170 and the Fourth Amendment rights of petitioners.

The position of magistrate is not a position within the

Judicial system of the government. The magistrate before

whom petitioners appeared not only violated every single

statute he was charged with upholding as well as lying to

petitioners from the bench in order to deprive petitioners of

their Fourth Amendment Constitutional rights by fraud and

deceit, he did more. He orally ordered the bailiffs to

encarcerate petitioners when he knew he did not issue a

warrant for the arrest of petitioners. The bailiffs charged

petitioners with trespassing in the Municipal Court.

The charge against petitioners was dismissed due to lack

of jurisdiction. That lack of jurisdiction could only eminate

from the fact that the arrest by Koone and the complaint

filed by Contreras were illegal, depriving the magistrate of

jurisdiction over the offense. Petitioners appeared specially

and did not submit to the personal jurisdiction of the court.

Under those circumstances, the magistrate had neither

subject matter jurisdiction nor personal jurisdiction. The

magistrate did not engage in any adjudicatory process for

which he could claim judicial immunity.

Due to the acts of all of the respondents, petitioners were

detained in California for three months which prevented

from timely concluding their business in Canada and causing

them to forfeit fifteen million dollars in investment capital.

Respectfully submitted,

Pro se

Mercedes L. Gaceta,

Pro se.

]

APPENDIX A

The following document carries a stamped mark which reads

“FILED AUG 17 1989

CATHY A. CATTERSON,

CLERK US. COURT OF APPEALS”

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MERCEDES L. GACETA;

NORMAN R. VUNCK,

Plaintiffs-Appellants,

vs-

UNITED STATES OF No. 87-2787

AMERICA*; SANTA CLARA DC. No.

COUNTY; DWAYNE ALAN CV-85-20386-RPA

) KOONE; JOHN DOE WOODY; MEMORANDUM

: JOHN DOE CONTRERAS;

KEVIN J. MURPHY;

NANCY HOFFMAN; JANE

} DOE ANDERSON;

JAMES R. SUGIYAMA; DOES 1

through 50, inclusive,

Defendants-Appellees

Appeal from the United States District Court

for the

Northern District of California

Robert P Aguilar,

District Judge, Presiding

Argued and Submitted June 28, 1989

i San Francisco, California

Before: WALLACE, POOLE, and HALL,

) Circuit Judges.

* The United States was not a defendant.

> -

APPENDIX A

Gaceta and Vunck (Gaceta) appeal from summary

judgment in their action brought against various defendants

arising out. of an arrest on Mt. Umunhum Road in Santa

Clara County. The district court had jurisdiction under 42

USC. §1983 and 28 U.S.C. §1343. We have jurisdiction over

this timely appeal pursuant to 28 U.S.C. §§1291 and 1294. We

affirm.

In order to state a section 1983 claim against a public

entity, the claimant must establish that the public entity had

an official policy, custom or practice which caused the

claimants to be deprived of their constitutional rights under

the color of state law. Monell v. Department of Social

Services of the City of New York, 436 U.S. 658, 690-95

(1978). According to the record, Gaceta was unable to

produce evidence that the County of Santa Clara had any

such “policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.”

Id. at 690. Instead, Gaceta, without any supportive facts,

merely attributes the actions of county employees to the

policies and customs of the county. Therefore, Gaceta failed

to state a claim against the county, because a county “cannot

be held liable solely because it employs a tortfeasor -- or, in

other words, a [county] cannot be held liable under §1983 on a

respondeat superior theory.” Id. at 691 (emphasis in original).

Once the County pointed out that Gaceta had no basis to

claim such a policy, practice, or custom existed on this

essential element of the claim, Gaceta was then required to

prove that a genuine issue of fact existed to avoid summary

judgment. United Steelworkers of America v. Phelps Dodge

Corp., 865 F2d 1539 (9th Cir. 1989) (en banc) (Stee/workers).

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)

(Celotex). Gaceta made no such showing. Consequently, the

district court was correct in granting summary judgment in

favor of the County.

—_

APPENDIX A

"To state a claim under §1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of

the United States, and must show that the alleged deprivation

was committed by a person acting under color of state law.”

West v. Atkins, 108 SCt. 2250, 2255 (1988). “Private parties

act under color of state law if they willfully participate in

joint action with State officials to deprive others of

constitutional rights.” Steelworkers, 865 F2d at 1540.

Gaceta repeatedly alleged that throughout the pendency

of the state court litigation Koone was involved in a

conspiracy to deprive him of his consitutional rights.

However, Gaceta failed to allege that any of Koone’s alleged

acts IN sO consptring took place under color of state law.

Furthermore, Gaceta failed to allege any action taken jointly

by Koone and state officials during the litigation. Once

Koone pointed out this lack of evidence, the burden shifted

to Gaceta to produce evidence that a genuine issue of fact

existed on this essential element of the claim. Id. at 1543;

Celotex. 477 U.S. at 322-23. Since there is no evidence in the

record that Gaceta established a genuine issue of material

fact as to this element, the district court was correct in

granting summary judgment as to claims 6 through 27.

Pursuant to 28 U.S.C. §2679, as amended by Public Law

No. 100-694, upon certification by the attorney general that a

federal employee was acting within the scope of his

employment, “any civil action or proceeding commenced

upon such a claim in a United States district court shall be

deemed an action against the United States ....” 28 USC.

§2679(d)(1). Section 2679(b) provides that the Federal Tort

Claims Act shall be exclusive remedy for such common law

tort claims in such actions. These amendments to 28 USC..

$2679 were expressly made effective for all actions pending

on the date of the enactment of this Act, November 18, 1988.

Pub. L. No. 100-694, §8(b), U.S. Code Cong. & Admin., 102

Stat. 4565-66 (1988).

Pursuant to 28 C.ER. §15.3 (1988), the Attorney General,

acting through United States Attorney Joseph P Russoniello,

APPENDIX A

certified that Koone, a federal employee, was at all times

acting within the scope of his employment with the federal

government, in committing the acts complained of by

Gaceta. Therefore, the district court was correct in finding

that Koone was immune from suit for the common law

pendent state claims.

"|Jjudges defending against $1983 actions enjoy absolute

immunity from damages liability for acts performed in their

judicial capacities.” Dennis v. Sparks, 449 U.S. 24, 27 (1980)

(quotation omitted). A judge is only subject to liability “when

he has acted in clear absence of all jurisdiction.” Stump v.

Sparkman, 435 U.S. 349, 357 (1978) (quotation omitted).

Gaceta alleged that Judges Hoffman and Murphy were

liable under section 1983, among other things, for claiming

personal jurisdiction over Gaceta in the state court action.

The Municipal Court Judges had authority to hear Gaceta’s

misdemeanor criminal matters. Cal. Penal Code §§602 and

1462 (West 1982). Therefore, the judges also had authority to

rule on jurisdiction in these matters. Cal. Civ. Proc. Code

$187 (West 1982). Thus, Hoffman and Murphy were not

acting in “clear absence of all jurisdiction” and were afforded

absolute judicial immunity.

Government officials are entitled to qualified immunity

“to shield them from undue interference with their duties and

from potentially disabling threats of liability.” Harlow vy.

Fitzgerald, 457 U.S. 800, 806 (1982) (Harlow). This qualified

immunity shields government officials “from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Id. at 818, citing

Procunier v. Navarette, 434 U.S. 555, 565 (1978).

Koone was acting as government employee in the actions

complained of in claims | through 5. Assuming Gaceta states

a Bivens claim, under the Harlow objective reasonableness

standard, Koone would be protected by qualified immunity

APPENDIX A

as long as his conduct did “not violate a clearly established

statutory or constitutional right [] of which a reasonable

person would have known.” Harlow, 457 US. at 818. This

qualified immunity extends to officers making an arrest.

Hutchinson V. Grant, 796 F2d 288, 290 (9th Cir. 1986)

(Hutchinson). While Koone was not officially a “police”

officer, part of his duty as a caretaker was to “[sjerve[] as a

security guard at site by reporting to supervisor and county

sheriff any trespassers upon property.”

It is unclear from the record whether Gaceta enjoyed a

clearly established right to travel on the road in question. The

district court judge, relying upon a letter from the

Midpeninsula Regional Open Space District (District), found

that the right to travel on the road was at least subject to

doubt. It was argued that there was a question regarding the

existence of the easement based upon the 1964 County of

Santa Clara Superior Court Case No. 150266, Rood v.

McQueen, and that any easement presently in existence was

created by the purchase of Almaden Air Force Base by the

District following the incident in question. Gaceta argues that

the easements were created in 1955 by a grant from the

owners in fee. Based upon the record before us, we conclude

the district court did not err in determining Gaceta did not

prove there was a clearly established right to travel on the

road in question.

In addition, even if a clearly established right existed,

government officials would still be immune so long as the

violated right was not a right of which reasonable person

would have been aware. Koone approached Gaceta and asked

whether he had observed “NO TRESPASSING” signs. He

replied that he had observed the signs, but refused to leave.

Koone advised Gaceta that he was trespassing on private

property and asked him to leave. Deputy Contreras asked

him if he had observed the signs. Gaceta stated that he had

observed the signs and refused to leave. The Almaden Air

Force Base contained a minimum of 99.99 acres. Therefore,

the question is whether a reasonable caretaker of a deserted

Air Force base, consisting of approximately 100 acres, should

APPENDIX A

have been aware of an easement despite the presence of a

fence around the property, clearly posted no trespassing signs,

and no indication of being informed by either Gaceta or the

owner of the property that such an easement existed. See

Anderson v. Creighton, 438 US. 635, 641 (1987)

(recognizing that the objective reasonableness inquiry may be

a fact intensive inquiry). We conclude that, given these facts,

a reasonable caretaker neither would have nor should have

known of the easement. Therefore, even if there was a clearly

established right for Gaceta to travel on the road, a reasonable

caretaker would not have known of this right, immunizing

Koone for any violation of this right.

The two deputy sheriffs, John Contreras and Georgia

Anderson, were likewise protected by qualified immunity, so

long as they were acting within the objective reasonableness

standard. Hutchinson, 796 F2d at 290. Contreras was

arresting Gaceta pursuant to a properly executed citizen’s

arrest. Cal. Penal Code §837.1 (West 1982). Anderson was

acting upon the direction of a judge. Gaceta failed to offer

any evidence that these official actions were in violation of

any “clearly established” rights.

Sugiyama was the court reporter who transcribed the

proceedings in the state court action. A court reporter is

protected by qualified immunity in the course of his official

conduct. Green v. Maraio, 772 F2d 1913, 1018 (2d Cir. 1983).

No evidence was presented which supported Gaceta’s

allegations that Sugiyama deliberately falsified the official

record. Therefore, no evidence was presented that Sugiyama

acted in violation of any of Gaceta’s rights.

Steven Woods was the prosecuting attorney in the

underlying action. Prosecuting attorneys are protected by

absolute immunity. Imbler v. Pachtman, 424 US. 409,

428-29 (1976). Therefore, the district court was correct in -

dismissing the action against Woodside, since all of the

actions complained of were committed in Woodside’s official

Capacity as prosecutor. Even though the district court relied

upon qualified immunity, the decision should be affirmed,

since it is supported by the record. Bruce V. United States, 759

APPENDIX A

F2d 755, 758 (9th Cir. 1985).

The district court did not err in its determination that

Koone, Sugiyama, Contreras, Anderson, and Woodside were

entitled to qualified or absolute immunity.

AFFIRMED.

Note: This disposition is not appropriate for publication

and may not be cited to or by the Courts of this Circuit

except as provided by Ninth Circuit Rule 36-3.

APPENDIX A

Note: The document below bears a stamped mark which

reads: “FILED OCT 13 1989 CATHY A. CATTERSON,

CLERK US. COURT OF APPEALS.”

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MERCEDES L. GACETA;

NORMAN R. VUNCK;

Plaintiffs-Appellants, |

-VS- |

UNITED STATES No. 87-2787

OF AMERICA; * DC. No.

SANTA CLARA COUNTY; CV-85-20386-RPA

DWAY NE ALAN KOONE; ORDER DEN YING

JOHN DOE WOODY; REHEARING

JOHN DOE CONTRERAS;

KEVIN J. MURPHY;

NANCY HOFFMAN;

JANE DOE ANDERSON;

JAMES R. SUGIYAMA;

DOES 1 through 50, inclusive;

Defendants- Appellees.

Appeal from the United States District Court for the

Northern District of California

Before: WALLACE, POOLE, and HALL, Circuit

Judges.

Treating the petition for review of Gaceta and Vunck

as a petition for rehearing, it is denied.

*The United States was not a defendant.

MERCEDES L. GACETA

and

NORMAN R. VUNCK,

Plaintiff,

VS.

COUNTY OF SANTA

CLARA, JOHN WOODY,

DWAYNE ALAN KOONE,

CONTRERAS,

GEORGIA ANDERSON,

NANCY HOFFMAN,

KEVIN MURPHY,

JAMES SUGIYAMA, and

STEVEN WOODSIDE,

Defendants.

APPENDIX B

Docket 055

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NO. C 85 20386 RPA

ORDER GRANTING IN

PART AND DEN YING IN

PART DEFENDANTS’

VARIOUS MOTIONS TO

DISMISS

This matter came before the Court on February 14, 1986,

County of Santa Clara.

Court orders as follows:

(1977).

and April 11, 1986, for hearing on various motions to dismiss

filed by defendants United States, Dwayne Koone, and the

Having considered the memoranda and the First and

Second Amended Complaints,

counsel and plaintiffs, and good cause appearing therefore, the

and heard the argument of

1. Defendant County of Santa Clara’s Motion to Dismiss is

granted, with leave to amend. Plaintiff has failed to plead the

existence of a policy, custom, or practice of the County that

cause plaintiffs to be deprived of their federal civil rights.

| Monell v Department of Social Services, 436 U.S. 658, 690

2. By stipulation in open court, defendant United States’

Motion to Dismiss is granted. Consequently, plaintiffs’ Federal

Tort Claims Act claim is rendered moot.

APPENDIX B

3. Plaintiffs’ claim against defendant Dwayne Koone

under 42 USC. (1983 is dismissed because that statute

provides a remedy only against officials acting under color of

state law. There are no facts alleged to suggest that Koone was

acting under color of state law.

4. Plaintiffs’ second amended complaint contains 27

“causes of action.” The first five of these allege sufficient

facts to constitute short and plain statements of claims

against defendant Dwayne Koone for Fourth Amendment

violation pursuant to Bivens, conspiracy, false imprisonment,

and assault. Therefore, defendant Dwayne Koone’s motion to

dismiss pursuant to Rule 8 is denied as to these five “causes

to action” that state four claims.

5. “Causes of action” numbered 6 through 27 allege that

defendant Koone conspired with the state defendants to

commit all wrongful acts allegedly suffered by plaintiffs

during their court hearing and jailing procedures. However,

plaintiffs allege no facts to support such allegations. Any

causal connection between defendant Koone’s acts

concerning plaintiffs’ arrest and any subsequent wrongful

acts by others is too tenuous to support holding Koone liable

for “setting them in motion.” Therefore, “causes of action”

numbered 6 through 27 fall under Rule 8 and are dismissed

as to defendant Koone only.

6. Defendant Koone will be given 30 days from the date

of this order to respond to plaintiffs’ second amended

complaint.

IT IS SO ORDERED.

DATE: APRIL 11, 1986

ROBERT P AGUILAR

United States District Judge

- sence Aantal

APPENDIX B

Docket No.113

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MERCEDES L. GACETA

and

NORMAN R. VUNCK,

Plaintiff, NO. C 85-20386 RPA

VS. ORDER DISMISSING

COUNTY OF SANTA PLAINTIFFS’ COMMON

CLARA, JOHN WOODY, LAW TORTS AGAINST

DWAYNE ALAN KOONE, FEDERAL DEFENDANT

CONTRERAS, KOONE

GEORGIA ANDERSON,

NANCY HOFFMAN,

KEVIN MURPHY,

JAMES SUGIYAMA, and

STEVEN WOODSIDE,

Defendants.

On June 26, 1986 at 2:00 p.m., the Court heard the

regularly noticed motion of federal defendant Dwayne Alan

Koone to dismiss the common law torts alleged against him

in plaintiffs’ first four "causes of action” contained in

Plaintiffs’ Second Amended Complaint. Samuel Wong,

Assistant United States Attorney, appeared on behalf of

defendant Koone. Norman Vunck and Mercedes Gaceta

appeared pro se. The Court having received, read, and

considered the papers submitted and heard oral argument in

support, and in opposition, of the motion, and good cause

appearing therefrom,

IT IS HEREBY ORDERED that plaintiffs’ first four

"causes of action” which allege, if anything, common law

torts, are hereby dismissed with prejudice and without leave to

amend against defendant Koone only on ground that he is

absolutely immune from common law torts which he

APPENDIX B

allegedly committed within the perimeter of his line of duty.

Augustine v. McDonald, 770 F2d 1442, 1446 (9th Cir. 1985).

See also Ryan v. Bilby, 764 F2d 1325, 1328 (9th Cir. 1985);

Owynee Grazing Ass’n, Inc. v. Field, 637 F2d 694, 697 (9th

Cir. 1981); Clifton v. Cox, 549 F2d 722, 726 (9th Cir, 1977).

Defendant Koone shall respond to the only remaining ”cause

of action” against him contained in plaintiffs’ fifth ”cause of

action” within fifteen days of the date of this Order.

DATED: July 21, 1986

UNITED STATES DISTRICT JUDGE

APPENDIX B

Docket No. 200

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MERCEDES GACETA, et al.,

Plaintiff, C 85-20386 RPA

vy. ORDER GRANTING

DWAYNE KOONE, MOTION FOR SUMMARY

Defendant, JUDGMENT

I. PREFACE

The sole remaining defendant in this case, Dwayne Koone,

seeks dismissal of this {1983 lawsuit on the grounds of

qualified official immunity. As explained below, the Court

will grant the motion and dismiss the case.

Il. FACTS

Plaintiffs Mercedes Gaceta and Norman Vunck were

arrested on June 24, 1984 while riding their touring

motorcycle in the area of the Almaden Air Force Station on

Mt. Umunhum in Santa Clara County. The individual who

first stopped these motorcycling enthusiasts was defendant

Koone. Koone apparently asked plaintiffs whether they had

observed the “NO TRESPASSING” signs posted prominently

along the road. When they replied that they had observed such

signs, Koone asked them to leave the premises. Upon

plaintiffs’ refusal to leave, Koone called the Santa Clara

County Sheriff’s Department for assistance. During the time

that Koone was calling for aid, plaintiffs proceeded through

the gate at the entrance of the military base and walked

around the premises. There was no violence. Apparently, it was

all quite polite. Plaintiffs thought they had a right to be there

and Koone insisted they did not.

After Koone arranged for the call to be made, plaintiffs

returned to the entrance gate. Koone then placed plaintiffs

under citizen’s arrest. The word ”placed” should be used with

care, because it does not appear that Koone used any physical

APPENDIX B

restraint. It was strictly an intellectual exercise -- Koone

doing his job and plaintiffs proving a point. In fact, the

sheriff’s report indicates that plaintiffs asked whether they

were under arrest. Only at that time did Koone state that he

was making a citizen’s arrest. The events that followed are

not relevant to this motion because the Deputy Sheriff and

all other defendants have been dismissed from this action.

Koone is the sole remaining defendant.

Mr. Koone is a civilian employee of the United States Air

Force. His official title at the time of the incident in question

was “Maintenance Worker,” a job that entailed care and

maintenance of the “pickled” Air Force facility on Mt.

Umunhum,,the Almaden Air Force Station (hereafter, the

“radar station”). Koone was employed to keep facilities in

decent repair and free of vandalism pending immediate

reopening or disposal to another agency. One of the elements

of Koone’s job description was to “fsJerve as fa] security

guard at [the] site by reporting to [his] supervisor and [the|

county sheriff any trespassers upon [the] property.”

The United States (“U.S.” or the “government”) now has

made a motion to dismiss the complaint on the grounds of

qualified official immunity. The crucial question is whether

Koone acted unreasonably in arresting plaintiffs.

Ill. DISCUSSION

(A) Legal Background:

Formerly, there were two elements to be proven in order

to establish the affirmative defense of qualified immunity.

Supreme Court cases had established a test incorporating

both the objective and subjective circumstances of the

official’s actions. See Gomez v. Toledo, 444 U.S. 635, 641

(1980) (“The applicable test focuses not only on whether the

official has an objectively reasonable basis for that belief, but

also on whether the official himself is acting sincerely and

with a belief that he is doing right.”) In Harlow vy. Fitzgerald,

457 US. 800 (1982), the Court jettisoned the subjective

component of the test. Since Harlow, “officials are shielded

from liability for civil damages insofar as their conduct does

AD in cnn tyth Wenb wn 5 it

APPENDIX B

not violate clearly established statutory or constitutional

rights which a reasonable person would have known.” Jd. at

818; See also Davis v. Scherer, 468 U.S. 183, 191 (1984) (quoting

Harlow). Thus, whether Koone may prevail in his qualified

immunity defense depends “upon the objective reasonableness

of his conduct as measured by reference to clearly established

law. “Davis, 468 U.S. at 191, 2 quoting Harlow at 818. ”No

other circumstances are relevant to the issue of qualified

immunity.” Id.

(B) Analysis:

As they have on prior occasions in this litigation, plaintiffs

have done a fine job in preparing their own papers. Their

research relating to easements and rights of access is more

than respectable. Unfortunately, the relevant law is against

them. At the time of the incident, the radar station properly

belonged to the federal government. Furthermore, the land

was not committed to a public purpose as testified to by the

existence of the security gates and warning signs surrounding

the land. Thus, plaintiffs did not have a right to enter the radar

station properly itself. The only question is whether they had a

right of easement across the federal property via Mt.

Umunhum Road.

The evidence suggests that at best the question of whether

an easement existed is subject to a reasonable doubt. The

present owner of the radar station property is a group called

Midpeninsula Regional Open Space District (the “District”).

In response to a letter from a citizen regarding property, the

district stated that it “is the only land owner to have deeded

easement rights over Mt. Umunhum Road.” The District went

on to report that it has received a large yume of mail from

people contending that a prescriptive easement had arisen over

the roads in the Mt. Umunhum area, presumably including

that portion of the road passing through the radar station. The

point to be drawn from this response is that there exists some

doubt as to the legal status of the easement across the radar

Station property, if such an easement exists at all. In light of

this fact, defendant Koone acted reasonably both in instructing

plaintiffs that the radar base was restricted public property

APPENDIX B

and in subjecting them to a citizen’s arrest after plaintiffs

intentionally entered the property.

Two additional points buttress this conclusion. First, the

deputy sheriff who investigated Koone’s call concluded that

plaintiffs indeed were trespassing and he issued a citation to

plaintiffs for that offense. Second, the incident report of the

Sheriff's Department and the statements of the parties

indicate that plaintiffs did not remain on Mt. Umunhum

Road once they passed through the gate to the radar station

property, i.e., they did not limit their access to the |

“easement” itself. Apparently, plaintiffs wandered off on

some dirt trails for a brief period. Only upon their return

from their wanderings and after they asked whether they

were under arrest did Koone actually inform plaintiffs that

they were under citizen’s arrest. Once again, then, defendant

Koone acted quite reasonably and in conformance with

California law when he placed plaintiffs under citizen’s

arrest.

IV. CONCLUSION:

The undisputed facts show that qualified immunity is an

available and dispositive defense in this case. Koone acted

reasonably, obeying the law and not violating clearly

established rights belonging to plaintiffs. Therefore, the

Court HEREBY GRANTS defendants motion to dismiss.

IT IS SO ORDERED.

DATED: September 8, 1987

ROBERT P AGUILAR

United States District Judge

Di eteeeennineetalll

ee A Ao eas me ae

APPENDIX C

Docket No. 115

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MERCEDES L. GACETA

and,

NORMAN R. VUNCK

Plaintiffs NO. C 85 20386 RPA

vs ORDER DISMISSING

COUNTY Of SANTA DEFENDANT MURPHY

CLARA, et al.,

Defendants

The Court has reviewed defendant Kevin Murphy’s motion

to dismiss the second amended complaint and plaintiff’s

memorandum in opposition thereto. For good cause shown,

the Court finds that defendant Judge Murphy acted within his

jurisdiction as municipal court judge when plaintiffs appeared

before him on the arraignment calendar. Accordingly,

defendant Judge Murphy is absolutely immune from this

lawsuit.

It is hereby ORDERED that the second amended

complaint is dismissed with prejudice as to defendant Judge

Murphy.

DATED: July 25, 1986

/s/

ROBERT P AGUILAR

United States District Judge

APPENDIX D

Docket No. 075

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MERCEDES L. GACETA

and

NORMAN R. VUNCK,

Plaintiffs,|_ NO, C 85-20386 RPA R.

ORDER GRANTING

MOTIONS TO DISMISS

COUNTY OF SANTA

CLARA, et al,

Defendants.

Defendants Municipal Court Judge Nancy Hoffman and

court reporter James Sugiyama move to dismiss plaintiffs’

second amended complaint as to them on the ground that they

are immune from liability.

Having considered the memoranda submitted by both

parties, reviewed the pleadings, and good cause appearing

therefore, the Court finds as follows.

A judge is absolutely immune from liability for acts

performed in her judicial capacity. Stump v. Sparkman, 435

U.S. 349, 359 (1978); Dennis v. Sparks, 449 US. 24, 27 (1980).

A judge is subject to liability only when she has acted in the

“clear absence of all jurisdiction.” Stump, supra at 357.

Municipal Court Judge Nancy Hoffman, in finding

plaintiff Gaceta incompetent to conduct her own defense, and

in not accepting plaintiff Gaceta’s claim of special appearance

to challenge the jurisdiction of the municipal court, has not

acted in the “clear absence of jurisdiction.” The judge had

authority to head plaintiff Gaceta’s criminal matter and to

rule on the issue of the jurisdiction of the court.

APPENDIX D

Accordingly, the Court hereby grants defendant Nancy

Hoffman’s motion to dismiss on the ground of absolute

judicial immunity for acts performed in her judicial capacity.

Regarding defendant court reporter James Sugiyama, in

their second amended complaint, plaintiffs allege that he

deliberately falsified the transcripts of their July 23, 1984

arraignment hearing before Municipal Court Judge Kevin

Murphy, in order to affect the outcome of the proceedings

before this Court. They further allege that “Since there is no

reason why [he] could have any personal interest in the

content of the file, it must be presumed that someone else

did.”

Plaintiff thus allege no motive on the part of Sugiyama to

falsify the transcript, and suggest that he acted pursuant to

the instructions of someone superior to him, presumably

Judge Kevin Murphy.

Quali": tmmunity will be a defense for the acts of the

court reporter performed in the course of his official

conduct. Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974);

Green V. Maraio, 722 F2d 1013 (2nd Cir. 1983) (court reporter

who altered a trial transcript on the instruction of the judge

was entitled to the defense of qualified immunity under 42

U.SC. (1983 for actions carried out within the scope of the

judge’s instructions).

Accordingly, this court hereby grants defendant James

Sugiyama’s motion to dismiss on the ground of qualified

immunity for acts alleged to have been performed within the

scope of his official duties.

IT ISSO ORDERED.

DATED: May 14, 1986

ROBERT 2 AGUILAR

United States District Judge

on tn ae ainda. - linn

APPENDIX E

Docket No. 190

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MERCEDES L. GACETA

and NORMAN VUNCK,

Plaintiff, ,

VS. NO. C 85-20386 RPA

COUNTY OF SANTA ORDER GRANTING

CLARA. DWAYNE KOONE. | CERTAIN DEFENDANTS’

KEVIN MURPHY, NANCY MOTIONS FOR

HOFFMAN, JOHN WOoopy, | SUMMARY JUDGMENT

JOHN CONTRERAS,

JAMES SUGIYAMA,

GEORGIA ANDERSON

(TODD) and STEVEN

WOODSIDE

Defendants.

The Court has received, read and considered the papers

and pleadings submitted on the defendants’ motion for

summary judgment, and the Court has heard and considered

the oral argument of counsel. Good cause appearing

therefore, the Court finds and orders the following.

Initially, the Court notes that the plaintiffs have been

acting in pro se in this action, and the Court generally

commends them for their diligence in pursuing this action.

The Court has endeavored to assist the plaintiffs in reaching

the merits of their complaint by liberally construing their

papers, pleadings and arguments and by instructing the

plaintiffs of any deficiencies in their pleadings.

So, too, in this motion for summary judgment will the

Court liberally construe the law and view the evidence in the

light most favorable to the pro se plaintiffs here. The

defendants here bear the burden of demonstrating the lack of

APPENDIX E

any triable issue of material fact in this matter and of

thereby demonstrating that the defendants are entiiled to

judgment as a matter of law. The defendants must

demonstrate that no reasonable jury could find for the

plaintiffs under any reasonable interpretation of the evidence.

Each of four defendants move for summary judgment,

and the Court will address each of their claims separately.

John Contreras

Defendant Contreras moves for summary judgment on

the ground that he acted in good faith and in accordance with

state laws when he cited the plaintiffs for trespass pursuant to

the request of defendant Koone. The defendants argue that

Contreras is entitled to the defense of qualified immunity.

Contreras is a Deputy Sheriff with the Santa Clara County

Sheriff’s Department. As such he is a government official.

Government officers enjoy qualified immunity when

performing acts in the course and scope of their official

duties. That immunity serves to insulate the officer from

damage suits when: 1) reasonable grounds existed for the

belief that the action was appropriate (Objective belief); and 2)

the officer personally held that reasonable belief and acted in

good faith (subjective belief). See Scheuer v Rhodes, 416 US

232 (1974), Harris v City of Roseburg, 554 F 2d 1121 (9 Cir

1981).

The objective and subjective good faith of a defendant is

an affirmative defense, but it may be dispositive in a motion

for summary judgment. After the defendant raises and

supports the affirmative defense, the plaintiff must meet the

burden of supplying specific evidence which demonstrates

the existence of a material issue of fact.

The defendant Contreras has supplied evidence which

supports his argument that he acted in good faith. The

parties do not dispute that Contreras responded to a call from

defendant Koone, and when Contreras arrived at the scene,

Koone had placed the plaintiffs under citizen’s arrest for

trespass. It is also undisputed that Koone informed Contreras

that Koone was an agent of the federal government and that

Koone told Contreras that the plaintiffs had been trespassing

annette otche

APPENDIX E

on the Almaden Air Force Station property and that the

plaintiffs refused to leave when asked te de so. Deputy

Contreras also observed posted signs which stated that the

land was federal and private property and that trespassing

was prohibited. The parties further do not dispute that

Contreras issued a trespass citation in response to his

observations and Koone’s citizen’s arrest.

The plaintiffs do not contest the objective or subjective

good faith of Contreras. Instead, they argue that Contreras’

good faith is relevant only to the issue of the punitive

damages and that liability “depends solely upon a showing

that their arrest and imprisonment were in fact unlawful.”

Plaintiffs’ Memo in Opposition, at 9:24-25.

The plaintiffs fail to correctly interpret the law, and they

rely entirely upon their faulty interpretation. The plaintiffs’

misplaced reliance led them to supply no argument or

evidence which presents an issue of material fact as to either

the objective good faith or the subjective good faith of

Contreras. This is true even when the evidence is viewed in

the light most favorable to the plaintiffs.

Accordingly, the Court finds that, under the present state

of the record, no reasonable jury could find that Contreras

did not act in both objective and subjective good faith.

Therefore, the Court must GRANT the defendant Contreras’

motion for summary judgment.

Defendant Anderson is a member of the Santa Clara

County Sheriff’s Department and serves as courtroom

bailiff to Judge Murphy. Defendant Anderson took plaintiff

Gaceta into custody pursuant to an order of Judge Murphy.

Defendant Anderson asserts that she performed her acts

in both objective and subjective good fayh. The plaintiffs

again put forth no evidence or legal theory that raises a

triable issue of material fact as to Anderson’s good faith.

The court finds that no reasonable jury could find that

Anderson did not act in good faith. As a matter of law,

therefore, the Court finds that Anderson is immune from

liability for her acts which are tn question here. Accordingly,

APPENDIX E

the Court hereby GRANTS defendant Anderson’s motion for

summary judgment.

Defendant Woodside serves as assistant county counsel for

Santa Clara County. He represented the county defendants in

a lawsuit filed by plaintiffs in this Court (Case No.

C-84-20491-WAl). The plaintiffs dismissed that suit without

prejudice on 23 August 1984. Four days later, on 27 August

1984, Woodside, ignorant of the plaintiffs’ dismissal, moved

to dismiss the suit and filed papers in opposition to the

plaintiffs “Petition For Removal”. Through inadvertence,

defendant Woodside did not send copies of his motion to the

plaintiffs.

In their opposition, the plaintiffs present no evidence and

no legal theories which directly address Woodside’s motion

for summary judgment. Defendant Woodside undertook no

action which deprived the plaintiffs of a right, privilege or

immunity secured by the Constitution or law of the United

States. No reasonable jury could find otherwise.

Furthermore, Wooside is immune from liability for the

complained of actions which Woodside undertook in the

performance of his duties for the County.

Accordingly, the Court hereby GRANTS Wooside’s

motion for summary judgment.

(County of Clara County

In order to predicate liability under 42 U.S.C. § 1983, the

plaintiffs must allege that the defendant County has a

custom, policy or practice which deprived the plaintiffs of a

right, privilege or practice which deprived the plaintiffs of a

right, privilege or immunity secured by the Constitution or

laws of the United States Monell v New York City Dept of

Social Services, 436 U.S. 658, 690-695 (1978). A _ local

government entity cannot be held liable because it employs

tortfeasors. In other words, county governments cannot be

held liable under § 1983 on a respondeat superior theory. /d. at

691.

In this case, the plaintiffs complain of individual acts by

certain county employees, but the plaintiffs provide no

APPENDIX E

evidence whatsoever tending to show a custom, policy or

practice on behalf of the defendant County.

Accordingly, the Court hereby GRANTS the County of

Santa Clara’s motion for summary judgment.

summary

Based on the above reasoning, the Court GRANTS the

motions for summary judgment made by the defendants

Contreras, Anderson, Woodside and the County of Santa

Clara.

IT IS SO ORDERED.

DATED: July 13, 1987.

ROPERT P AGUILAR _

United States District Judge

APPENDIX F

California Penal Code

§142. Officer Refusing to Receive or Arrest Criminal -

Sheriff’s Determination of Facility Purpose and Class of

Prisoners.

(a) Any peace officer who has the authority to receive or

arrest a person charged with a criminal offense and willfully

refuses to receive or arrest such person shallbe punished by a

fine not esceeding [1] ten thousand dollars [2] ($10,000), or by

imprisonment in the state prison, or in a county jail not

esceeding one year, or by both such fine and imprisonment.

(b) Notwithstanding subdivision (a), the sheriff may

determine whether any jail, institution, or facility under his

direction shall be designated as a reception, holding, or

confinement facility, or shall be used for several of such

purposes, and may designate the class of prisoners for which

such facility shall be used.

LegH. 1872, 1957 ch. 139, 1970 ch. 829, 1976 ch. 1139,

operative July 1, 1977, 1979 ch. 169, 1983 ch. 1092, effective

September 27, 1983.

§170. Maliciously Procuring Search Warrant.

Every person who maliciously and without probable cause

procures a search warrant or warrant of arrest to be issued

and executed, is guilty of a misdemeanor. Leg.H. 1872.

§602. Trespasses constituting misdemeanors; enumeration

Every person who willfully commits a trespass by any of

the following acts is guilty of a misdemeanor:

(a) Standing timber. Cutting down, destroying, or injuring

any kind of wood or timber standing or growing upon the

lands of another.

(b) Carrying away timber. Carrying away any kind of

wood or timber lying on those lands.

injuring or severing from the freehold of another anything

attached to it, or its produce.

d) Soil removal. Digging, taking, or carrying away from

any lot situated within the limits of any incorporated city,

without the license of the owner or legal occupant, any earth,

APPENDIX F

soil, or stone.

(e) Soil removal from public property. Digging, taking, or

carrying away -from-and in any city or town laid down on

the map or plan of the city, or otherwise recognized or

established as a street, alley, avenue, or park, without the

license of the proper authorities, any earth, soil, or stone.

(() Highway signs, etc. Maliciously tearing down,

damaging, mutilating, or destroying any sign, signboard, or

notice placed upon, or affixed to, any property belonging to

the state, or to any city, county, city and county, town or

village, or upon any property of any person, by the state or

by an automobile association, which sign, signboard or notice

is intended to indicate or designate a road, or a highway, or Is

intended to direct travelers from one point to another, or

relates to fires, fire control, or any other matter involving the

protection of the property, or putting up, affixing, fastening,

printing, or painting upon any property belonging to the

state, or to any city, county, town, or village, or dedicated to

the public, or upon any property of any person, without

license from the owner, any notice, advertisement, or

designation of, or any name for any commodity, whether for

sale or otherwise, or any picture, sign, or device intended |

call attention to it.

(g) Oyster lands. Entering upon any lands owned by any

other person whereon oysters or other shellfish are planted or

growing; or injuring, gathering, or carrying away any oysters

or other shellfish planted, growing, or on any such lands,

whether covered by water or not, without the license of the

owner or legal occupant; or destroying or removing, or

causing to be removed or destroyed, any stakes, marks,

fences, or signs intended to designate the boundaries and

limits of any such lands.

(h) Fences, gates and signs. Willfully opening, tearing

down, or otherwise destroying any fence on the enclosed land

of another, or opening any gate, bar, or fence of another and

willfully leaving it open without the written permission o!

the owner, or maliciously tearing down, mutilating, or

destroying any sign, signboard, or other notice forbidding

APPENDIX F

shooting on private property.

(1) Fires. Building fires upon any lands owned by another

where signs forbidding trespass are displayed at intervals not

greater than one mile along the exterior boundaries and at all

roads and trails entering the lands, without first having

obtained written permission from the owner of the lands or

the owner’s agent, or the person in lawful possession.

(j) Purpose to injure. Entering any lands, whether

unenclosed or enclosed by fence, for the purpose of injuring

any property or property rights or with the intention of

interfering with, obstructing, or injuring any lawful business

or occupation carried on by the owner of the land, the

owner's agent or by the person in lawful possession.

(k) Posted lands. Entering any lands under cultivation or

enclosed by fence, belonging to, or occupied by, another, or

entering upon uncultivated or unenclosed lands where signs

forbidding trespass are displayed at intervals not less than

three to the mile along all exterior boundaries and at all

roads and trails entering the lands without the written

permission of the owner of the land, the owner’s agent or of

the person in lawful possession, and

(1) Refusing or failing to leave the lands immediately

upon being requested by the owner of the land, the owner's

agent or by the person in lawful possession to leave the

lands, or

(2) Tearing down, mutilating, or destroying any sign,

signboard, or notice forbidding trespass or hunting on the

lands, or

(3) Removing, injuring, unlocking, or tampering with

any lock on any gate on or leading into the lands, or

(4) Discharging any firearm.

(1) Occupation. Entering and occupying real property or

structures of any kind without the consent of the owner, the

owner's agent, or the person in lawful possession.

(m) Driving on private land. Driving any vehicle, as

defined in Section 670 of the Vehicle Code, upon real

property belonging to or lawfully occupied by another and

known not to be open to the general public, without the

APPENDIX F

consent of the owner, the owner's agent, or the person in

lawful possession.

(n) Refusal to leave private property. Refusing or failing to

leave land, real property, or structures belonging to or

lawfully occupied by another and not open to the general

public, upon being requested to leave by

(1) a peace officer at the request of the owner, the owner's

agent, or the person in lawful possession, and upon being

informed by the peace officer that he or she is acting at the

request of the owner, the owner’s agent, or the person in

lawful possession, or

(2) the owner, the owner’s agent, or the person in lawful

possession. The owner, the owner's agent, or the person in

lawful possession shall make a separate request to the peace

officer on each occasion when the peace officer’s assistance

in dealing with a trespass is requested. However, a single

request for a peace officer's assistance may be made to cover

a limited period of time not to exceed 30 days and identified

by specific dates, during which there 1s a fire hazard or the

owner, owner’s agent or person in lawful possession is absent

from the premises or property. In addition, a single request

for a peace officer's assistance may be made for a period not

to exceed six months when the premises or property is closed

to the public and posted as being closed. However, this

subdivision shall not be applicable to persons engaged in

lawful labor union activities which are permitted to be

carried out on the property by the California Agricultural

Labor Relations Act, Part 3.5 (Commencing with Section

1140) of Division 2 of the Labor Code, or by the National

Labor Relations Act.

(0) Closed lands. Entering upon any lands declared closed

to entry as provided in Section 4256 of the Public Resources

Code, if the closed areas shall have been posted with notices

declaring the closure, at intervals not greater than one mile

along the exterior boundaries or along roads and trails

passing through the lands.

(p) Refusal to leave public building. Refusing or failing to

leave a public building of a public agency during those hours

‘5

APPENDIX F

of the day or night when the building is regularly closed to

the public upon being requested to do so by a regularly

employed guard, watchman, or custodian of the public

agency Owning or maintaining the building or property, if

the surrounding circumstances are such as to indicate to a

reasonable man that the person has no apparent lawful

business to pursue.

(q) Skiing in closed area. Knowingly skiing in an area or

on a ski trail which is closed to the public and which has

signs posted indicating the closure.

(r) Hotels or motels. Refusing or failing to leave a hotel or

motel, where he or she has obtained accommodations and

has refused to pay for those accommodations, upon request

of the proprietor or manager, and the occupancy is exempt,

pursuant to subdivision (b) of Section 1940 of the Civil

Code, from Chapter 2 Commencing with Section 1940) of

Title S of Part 4 of Division 3 of the Civil Code.

(s) Entry on private property by person convicted of

violent felony. Entering upon private property, including

contiguous land, real property, or structures thereon

belonging to the same owner, whether or not generally open

to the public, after having been informed by a peace officer

at the request of the owner, the owner’s agent, or the person

in lawful possession, and upon being informed by the peace

officer that he or she is acting at the request of the owner,

the owner’s agent, or the person in lawful possession, that

the property is not open to the particular person; or refusing

or failing to leave the property upon being asked to leave the

property in the manner provided in this subdivision. This

subdivision shall apply only to a person who has been

convicted of a violent felony, as specified in subdivision (c) of

Section 667.5, committed upon the particular private

property. A single notification or request to the person as set

forth above shall be valid and enforceable under this

subdivision unless and until rescinded by the owner, the

owner’s agent, or the person in lawful possession of the

property.

Leg.H. 1872, 1874 p. 434, 1877 p. 118, 1905 p. 686, 1917 p.

APPENDIX F

319, 1927 p.1339, 1929 p. 1179, 1931 ch. 693. 1941 ch. 578, 1945

ch. 403, 1947 ch.647, 1949 ch. 1333, 1957 ch. 2013, 1963 ct

1299. 1967 ch. 1187, 1969 ch. 43, 1970 chs. 1607, 1608, 1977

ch. 870 (1, 1978 ch. 1392, 1981 ch.349, 1982 ch. 312, effective

June 28. 1982, 1983 ch. 199.'602. 1983 Deletes. 1. such 2

thereto 3. the 4. thereof 5. thereof 6. such 7. or roads &. or

highways 9. thereto 10. being ll.thereof 12.such 13. such 14

his 15. thereof 16. such 17. his 18. such 19.such 20.his 21. such

22. such 23. his 24. such 25. such 26. such 27. his 28.thereo!

29. his 30. thereof 31. and 32. his 33. thereof 34. his

35.thereof; provided, however, that clause (2) of 36.; provided,

such 37.such 38. such 39. such 40. such Ref.: Cal Fms Pl & Pr,

"Assemblies and Meetings.”; W. Cal. Sum., ”Torts” (350

8740. Public Offenses Prosecuted by Written Complaint

Except as otherwise provided by law, all public offenses

triable in the inferior courts must be prosecuted by written

complaint under oath subscribed by the complainant. Such

complaint may be verified on iniormation and belief. Leg.H

1951 ch. 1674. Ref: Cal Fms Pl & Pr, "Criminal!

Procedure(Pts I, VIII). §834. Who May Make and Acts

Constituting. An arrest is taking a person Into custody, In a

case and in the manner authorized by law. An arrest may be

made by a peace-officer or by a private person Leg.H. 1872

§807. Magistrate Defined

A magistrate is an officer having the power to issue a

warrant for the arrest of a person charged with a public

iffense

LegH. 1872

$836. Arrest Under Warrant - Peace Ojlicer

A peace officer may make an arrest In obedience to

warrant, or may, pursuant to the authority granted him by

the provisions of Chapter 4.5 (Commencing with Sectior

830) of Title 3 of Part 2, without a warrant, arrest a person

| Whenever he has reasonable cause to believe thal the

person to be arrested has committed a public offense in his

presence

2. When a person arrested has committed a felony,

APPENDIX F

although not in his presence.

3. Whenever he has reasonable cause to believe that the

person to be arrested has committed a felony, whether or not

a felony has in fact been committed.

$837. Private persons; authority to arrest Arrests by Private

Persons.

A private person may arrest another:

1. For a public offense committed or attempted in his

presence.

2. When the person arrested has committed a felony,

although not in his presence.

3. When a felony has been in fact committed, and he has

reasonable cause for believing the person arrested to have

committed it. Leg.H. 1872.

California Penal Code §838. Magistrate; oral order to

officer or private person to arrest Magistrates May Order

Arrest. A magistrate may orally order a peace officer or

private person to arrest any one committing or attempting to

commit a public offense in the presence of such magistrate.

$847. Arrest by private person; duty to take prisoner before

magistrate or deliver him to peace officer; liability for false

arrest.

A private person who has arrested another for the

commission of a public offense must, without unnecessary

delay, take the person arrested before a magistrate, or deliver

him to a peace officer. There shall be no civil liability on the

part of and no cause of action shall arise against any peace

officer, acting within the scope of his authority, for false

arrest or false imprisonment arising out of any arrest when:

(a) Such arrest was lawful or when such peach officer, at

the time of such arrest had reasonable cause to believe such

arrest was lawful; or

(b) When such arrest was made pursuant to a charge

made, upon reasonable cause, of the commission of a felony

by the person to be arrested; or

requirements of Penal Code Sections 142, 838 or

APPENDIX F

839.(Enacted 1872. Amended by Stats. 1957, c. 2147, p. 3806

m5)

§849. Duty of Officer to Take Accused Before magistrate

Release From Custody.

(a) When an arrest is made without a warrant by a peace

officer or private person, the person arrested, if not

otherwise release, shall, without unnecessary delay, be taken

before the nearest or most accessible magistrate in the county

in which the offense is triable, and a complaint stating the

charge against the arrested person shall be laid before such

magistrate.

(b) Any peace officer may release from custody, instead

of taking such person before a magistrate, any person

arrested without a warrant whenever:

(1) He is satisfied that there are insufficient grounds for

making a criminal complaint against the person arrested.

(2) The person arrested was arrested for intoxication

only, and no further proceedings are desirable.

(3) The person was arrested only for being under the

influence of a narcotic, drug, or restricted dangerous Crug

and such person is delivered to a facility or hospital for

treatment and no further proceedings are desirable.

paragraphs (1) and (3) of subdivision (b) shall include a

record of release. Thereafter, such arrest shall not be deemed

an arrest, but a detention only.

Leg.H 1872, w935 ch. 817, 1957 ch. 2147, 1969 ch. 1259,

1970 ch. 1603, 1971 ch. 438.

§853.6 Notice to appear; contents; bail; warrant, reason

for nonrelease

(a) In any case in which a person ts arrested for an offense

declared to be a misdemeanor, including violation of any city

or county ordinance, and does not demand to be taken before

a Magistrate, that person shall, instead of being taken before

a magistrate, be released according to the procedures set

forth by this chapter. If this person is released, the officer or

superior shall prepare in duplicate a written notice to appear

APPENDIX F

in court, containing the name and address of the person, the

offense charged, and the time and place where and when the

person shall appear in court. If, pursuant to subdivision (i),

the person is not released prior to being booked and the

officer in charge of the booking or his or her superior

determines that the person should be released, the officer or

superior shall prepare a written notice to appear in a court.

(b) Unless waived by the person, the time specified in the

notice to appear must be at least 10 days after arrest if the

duplicate notice is to be filed by the officer with the

magistrate.

the magistrate before whom the person would be taken if the

requirement of taking an arrested person before a magistrate

were complied with, or shall be an officer authorized by that

court to receive a deposit of bail.

(d) The officer shall deliver one copy of the notice to

appear to the arrested person, and the arrested person, in

order to secure release, shall give his or her written promise

SO to appear in court by signing the duplicate notice which

shall be retained by the officer. Thereupon the arresting

officer shall immediately release the person arrested from

custody.

(e) The officer shall, as soon as practicable, file the

duplicate notice, as follows:

(1) It shall be filed with the magistrate if the offense

charged is an infraction.

(2) It shall be filed with the magistrate if the prosecuting

attorney has previously directed the officer to do so.

(3) The duplicate notice and underlying police reports in

support of the charge or charges shall be filed with the

prosecuting attorney in cases other than those specified in

paragraphs (1) and (2). If the duplicate notice is filed with

the prosecuting attorney, he or she, within his or her

discretion, may initiate prosecution by filing the notice or a

formal complaint with the magistrate specified therein

within 25 days from the time of arrest. If the prosecution is

not to be initiated, the prosecutor shall send notice to the

APPENDIX F

person arrested at the address on the notice to appear. The

failure by the prosecutor to file the notice or formal

complaint within 25 days of the time of the arrest shall not

bar further prosecution of the misdemeanor charged in the

notice to appear; however, any further prosecution shall be

preceded by a new and separate citation or an arrest warrant.

Upon the filing of the notice with the magistrate by the

officer, or the filing of the notice or formal complaint by the

prosecutor, the magistrate may fix the amount of bail which

in his or her judgment, in accordance with the provisions of

Section 1275, will be reasonable and sufficient for the

appearance of the defendant and shall endorse upon the

notice a statement signed by him or her in the form set forth

in Section 815a. The defendant may, prior to the date upon

which he or she promised to appear in court, deposit with the

magistrate the amount of bail thus set. Thereafter, at the

time when the case is called for arraignment before the

magistrate, if the defendant shall not appear, either in person

or by counsel, the magistrate may declare the bail forfeited,

and may in his or her discretion order that no further

proceedings shall be had in such case, unless the defendant

has been charged with violation of Section 374b or 374e of

this code or of Section 11357, 11360, or 13002 of the Health

and Safety Code, or a violation punishable under Section

5008.7 of the Public Resources Code, and he or she has

previously been convicted of a violation of that section or a

violation which is punishable under that section, except in

cases where the magistrate finds that undue hardship will be

imposed upon the defendant by requiring him or her to

appear, the magistrate may declare the bail forfeited and

order that no further proceedings shall be had in such case

Upon the making of such order that no further proceedings

be had, all sums deposited as bail shall forthwith be paid into

the county treasury for distribution pursuant to Section 1463.

(f) No warrant shall issue on such charge for the arrest of

a person who has given such a written promise to appear in

court, unless and until he or she has violated that promise or

has failed to deposit bail, to appear for arraignment, trial or

APPENDIX F

judgment, or to comply with the terms and provisions of the

judgment, as required by law.

(g) The officer may either book the arrested person, as

defined in subdivision 21 of Section 7, prior to release or

indicate on the citation that the arrested person shall be

booked. In the event it is indicated on the citation that the

arrested person is to be booked, the magistrate shall, before

the proceedings are finally concluded, order the defendant to

be booked by the arresting agency.

(h) A peace officer shall use the written notice to appear

procedure set forth in this section for any misdemeanor

offense in which the officer has arrested a person without a

warrant pursuant to Section 836 or in which he or she has

taken custody of a person pursuant to Section 847.

(1) Whenever any person is arrested by a peace officer for

a misdemeanor, that person shall be released according to

the procedures set forth by this chapter unless one of the

following is a reason for nonrelease, in which case the

arresting officer may release the person, or the arresting

officer shall indicate, on a form to be established by his or

her employing law enforcement agency, which of the

following was a reason for the nonrelease.

(1) The person arrested was so intoxicated that he or she

could have been a danger to himself or herself or to others.

(2) The person arrested required medical examination or

medical care or was otherwise unable to care for his or her

own Safety.

(3) The person was arrested under one or more of the

circumstances listed in Sections 40302 and 40303 of the

Vehicle Code.

(4) There were one or more outstanding arrest warrants

for the person.

(S) The person could not provide satisfactory evidence of

personal identification.

(6) The prosecution of the offense or offenses for which

the person was arrested or the prosecution of any other

offense or offenses would be jeopardized by immediate

release of the person arrested.

APPENDIX F

(7) There was a reasonable likelihood that the of fence or

offenses would continue or resume, or that the safety of

persons or property would be imminently endangered by

release of the person arrested.

(8) The person arrested demanded to be taken before a

magistrate or refused to sign the notice to appear.

(9) There is reason to believe that the person would not

appear at the time and place specified in the notice. The basis

for this determination shall be specifically stated. The form

shall be filed with the arresting agency as soon as practicable

and shall be made available to any party having custody of

the arrested person, subsequent to the arresting officer, and

to any person authorized by law to release him or her to

custody before trail.

§853.9 Copy of written notice to appear as complaint,

procedure:

(a) Whenever written notice to appear has been prepared,

delivered, and filed by an officer or the prosecuting attorney

with the court pursuant to the provisions of Section 853.6 of

this code, an exact and legible duplicate copy of the notice

when filed with the magistrate, in lieu of a_ verified

complaint, shall constitute a complaint to which the

defendant may plead “guilty” or "nolo contendere.” If,

however, the defendant violates his or her promise to appear

in court, or does not deposit lawful bail, or pleads other than

“guilty” or “nolo contendere” to the offense charged, a

complaint shall be filed which shall conform to the

provisions of this code and which shall be deemed to be an

original complaint; and thereafter proceedings shall be had as

provided by law, except that a defendant may, by an

agreement in writing, subscribed by him or her and filed

with the court, waive the filing of a verified complaint and

elect that the prosecution may proceed upon a written notice

to appear.

(b) Not withstanding the provisions of subdivision (a) of

this section, whenever the written notice to appear has been

prepared on a form approved by the Judicial Council, an

APPENDIX F

exact and legible duplicate copy of the notice when filed with.

the magistrate shall constitute a complaint to which the

defendant may enter a plea and, if the notice to appear is

verified, upon which a warrant may be issued. If the notice

to appear is verified, the defendant may, at the time of

arraignment, request that a verified complaint be filed.

§949. First Pleading.

The first pleading on the part of the people in the

superior court is the indictment, information, accusation or

the complaint in any case certified to the superior court

under the provisions of Section 859a or the complaint filed

in accordance with the provisions of Section 702 of the

Welfare and Institutions Code. The first pleading on the part

of the people in all inferior courts is the complaint except as

otherwise provided by law. Leg.H. 1872, 1880 p. 12, 1951 ca.

1674,

$950. Formal Parts of Accusatory Pleading.

he accusatory pleading must contain:

|. The title of the action, specifying the name of the

court to which the same is presented, and the names of the

parties:

2. A statement of the public offense of the offenses

charged therein. LegH. 1872, 1880 p. 12, 1951 ch. 1674.

$952. Charging Offense.

In charging an offense, each count shall contain, and

shall be sufficient if it contains in substance, a statement that

the accused has committed some public offense therein

specified. Such statement may be made in ordinary and

concise language without any technical averments or any

allegations of matter not essential to be proved. It may be in

the words of the enactment describing the offense or

declaring the matter to be a public offense, or in any words

sufficient to give the accused notice of the offense of which

he is accused. In charging theft it shall be sufficient to allege

that the defendant unlawfully took the labor or property of

another. Leg.H. 1872, 1927 p. 1043, 1929 ch. 159.

APPENDIX F

§959. Allegations Deemed Sufficient.

The accusatory pleading is sufficient if it can be

understood therefrom:

1. That is it filed in a court having authority to receive it,

though the name of the court be not stated.

2. If an indictment, that it was found by a grand jury of

the county in which the court was held, or if an information,

that is was subscribed and presented to the court by the

district attorney of the county in which the court was held...

3. If a complaint, that it is made and subscribed by some

natural person and sworn to before some officer entitled to

administer oaths.

4. That the defendant is named, or, if his name is

unknown, that he is described by a fictitious name, with a

statement that his true name is to the grand jury, district

attorney, or complainant, as the case may be, unknown.

5. The the offense charged therein is triable in the court

in which it is filed, except in the case of a complaint filed

with a magistrate for the purposes of a preliminary

examination.

6. That the offense was committed at some time prior to

the filing of the accusatory pleading. Leg.H. 1872, 1880 p. 13,

1927 ch. 610, 1935 ch. 198, 1951 ch. 1674.

§960. Formal Defects Harmless.

No accusatory pleading is insufficient, nor can the trial,

judgment, or other proceeding thereon be affected by reason

of any defect or imperfection in matter of form which does

not prejudice a substantial right of the defendant upon the

merits. Leg.H. 1872, 1880 p. 14, 1927 ch. 632, 1951 ch. 1674.

$988. Who May arraign and Form of Arraignment.

The arraignment must be made by the court, or by the

clerk, or prosecuting attorney under its direction, and consists

in reading the accusatory pleading to the defendant and

delivering to him a true copy thereof, and of the

endorsements thereon, if any, including the list of witnesses,

and asking him whether he pleads guilty or not guilty to the

accusatory pleading; provided that where the accusatory

APPENDIX F

pleading is a complaint charging a misdemeanor triable in

an inferior court, a copy of the same need not be delivered to

any defendant unless requested by him.

LegH. 1872, 1880 p. 16, 1909 p. 1127, 1911 p. 435, 1951 ch.

1674.

§991. Probable cause determination; misdemeanor to which

defendant has pleaded not guilty; motion by defendant;

setting for trial or dismissal and discharge; refiling

complaint.

(a) If the defendant is in custody at the time he appears

before the magistrate for arraignment and, if the public

offense is a misdemeanor to which the defendant has pleaded

not guilty, the magistrate, on motion of counsel for the

defendant or the defendant, shall determine whether there is

probable cause to believe that a public offense has been

committed and that the defendant is guilty thereof.

(b) The determination of probable cause shall be made

immediately unless the court grants a continuance for good

cause not to exceed three court days.

magistrate shall consider any warrant of arrest with

supporting affidavits, and the sworn complaint together with

any documents or reports incorporated by reference thereto,

which, if based on information and belief, state the basis for

such information, or any other documents of similar

reliability.

qd) If, after examining these documents, the court

determines that there exists probable cause to believe that the

defendant has committed the offense charged in the

complaint, it shall set the matter for trial. If the court

determines that no such probable cause exists, it shall

dismiss the complaint and discharge the defendant.

) Within 15 days of the dismissal of a complaint

pursuant to this section the prosecution may refile the

complaint. A second dismissal pursuant to this section is a

bar to any other prosecution for the same offense.

APPENDIX F

§1002. Defendant Limited to Demurrer or Plea.

The only pleading on the part of the defendant is either a

demurrer or a plea. Leg.H. 1872

§1003. Time to Plead or Demur.

Both the demurrer and plea must be put in, in open court,

wither at the time of arraignment or at such other time as

may be allowed to the defendant for that purpose. Leg.H.

1872.

§1004. Grounds.

The defendant may demur to the accusatory pleading at

any time prior to the entry of a plea, when it appears upon

the face thereof either:

1. If an indictment, that the grand jury by which it was

found had no legal authority to inquire into the offense

charged, or, if an information or complaint that the court has

no jurisdiction of the offense charged therein;

2. That it does not substantially conform to the provisions

of Sections 950 and 952, and also Section 951 in case of an

indictment or information;

3. That more than one offense is charged, except as

provided in Section 954;

4. That the facts stated do not constitute a public offense;

5. That it contains matter which, if true, would constitute

a legal justification or excuse of the offense charged, or other

legal bar to the prosecution. Leg.H. 1872, 1880 p. 18, 1905 p.

772, 1951 ch. 1647.

§1427. Warrant; issuance; form; summons on offense by

corporation; service; appearance and answer by corporation;

nonappearance.

(a) When a complaint is presented to a judge of an

inferior court of the commission of a public offense

appearing to be triable in his court, he must, if satisfied

therefrom that the offense complained of has been

committed and that there is reasonable ground to believe that

the defendant has committed it, issue a warrant, for the arrest

of the defendant.

APPENDIX F

(b) Such warrant of arrest and proceedings upon it shall

be in conformity to the provisions of this code regarding

warrants of arrest, and it ray be in the following form:

Coumtty @o sweets 3 6e--—-- The

people of the State of California, to any peace officer in this

state: Complaint upon oath having been this day made before

me that the offense of -----------------

designating it generally) has been committed and accusing

LL OL SND SD (name of defendant) thereof

you are therefore commanded forthwith to arrest the above-

named defendant and bring him forthwith before the

Se ee ee me court of

ao aR a ate atibceettimenca (stating full title of court) at

a den al sg ln nnn mma een enema (naming

place). Witness my hand and the seal of said court this

ee eee i eenesmenenes $9 cn,

a ii a aan meneame Judge of

said court If it appears that the offense complained of has

been committed by a corporation, no warrant of arrest shall

issue, but the judge must issue a summons substantially in

the form prescribed in Section 1391. Such summons must be

served at the time and in the manner designated in Section

1392 except that if the offense complained of is a violation of

the Vehicle Code or a local ordinance adapted pursuant to the

Vehicle Code, such summons may be served by deposit by

the clerk of the court in the United States mail of an

envelope enclosing the summons, which envelope shall be

addressed to a person authorized to accept service of legal

process on behalf of the defendant, and which envelope shall

be mailed by registered mail or certified mail with a return

receipt requested. Promptly upon such mailing, the clerk of

the court shall execute a certificate of such mailing and

place it in the file of the court for that case. At the time

stated in the summons the corporation may appear by

counsel and answer the complaint; except that in the case of

misdemeanors arising from operation of motor vehicles, or

of infractions arising from operation of motor vehicles, a

corporation may appear by its president, vice president,

APPENDIX F

secretary or managing agent for the purpose of entering a

plea of guilty. If it does not appear, a plea of not guilty shall

be entered, and the same proceedings had therein as in other

cases. (Enacted 1872. Amended by Stats, 1905, c. 543, p. 706,

& 2; Stats. 1951. c. 1674, p. 3857, & 146; Stats. 1953, c. 613, p.

1860, & 5, Stats. 1955, c. 720, p. 12 10, & 1; Stats. 1969, c.

1278, p. 2500, & 1; Stats. 1973, c. 718, p. 1296, & 3.)

U.S Codes

28 USC § 2680. Exceptions

The provisions of this chapter and section 1346/(b) of this

title shall not apply to -

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency

or an employee of the Government, whether or not the

discretion involved be abused.

(b) Any claim arising out of the loss, miscarriage, or

negligent transmission of letters or postal matter.

() Any claim arising in respect of the assessment or

collection of any tax or customs duty, or the detection of any

goods or merchandise by any officer of customs or excise or

any other law-enforcement officer.

qd) Any claim for which a remedy is provided by sections

741-752, 781-790 of Title 46, relating to claims or suits in

admiralty against the United States.

(e) Any claim arising out of an act or omission of any

employee of the Government in administering the provisions

of sections 1-31 of Title 50, Appendix.

(f) Any claim for damages caused by the imposition or

establishment of a quarantine by the United States.

(g) Repealed. Sept. 26, 1950, c. 1049, & 13(5), 64 Stat.

1043.

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of

APPENDIX F

process, libel, slander, misrepresentation, deceit, or

interference with contract rights.

(i) Any claim for damages caused by the fiscal operations

of the Treasury or by the regulation of the monetary systern.

(j) Any claim arising out of the combatant activities of

the military or naval forces, or the Coast Guard, during time

of war.

(k) Any claim arising in a foreign country.

(1) Any claim arising from the activities of the Tennessee

Valley Authority.

(m) Any claim arising from activities of the Panama

Canal Company.

(n) Any claim arising from the activities of a Federal land

bank, a Federal intermediate credit bank, or a bank for

cooperatives. e by the defendant, may also quash service of

process where service was effectuated by force or fraud or

where the person served was entitled to an immunity from

service of process.

PUBLIC LAW 100-694 [H.R. 4612]; November 18, 1988

FEDERAL EMPLOYEES LIABILITY REFORM

AND TORT COMPENSATION ACT OF 1988

For Legislative History of Act, see p. 5945.

An act to amend title 28 United States Code, to provide

for an exclusive remedy against United States for suits based

upon certain negligent or wrongful acts or omissions of

United States employees committed within the scope of their

employment, and for other purposes.

Be it enacted by the Senate and House of

Representatives of the United States of America in Congress

assembled,

SECTION 1. SHORT TITLE

This Act may be cited as the “Federal Employees

Liability Reform and Tort Compensation Act of 1988”.

APPENDIX F

SEC. 2 FINDINGS AND PURPOSES.

(a) FINDINGS. - The Congress finds and declares the

following: (1) For more than 40 years the Federal Tort

Claims Act has been the legal mechanism for compensating

persons injured by negligent or wrongful acts of Federal

employees committed within the scope of their employment.

(2) The United States, through the Federal Tort Claims

Act, is responsible to injured persons for the common law

torts of its employees in the same manner in which the

common law historically has recognized the responsibility of

an employer for torts committed by its employees within the

scope of their employment.

(3) Because Federal employees for many years have been

protected from personal common law tort liability by a broad

based immunity, the Federal Tort Claims Act has served as

the sole means for compensating persons injured ny the

tortious conduct of Federal employees.

(4) Recent udicial decisions, and particularly the decision

of the United States Supreme Court in Westfall v. Erwin

have seriously eroded the common law tort immunity

previously available to Federal employees.

(5) This erosion of immunity of Federal employees frorr

common law tort liability has created an immediate crisis

involving the prospect of personal liability and the threa

protracted personal tort litigation for the entire Federa

work force.

(6) The prospect of such liability will serious!

undermine the morale and well being of Federal employees

impede the ability of agencies to carry %ut their missions

and diminish the vitality of the Federal Tort Claims Act as

the proper remedy for Federal Employee torts.

(7). In tts opinion in Westfall v. Erwin, the Supremerm

Court indicated that the Congress is in the best position

determine the extent to which Federal employees should be

personally liable for common law torts, and that legislative

consideration of this matter would be useful

APPENDIX F

(b) PURPOSE. - It is the purpose of this Act to protect

Federal employees from personal liability for common law

torts committed within the scope of their employment, while

providing persons injured by the common law torts of Federal

Employees with an appropriate remedy against the United

| States.

SEC. 3. JUDICIAL AND LEGISLATIVE BRANCH

EMPLOYEES.

Section 2671 of title 28, United States Code, is amended

in the first full paragraph by inserting after “executive

departments,” the following: “the judicial and legislative

branches,”.

SEC. 4. RETENTION OF DEFENSES.

Section 2674 if title 28, United States Code is amended

by adding at the end of the section the following new

paragraph: “With respect to any claim under this chapter, the

United States shall be entitled to assert any defense based upon

judicial or legislative immunity which otherwise would have

been available to the employee of the United States whose act

or omission gave rise to the claim, as well as any other

defenses to which the United States is entitle.”.

SEC. 5. EXCUSIVENESS OF REMEDY.

Section 2679(b) of title 28, United States Code, is

amended to read as follows: “(b)(1) The remedy against the

United States provided by sections 1346(b) and 2672 of this

title for injury or loss of property, or personal injury or death

arising or resulting from the negligent or wrongful act or

omission of any employee of the Government while acting

within the scope of his office or employment is exclusive of

any other civil action or proceeding for money damages by

reason of the same subject matter against the employee whose

act OF omission gave rise to the claim against the estate of

such employee. Any other civil action or proceeding for

money damages arising out of or relating to the same subject

matter against the employee or the employee's estate is

precluded without regard to when the act or omission

occurred. “(2) Paragraph (1) does not extend or apply to a civil

APPENDIX F

action against an employee of the Government - “(A) which

is brought for a violation of the Constitution of the United

States or “(B) which is brought for a violation of a statute of

the United States under which such action against an

individual is otherwise authorized.”.

SEC. 6. REPRESENTATION AND REMOVAL.

Section 2679) of title 28, United States Code, Is

amended to read as follows:

“@)

(1) Upon certification by the Attorney General that the

defendant employee was acting within the scope of his office

or employment at the time of the incident of which the claim

arose, any civil action or procedding commenced upon such

claim in a United States district court shall be deemed an

action against the United States under the provisions of this

title and all references thereto, and the United States shall be

substituted as the party defendant.

“(2) Upon certification by the Attorney General that the

defendant employee was acting within the scope of his office

or employment at the time of the incident out of which the

claim arose, any civil action or proceeding commenced upon

such clain in a State court shall be removed without bond at

any time before trial by the Attorney General to the distric'

court of the United States for the district and division

embracing the place in which the action or proceeding is

pending. Such action or proceeding shall be deemed to be an

action or proceeding brought against the United States under

the provision of this title and all references thereto, anc the

Unted States shall be substituted as the party defendant. This

certification of the Attorney General shall conclusively

establsih scope of office or employment for purposes o!

removal.

“(3) In the event that the Attorney General has refused \

certify scope of office or employment under this section, the

employee may at any time before trial petition the court |

find and certify that the employee was acting within the

scope of his office or employment. Upon such certification

by the court, such action or proceeding shall be deemed to be

APPENDIX F

an action or proceeding brought against the United States

under the provisions of this title and all references threto, and

the Untied States shall be subsituted as the party defendant. A

copy of the petition shall be served upon the United States in

accordance with the provisions of Rule 4(d)(4) of the Federal

Rules of Civil Procedure. In the event the petition is filed in a

civil action or proceeding pending in a State court, the action

or proceeding may be removed without bond by the Attorney

General to the district court of the United States for the

district and division embracing the place in which it is

pending. If, in considering the petition, the district court

determines that the employee was not acting within the scope

of his office or or employment, the action or proceeding shall

be remanded to the State court.

“(4) Upon certification, any action or proceeding subject to

paragraph (1), (2), or (3) shall proceed in the same manner as

any action against the United States filed pursuant to section

1346(b) of this title and shall be subject to the limitations and

exceptions applicable to those actions.

“(S) Whenever an action or proceeding in which the

United States is substituted as the party defendant under this

subsection is dismissed for failure first to present a claim

pursuant to section 2675(a) of this title, such a claim shall be

deemed to be timely presented under section 240(b) of this

title if -

“(A) the claim would have been timely had it been filed on

the date the underlying civil action was commenced, and “(B)

the claim was presented to the appropriate Federal agency

within 60 days after dismissal of the civil action.”.

SEC. 7. SEVERABILITY.

If any provision of this Act or the amendments made by

this Act or the application of the provision to any person or

circumstances is held invalid, the remainder of this Act and

such amentments and the application of the provision to any

other person or circumstance shall not be affected by that

invalidation.

APPENDIX F

SEC. 8. EFFECTIVE DATE.

(a) GENERAL RULE.- This Act and the amendments

made by this Act shall take effect on the date of the

enactment of this Act.

(b) APPLICABILITY TO PROCEEDINGS. The

amendments made by this Act shall apply to al! claims, ctvi!

actions, and proceedings pending on, or filed on or after, the

date of the enactment of this Act.

(¢) PENDING STATE PROCEEDINGS.- With respect to

any civil action or proceeding pending in a State court to

which the amendments made by this Act apply, and as to

which the period for removal under section 2679@) of title

28, United States Code (as amended by section 6 of this Act).

has expired, the Attorney General shall have 60 days after

the date of the enactment of this Act during which to seek

removal under such section 2679@).

q@) CLAIMS ACCRUING BEFORE ENACTMENT

With respect to any civil action or proceedingg to which the

amendments made by this Act apply in which the claim

accrued before the date of the enactment of this Act, the

period which the claim shall be deemed to be timely

presented under séction 267)(5) of title 28, United States

Code (as amended by section 6 of this Act) shall be thai

period within which the claim could have been timely filed

under applicable State law, but in no event shal! such period

exceed two years from the date of the enactment of this Act

SEC. 9. TENNESSEE VALLEY AUTHORITY.

(a) EXCLUSIVENESS OF REMEDY.-(1) An actior

against the Tenessee Valley Authority for injury or loss o!

property, or personal injury or death arising or resulting from

the negligent or wrongful act or omission of any employee o!

the Tenessee Valley Authority while acting within the scope

of this office or employment is exclusive of any other civil

action or proceeding by reason of the same subject matter

against the employee or his estate whose act or omission gave

rise to the claim. Any other civil action or proceeding arising

APPENDIX F

out of or relating to the same subject matter against the

employee or his estate is precluded without regard to when the

act or omission occurred.

(2) Paragraph (1) does not extend or apply to a cognizable

action against an employee of the Tennessee Valley Authority

for money damages for a violation of the Constitution of the

United States.

(b) REPRESENTATION AND REMOVAL.- (1) Upon

certification by the Tennessee Valley Authority that the

defendant employee was acting within the scope of his office

or employment 2t the time of the incident out of which the

claim arose, any civil action or proceeding heretofore or

hereafter commenced upon such claim in a United States

district court shall be deemed an action against the Tennessee

Valley Authority pursuant to 16 USC. 831C(b) and the

Tennessee Valley Authority shall be subsituted as the party

defendant. (2) Upon certification by the Tennessee Valley

Authority that the defendant employee was acting within the

scope of his office or employment at the time of the incident

out of which the claim arose, any civil action or proceeding

commenced upon such claim in a State court shall be

removed without bond at any time before trial by the

Tennessee Valley Authority to the district court of the United

States for the district and division embracing the place wherein

it ts pending. Such action shall be deerned an action brought

against the Tennessee Valley Authority under the provisions of

this title and all references thereto, and the Tennessee Valley

Authority shall be substituted as the party defendant. This

certification of the Tennessee Valley Authority shall

conclusively establish scope of office or employment for

purposes of removal. (3) In the event that the Tennessee Valley

Authority has refused to certify scope of office or

employment under this section, the employee may at any time

before trial petition the court to find and certify that the

employee was acting within the scope of his office or

employment. Upon such certification by the court, such action

shall be deemed an action brought against the Tennessee

Valley Authority, and the Tennessee Valley Authority shall be

APPENDIX F

substituted as the party defendant. A copy of the peition shall

be served upon the Tennessee Valley Authority in accordance

with the Federal Rules of Civil Procedure. In the event the

petition is filed in a civil action or proceeding pending in a

State court, the action or proceeding may be removed

without bond by the Tennessee Vailey Authority to the

district court of the United States for the district and division

embracing the place in which it is pending. If, in considering

the petition, the district court determines that the employee

was not acting within the scope of his office or employment,

the action or proceeding shall be remanded to the State court.

(4) Upon certification, any actions subject to paragraph (1),

(2), or (3) shall proceed in the same manner as aiiy action

against the Tennessee Valley Authority and shall be subject to

the limitations and exceptions applicable to those actions.

(¢) RETENTION OF DEFENSES.- Section 2674 of ttle

28, United States Code, is amended by adding at the end

thereof the following new paragraph: “With resoect to any

claim to which this section applies, the Tennessee Valley

Authority shall be entitled to assert any defense which

otherwise would have been available to the employee based

upon judicial or legislative immunity, which otherwise would

have been available to the employee of the Tennessee VAlley

Authority whose act or omission gave rise to the claim as

well as any other defenses to which the Tennessee Valley

Authority is entitled under this chapter.”.

Approved November 18, 1988.

LEGISLATIVE HISTORY-H.R. 4612 (S. 2500): HOUSE

REPORTS: no. 100-700 (Comm. on the Judiciary).

CONGRESSIONAL RECORD, Vol. 134 (1988); June 27, 28

considered and passed House. Oct. 12, considered and passed

Senate, amended. Oct. 20, House concurred in Senate

amendment.

APPENDIX F

California Code of Civil Procedures

§21. Classes of judicial remedies. Division of Judicial

Remedies.

These remedies are divided into two classes:

1. Actions; and,

2. Special proceedings. (Enacted 1872.)

§22. Action defined

An action is an ordinary proceeding in a court of justice

by which one party prosecutes another for the declaration,

enforcement, or protection of a right, the redress or prevention

of a wrong, or the punishment of a public offense. (Enacted

1872. Amended by Stats. 1933, c. 742, p. 1805, & 2.)

§23. Special proceeding defined

Every other remedy is a special proceeding. (Enacted

1872.)

$418.10 Motion to quash service of summons or to stay or

dismiss action: procedure.

(a) A defendant, on or before the last day of his time to

plead or within such further time as the court may for good

cause allow, may serve and file a notice of motion either or

both

1) To quash service of summons on the ground of

ack of jurisdiction of the court over him

(2) To stay or dismiss the action on the ground of

inconvenient [orum

b) Such notice shall designate, as the time for making the

motion, a

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