# Petition for Writ of Certiorari — Dahlz v. San Mateo County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 953

## Text

f Supreme Court, U.S.
FILED

01 245 MAY -3 2001

IN THE SUPREME COURT OF THE UNITED STATES

October Term 2001

JUSTIN R. DAHLZ,

y
9

Petitioner,

VS.
COUNTY OF SAN MATEO, et al.

Respondents.

ee

PETITION FOR WRIT OF CERTIORARI

ON PETITION FOR WRI OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JUSTIN R. DAHLZ

Petitioner Pro Se

1486 Huntington Ave. Ste.304
South San Francisco, CA 94080
(650) 873-6051

‘eemeraertnveciapeaaaeseeeacam encase namen eames

IN THE SUPREME COURT OF THE UNITED STATES

October Term 2001

JUSTIN R. DAHLZ,

Z
o

Petitioner,

VS.

COUNTY OF SAN MATEO, et al.

a el

Respondents.

Ww RTIORARI

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JUSTIN R. DAHLZ

Petitioner Pro Se

1486 Huntington Ave. Ste.304
South San Francisco, CA 94080
(650) 873-6051

i

QUESTIONS PRESENTED FOR REVIEW

| WHETHER THE DISTRICT COURT ERRED IN

GRANTING RESPONDENTS’ MOTION TO
DISMISS PETITIONER’S FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 12 (b) (6)?

LIST OF PARTIES TO THE PROCEEDINGS

The parties to the proceeding is Petitioner Justin
R. Dahlz (“Petitioner”) and Respondents County of San Mateo,
County of San Mateo Sheriffs Department, Don Horsley, in his
official capacity as Sheriff of County of San Mateo and ex-
officio Marshal of the Municipal Court, Detectives | and 2,
sued individually and in their official capacity as detective
sheriffs for the County of San Mateo, W.L. Hudson & Sons,
Inc., a California Corporation and Clifford V. Cretan. :

= Page
QUESTIONS PRESENTD FOR REVIEW........0.0.cccccccceeeees i
LIST OF PARTIES TO THE PROCEEDINGS..................::000+ i
Fe I sasisshacceesinsststhestasenssscncisatentsiee iv
rh ie ER RE AE Pete et Bee OTR 1
pe ERTIES SRP sete ar rset Sa ne 1
STATUTES AND CONSTITUTIONAL PROVISIONS
ES, SILL NR TOD l
OT Oe A .: ssscsesctinciiassastentetosiones 2
A. SSIS LR ea 2
REASONS FOR GRANTING THE WRIT..........ccccccccccceee- 7
A. THE DISTRICT COURT ERRED IN
GRANTING RESPONDENTS’

RESPECTIVE MOTIONS TO DISMISS
PETITIONER’S FIRST CLAIM FOR
RELIEF FOR UNDER 42U.S.C. SEC.

1. Petitioner’s first claim for relief
properly alleges or can allege
sufficient facts under a cognizable

(a) Hudson and Cretan acted under
“color of law” for purposes of
Ge SE Bs Di iatnbcneenesiinis tise

(b) The FAC sufficiently alleges or
can allege cognizable claims
against Hudson or Cretan for
purposes of 42 U.S.C. Sec. 1983..

(c) Hudson and Cretan “private”
defendants are not entitled to
immunity under 42 U.S.C. Sec.

(d) The FAC sufficiently alleges or
can allege cognizable claims
against the County detective
respondents for purposes of

| MB TERS. BOG. BID ecccssnisnsescssanonsi

il

a

(e) The County detective respondents
are not entitled to quasi-judicial

(f) The FAC sufficiently alleges
that the County detective
respondents acted pursuant to
official policy for purposes of
holding the County liable under
42 U.S.C. Sec. 1983...0..00000............ 28

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TABLE OF AUTHORITIES
Page
CASES

Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir. 1993)
EE LENE TERE SR ee LRM MT ON 23, 24
American Gen. Ins. Co, v. Federal Trade Com’n, 589 F.2d
og se RR CE ee eo ee
Anderson vy, Superior Court, 68 Cal.App.4th 1240 (1998)...
Antoine vy. Byers & Anderson, 508 U.S. 429 (1993)............. a:
Armanderiz vy. Penman,75 F.3d 1311 (9th Cir. 1996) (en banc)
LEE Ae CNS FEROS. Rey RL SON OD 16
Backlund v. Barnhart, 778 F.2d 1386 (9th Cir. 1985)........... 27
Bibeau y, Pacific Northwest Research Foundation, 188 F.3d
SO Ce Cae, Bea cacehcodinsies sain tnicieciviaesntiennciaciibaidliaccenal 20
ge YT. a ee 28
Bradley v. Fisher, 13 Wall (80 U.S.) 335 (1872)...............00 21
Burns vy, Reed, 500 U.S. 478 (1991).............cccccccccsseeeeeeeeeee 21
Carey _v, Piphus 435 U.S. 247 (1978)............cccccccsccsccsscesseeees 15
Carlo v, City of Chino, 105 F.3d 493 (9th Cir. 1997)....... 14, 25
City of Clel I Cel Living C
ip gk ET” RR eres Pee 15
City of Oklahoma City v, Tuttle, 471 U.S. 808 (1985).......... 28
Clements v. Airport Authority of Washoe County,
ie PON. Ye S| Se eee ee 15
Coverdell v. Department of Social and Health Services, 834
> & Yl. {eS |, See 25, 26
Draper v, Coombs, 792 F.2d 915 (9th Cir. 1986)............0.0000. 18
FE. Trotter, Inc. v. Watkins, 869 F.2d 1312
Ns EEN Se ah Pr Cas 20

iv

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)

he bsilahatinpiiataahishtbinstipabighicistpdinaigiesieie cea init 9,11
Evans v, Newton, 382 U.S. 296 (1966).....ccccccccccceeeec. 9
Gerstein v. Pugh, 420 U.S. 103 (1975) .....ccccccccccceccceecc., 17
Goldberg v. Kelly, 397 U.S. 254 (1970) ....---cccccccccccee 14
Halvorsen v, Baird, 146 F.3d 680 (9th Cir. 1998)... 20
Harlow v. Fitzgerald, 457 U.S. 800 RCN REINA
Henry _v. County of Shasta, 132 F.3d 512 (9th Cir. 1997).....
Henry v. Farmer City State Bank, 808 F.2d 1228

GT NE Wi iipsietintietanneteiliiaien ee nw 25
Howerton v, Gabica, 708 F.2d 380 (1983)... 8
In. re Hess, 45 Cal.2d 171 (1995)... ccccccecccssecsessseeeeses.... 12

Jackson v. Metropolitan Edison Co. , 419 U.S. 345 (1974)... 8
Karim-Panahi v, Los Angeles Police Department, 839 F.2d

esther hese. ER A te 28
Lockary v. Kayfetz, 917 F.2d 1150 (9th Cir. 1990)... 16
Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922 (1982)
soneocenesensoneesescoseocssnscsesessoecssssnssenesseccocesesesessecescoseeseesesess<., 7, 8, 10
Malley v. Briggs, 475 U.S. 335 Eee A a ee 23
Mapes v. United States, 15 F.3d 138 (9th Cir. 1994)... 9
Marsh v. Alabama, 326 U.S. 501 hn SRE de Ie A y
Mays v. Sudderth, 97 F.3d 107 tL S|) eee 26
Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994)... 27
Mireles v. Waco, 502 c-Met een eetiah amare int 21
I A RO CO enscvepsinintessedaslacitserineco. occas, is. 29 Z
Moss v. Superior Court, 158 Cal. App.3d 604 (1984)...

Nierenberg v. Superior Court, 59 Cal.App.3d 611 (1976)..... 12
Osolinski v. Kane, 92 F.3d 934 (9th Cir. 1996)... 23
People v. Anderson, 15 Cal.3d 806 (1975).........ccccceceeeseeeeees )
People v. Gonzalez, 12Cal.4th 804 (1996)..........cccceseeeeeeeees 17
Pierce v. Multnomah County, Or., 76 F.3d 1032
EERSTE Ss EERE RRR eas or aoe oI 17
Rendell-Baker v. Kohn, 457 U.S. 830 (1982)..........0...... 20
Richardson v. McKnight, 521 U.S. 399 (1997)... 20
Runnion v. Workers’ Comp. Appeals Bd., 59 Cal.App.4th 277
a 15
Schweiker v. McClure, 456 U.S. 188 (1982)................ eee 19
Soldal v. Cook County, 506 U.S. 56 (1992)... eeeeeee 16
Smith v. Hughes Aircraft Co., 10 F.3d 1448 (9th Cir. 1993)
PFET S ED, alle ne ORE I ahs NR AS SENG SVT EANE a aN ne RIOD 9
Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996)... 7
Stump v. Sparkman, 435 U.S. 349 (1978).....-ccssssssccssseesessee 24
Strandberg v. City of Helena, 791 F.2d744 39
NR aR SIR ES SPs a RIA AEE 25
Terry v. Adams, 345 U.S. 461 (1953)......cccccccccsssssssescssesesseseees 9
Tulsa Professional Collection Services v. Pope, 485 U.S. 478
fy, SRE SAADEH PALE IER TSN AF OE” NC 10, 11
Turney v. O’ Toole, 898 F.2d 1470 (10th Cir. 1990).......0....... 26
United States v. Cannon, 29 F.3d 472 (9th Cir. 1994).......... 17
United States v. Device, Labeled Theramtic, 641 F.2d 1289
CTT hcasiceniiie Ainiiaiesiaindieiaiaedaleambeiahaimdiesdiaeaailietaaniadiicmmmansetiineiaeetie 18
United States v. James Daniel Good Real Property,. 510 U.S.
EI ISTE I TR IA: Sa PASI RAS Sac IE 17
United States v. Mota, 982 F.2d 1384 (9th Cir. 1993)........... 18

United States v. Wanless, 882 F.2d 1459 (9th Cir. 1989)... 18
Walker v. City of Berkely, 951 F.2d 182 (9th Cir. 1991)...... 22
Warner v. Superior Court, 126 Cal.App.2d 821 (1954)........ 12
Wheedlin v. Wheeler, 373 U.S. 647 (1963)....ccccccccccccccoceos-. 7
Wirth v. Surles, 562 F.2d 319 (4th Cir. | RARER SOTO 18
Wyatt v. Cole, 504 U.S. 158 (1992)... cccccccccccccecseceeescs-.. 19,20
STATUTES
I NS I Ninian ie a at l
Oe Was WO, BD a ssincinsecintsisisteds siessh 1, 7, 11, 19, 24, 28
gS. . RTS en Care 33
oa i pts ccc pg, ONE TORII LF ibd OER 33
Cal. Code Civ. Proc. 1209...............0.0............. 11, 12, 13, 14, 18
Coe. Coe Pes 1 13, 17, 18, 27
i ee +» Rent eereentnt Oe Neen ana 24
Federal Rule of Civil Procedure Wessstdnjedtosedennsoshesasisvoseessuicéeiias Mi
Federal Rule of Civil Procedure12 2 SSR rc EGP gh 7, 29
Federal Rule of Civil Procedure15 (8)... cecccceecseee0... 6
UNITED STATES CONSTITUTION
tots ete ea, OD DEER ES TLE 1, 16, 18
in cscs, Rn RE Re 2
Vii

I BELOW
The Order by the United States District Court

Granting Defendants’ Motion to Dismiss the complaint in
Justin R. Dahlz v. County of San Mateo, et al. (N.D. Cal.)
was entered on August 24, 1999 and is unreported (the
“District Court Order”) (App. B). The Memorandum Decision
of the United States Court of Appeals for the Ninth Circuit
affirming the District Court Order was enterd on March 2, 2001
(the “Ninth Circuit Decision”) (App. A).
JURISDICTION

The judgment of the Court of Appeals was entered
on March 2, 2001. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. Sec. 1254 (1).

STATUTES AND CONSTITITUONAL PROVISIONS
INVOLVED

The pertinent provisions of 42 U.S.C. Sec 1983
and the Fourth and Fourteenth Amendments of the United
States Constitution is set forth below:

Section 1 of the Kiu Klux Klan Act of 1871, Rev.

Stat. 1979, as amended, 42 U.S.C. Sec. 1983 provides:

“Any person who, under color of any law, statute,

ordinance, regulation,custom, or usage of any

state, subjects, or causes to be subjected,

any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of

any rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or
other proceeding for redress.”
The Fourth Amendment to the United States

Constitution states:

“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 shail issue, but upon probable cause,
supported by Oath or Affirmation, and particularly
describing the place to be searched, and the persons

oz things to be seized.”

The Fourteenth Amendment to the United States
Constitution, Section | states in pertinent part:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE
A. FACTS :

Petitioner Justin R. Dahlz (“Petitioner” or
“Dahlz”) petitions for review the entry of the order
dismissing the action with prejudice in favor of all the
named Respondents, County of San Mateo, County of San
Mateo Sheriffs Department, Leonard E. Cardoza, in his official
capacity as Sheriff of the County of San Mateo and ex-officio
Marshal of the Municipal Court, Detectives 1 and 2, sued
individually and in their official capacity as detective
sheriffs for the County of San Mateo (the “County
Respondents”, “County Detective Respondents”)! > Weber

1 “CR” denotes the District Court Clerk’s record number; “ER” is
the Excerpts of Record number where appropriate as was used before the
Ninth Circuit Court of Appeals.

ieceieenintiee ie eT NT ee Te RN ee CT ee | eee

DR een

Hudson & Sons, Inc., a California Corporation and Clifford V.
Cretan (the “Individual Respondents”, “Hudson” or “Cretan”.

This case arises under the Civil Rights Act, 42
U.S.C. Sec. 1983. The district court’s order does not fully
detail the facts as alleged by petitioner in his First
Amended Complaint (“FAC”) and in fact what is detailed is not
completely accurate as to the allegations set forth in the
FAC. Specifying the allegations as set forth in the FAC is
critical to understanding the nature and scope of the
constitutional violations alleged and therefore they are set
forth more fully below.

Petitioner is a practicing attorney in the County
of San Mateo. Cretan is also a practicing attorney in the
County. The petitioner was a personal defendant in a lawsuit
filed against him and his client in the Municipal Court of
the County of San Mateo by Hudson. Hudson was represented
by Cretan and obtained a default judgement against the peti-
tioner and thereafter ordered a debtor’s examination of him.
(CR:19; ER: 13, 11. 10-18)

When petitioner did not appear at the debtor’s
order of examination, the court issued a bench warrant for
his arrest without issuing an order to show cause hearing re:
contempt. Petitioner was arrested pursuant to the warrant and
subsequently released on bail. (CR: 19; ER: 13, 11. 19-23).

Petitioner will not making reference to the Reporter's

Transcript since there is none.

Cretan on behalf of Hudson and at the direction of
the court prepared the bench warrant signed by the court for
petitioner’s arrest. (CR: 19,24; ER: 14, 11. 15-16, 24-25).?

There is no affidavit by Cretan supporting a
finding of probable cause for issuance of the warrant. (CR: 24;
ER: 24-25).

The court then ordered a new appearance for
petitioner, petitioner did appear at the time and date set
for the hearing in the department that he was ordered to appear
in but approximately one (1) hour after he arrived,
the clerk in the department told him to go downstairs to the
clerk’s office. (CR: 19, ER: 3, 11. 23-28).

At the clerk’s office the petitioner was informed
that the hearing was to take place in another department, he
then went to that department and was informed by the clerk that
a new bench warrant for his arrest was being issued. (CR: 19,
ER: 14, 11. 1-13). The petitioner tried to infrom the clerk why
he was late for the hearing but the bailiff
prevented him from doing so. (CR: 19, ER: 11. 8-10).3

Once again, Cretan on behalf of Hudson and at the

2The actual bench warrants were attached to the County’s Request
for Judicial Notice filed on May 5, 1999. (CR: 24; ER: 24-28).

3The district court’s order states that petitioner failed to appear on
the new hearing date and that a new bench warrant was issued and that he
was arrested. (CR: 38; ER: 32, 11. 2-5). This is incorrect because as set
forth in the FAC and above, petitioner alleges that he did appear in the

department that the cour originally ordered him to appear in on the new
hearing date.

direction of the court prepared the bench warrant signed by the
court for petitioner’s arrest without issuing an order to

show cause hearing re: contempt. (CR: 19, 24: ER: 14, 11.
15-16. 27-28).

And once again, there is no affidavit by Cretan
supporting a finding of probable cause for issuance of the
warrant. ( CR: 24; ER: 27-28).

From September 29, 1997 thru October 17, 1997,
petitioner attempted to contact Cretan to obtain information
about the warrant and to resolve the matter and have the
warrant recalled. Cretan never returned petioner’s numerous
phone calls to him during this period of time and so -
petitioner next checked the court file and discovered that
the warrant had not yet been filed and so he asked the clerk
of the court’s civil division to call Cretan. (CR: 19, ER:
14, 11, 14-25). .

The new bench warrant as prepared by Cretan and
signed by the court was then filed on November 4. 1997. (CR:
24; ER: 27). The warrant set bail in the amount of $10,000.00
and instructed that if bail was posted, appellant was ordered
to appear at 9:00 a.m. the second Monday. Wednesday or F riday
following the arrest. (CR: 24, ER: 27).

However, on Friday, October 17, 1997 at
approximately 5:00 p.m., the County detective respondents
came to petitioner’s law office and arrested him. At the time
of the arrest, petitioner explained to the detectives what

had transpired and offered to post bail but was refused.
Petitioner was then imprisoned and placed in solitary
confinement from October 17, 1997 to October 20, 1997. (CR:
19; ER: 14, 11. 26-28, 15, 11, 1-9).

On Tuesday, October 21, 1997, after spending four
(4) days in solitary confinement, petitioner appeared in
court in prison attire and Cretan on behalf of Hudson
conducted his debtor’s examination. (CR: 19; ER: 15, 11. 10-
13).

Petiitioner filed the instant action on October 19, 1998
in the United States District for the Northern District
of California, alleging that the respondents violated his
federal civil rights pursuant to 42 U.S.C. Sec. 1983 and for
false arrest and imprisonment under state law. (CR: 1; ER: 1-
9).

The county’ respondents, county detective
respondents, Hudson and Cretan replied by filing respective
motions to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12 (b) (6). (CR: 9-12, 13-14)

Petitioner responded by filing a FAC prior to a
hearing on the matter pursuant to Federal Rule of Civil
Procedure15(a). (CR:19; ER:10-20)

All of the respondents then filed respective
motions to desmiss the FAC for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12 (b) (6) (the
“Motion”). (CR: 27-28).

®

Petitioner filed a written opposition to
respondents’ respective motions and after supplemental
briefing on the matter, the district court took the matter
under submission, and on August 24, 1999 issued an order
granting the respective motions to dismiss with prejudice.
(App. B).

Respondent filed a timely Notice of Appeal from the
district court’s order on September 23, 1999 to the United
States Court of Appeal for the Ninth Circuit and the Ninth
Circuit issued a Memorandum Decision affirming the District
Court Order was entered on March 2, 2001 (App. A).

REASONS FOR GRANTING THE WRIT
A. THE DISTRICT COURT ERRED IN GRANTING
RESPONDENTS’ RESPECTIVE MOTIONS TO
DISMISS PETITIONER’S FIRST CLAIM FOR
RELIEF UNDER 42 U.S.C. Sec. 1983
1. Petitioner’s first claim for relief properly
alleges or can allege sufficient facts under
a cognizable legal theory.
(a) Hudson and Cretan acted under “color of law”
for purpose of 42 U.S.C. Sec. 1983.

Since Hudson and Cretan are private individuals,
the threshold issue is whether they acted under “color
of law” for purposes of 42 U.S.C. Sec. 1983.

The “color of law” requirement for purposes of
Sec. 1983 is treated the same as the “state action” requirement

under the Fourteenth Amendment. Lugar v. Edmonson Oil Co.

Inc., 457 U.S. 922, 929, 102 S. Ct. 2744, 2749, 73 L. Ed. 2d
482 (1982). Actions taken by private individuals may be found
to be under “color of law” where there is significant state
involvement. Lugar, 457 U.S. at 941, 102 S.Ct. at 2756;
Howerton v. Gabica, 708 F. 2d 380, 382-383 (1983).

While the Court has developed miu!tiple tests to
find equivalent state action‘, one such test is met where
“ [p] rivavate persons, jointly engaged with state officials, in
the prohibited action, are acting under color of law for
purposes of 42 U.S.C. Sec. 1983... It is enough that (the
private party) is a willful participant in joint activity
with the State or its agents.” Howerton, 708 F.2d at 383.

In the case at bar, the FAC alleges and the
judicially noticed exhibits indicate that the warrants were
prepared by Cretan on behalf of Hudson at the direction of
the court, which should clearly make them willful
participants with the court and its agents. (CR: 19, 24; ER:
14, 11. 15-16, 24-28). :

An independent test for finding that a private
individual acted under “color of law” for purposes of Sec.
1983 is when the private individual acts “in the exercise [of
powers]. . . exclusively reserved to the State.” Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 352 (1974) (“ [I]f we

4 The Court has articulated four distinct approaches to
the state action question; (1) the “public function” test,
(2) the “state compulsion” test, (3) the “nexus” test and (4)
a “joint action” test. Lugar, 457 U.S. at 941, 102 S. Ct. at
2754-55.

were dealing with the exercise by Metropolitan of some power
delegate to it by the State which is traditionally
associated with sovereignty, such as eminent domain, our case
would be a different one.”). |

The preparation and issuancee of a bench warrant
is a power exclusively reserved to the State. The FAC also
alleges that Cretan was delegated the right to prepare the
warrants by the court, thus the “color of law” requirement

can be met under the Court’s “public function” test.

5The Court has repeatdly held that “when private
individuals or groups are endowed by the State with powers or
functions governmental in nature, they become agencies or
instrumentalities of the State and subject to __ its
constitutional limitations.” Evans vy. Newton, 382 U.S. 296,
299, 86 S.Ct. 486, 15 L.Ed. 2d 373 (1966); Terry v. Adams, 345
U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (private
political association and _ its elections constitute _ state
action); Marsh vy. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90
L.Ed. 265 (1946) (privately owned “company town” is a state
actor).

6Prior to the Court’s decision in Edmonson vy, Leesville
Concrete Co,, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660
(1991), the public funciton test required that the fuction
conducted by a private party must have been a “traditionally
exclusive government fuction.” See Rendell-Baker v. Kohn,
457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). In
Edmonson however, the Court held that private parties become
state actors when they exercise peremptory challenges. As
noted by the Edmonson dissent, the public function test,
prior to this case, required that the private actor exercise
a power “traditionally exclusively reserved to the State.”
Id, 500 U.S. at 632. The dissent also noted that it has
never been exclusively the function of the government to
never been exclusively the function of the government to
select juries - that peremptory strikes are older than the
Republic, and that the prior requisite of “exclusivity”
element was lacking. Thus, it appears that the notion of
“exclusivity” may no longer be a true prerequisite to a
finding of government function, or at least has been called
into question.

9

The “color of law” requirement is _ also
independently met because Hudson and Cretan made
extensive use of state procedures with the “overt, significant
assistance of state officials.” Tulsa Professional Collection
Services v. Pope, 485 U.S. 478, 487, 102 S.Ct. 1340, 1345, 99
L.Ed. 2d 565 (1988).

In Lugar, the Court formulated a_ general
analytical framework for determining whether private
individuals are acting under “color of law” under Sec. 1983.
The Court asked first whether the claimed constitutional
deprivation resulted from the exercise of a right or privilege
having its source in state authority, 457 U.S. at
939-41, and second, whether the private party charged with
the deprivation could be described in all fairness as a state
actor, jd., 457 U.S. at 941-42.

There would appear to be no question that the first part
of the Lugar test is satisfied here. By its very
nature, the issuance of a bench a warrant has no significance
outside of a court of law. The warrant can only be issued and
executed, as in the case at bar, by a court, in accordance
with statutory or decisional case law. The second part of the
Lugar test is met because Hudson and Cretan made extensive
use of state procedures in having the warrants issued in
order to have the appellent arrested with the “overt,
significant assistance of state officials”, in this instance
the court and its agents.

10

After Cretan prepared the warrants, the court

signed it and the court’s agents executed it. The court and
its agents were intimately involved throughout the process
and without that involvement the appellant would never have
been arrested. See Tulsa Professional, 485 U.S. at 487, 102
S.Ct. at 1346 (“[H]ere in contrast, there is significant
state action. The probate court is intimately involved
throughout, and without that involvement the time bar is
never activated.”). As the Court found in Tulsa Professional,

“[t]his involvement [by the court] is so pervasive and
substantial that it must be considered state action subject
to the restrictions of the Fourteenth Amendmicnt.” Id., 485
U.S. at 487, 102 S.C. at 1346; see also Edmonson (the use of
peremptory challengees by private litigants in civil cases
was found to constitute “state action” subject to
constitutional non discrimination requirements).

If the “color of law” requirement has been

satisfied, then the next part of the inquiry must focus on
the nature of the constitutional violations claimed to have
been violated.

(b) The FAC sufficiently alleges or can allege
cognizable claims against Hudson and Cretan
for purposes of 42 U.S.C. Sec. 1983.

The statutory framework that governs this case

is to be found at California Code of Civil Procedure Sec. 1209

1]

dealing with civil contempt. California Code of Civil
Procedure Sec. 1209 (a) (5) makes disabedience of any lawful
judgment, order, or process of the court a contempt of the
authority of the court. A “direct” contempt is that committed
in the immediate view and presence of the court of the judge
in chambers; all other contempts, which occur outside the

presence of the court, are “indirect”. See Nierenberg_v.

Superior Court, 59 Cal.App.3d 611, 616 (1976).

California Code of Civil Procedure Sec. 1209 (a) (5)
makes a contempt punishable by a fine not exceeding $1,000.00
or by imprionment not exceeding five days, or both.

In the case at bar, both the FAC and _ the
judicially noticed warrants indicate that the warrants were
issued because appellant allegedly failed to appear at the
court ordered debtor’s examination on March 10, 1997 and
September 29, 1997, thus if petitioner was in contempt of
court, the contempt is “indirect”. (CR: 19; ER: 13, 11. 17-
28, 14, 11. 1-17; 24-28).

Because of the potential punishment, this type
of proceeding is considered quasi-criminal, and an accused is
entitled to constitutional guarantees of due process,
including notice of the charges. Warner v. Superior Court,
126 Cal.App.2d 821 (1954); In re Hess, 45 Cal.2d 171, 175
(1955), followed by People v. Anderson, 15 Cal.3d 806, 809
(1975) (“[djue process of law requires that an accused be
advised of the charges against him in order that he may have

12

a reasonable opportunity to prepare and present his defense
and not be taken by surprise by evidence offered at his
trial.”’)

Because the alleged contempt by petitioner was
not made in the court’s presence, the constitutional due
process guarantee of notice and opportunity to be heard as
codified in California Code of Civil Procedure Sec. 1211 (a)
governs, and required that instead of immediately issuing a
bench warrant for petitioner’s arrest, a hearing on an order
to show cause re: contempt should have been set based on an
affidavit presented to the court of the facts constituting
the contempt. This procedure was not followed and instead
petitioner was arrested without the benefit of a hearing on
the matter.

The affidavit requirement is a jurisdictional
prerequisite to a court’s power to punish an indirect

contempt. Moss v. Superior Court, 158 Cal.App.3d 604 (1984);
Anderson _v, Superior Court, 68 Cal.App.4th 1240 (1998) (“

‘[t]he facts essential to jurisdiction for a contempt
proceeding are (1) the making of the order; (2) knowledge of
the order; (3) ability of the respondent to render
compliance; (4) willful disobedience of the order.’’)
(citations omitted).

Notwithstanding this, California Code of Civil
Procedure Sec. 1209 (c) stays the execution of an order of
contempt for three (3) judicial days pending the filing of a

13

petition for extraordinary relief testing the lawfulness of
the court’s order when the order is made affecting an
attorney, as is the case here. Instead, not enly was
petitioner never afforded a hearing as to whether he was in
contempt of court regarding either arrest, but to compound
his difficulties, he was not afforded a stay of the contempt
orders as he was entitled to by law since he was an attorney.

For purposes of the procedural component of the
Due Process Clause, petitioner’s claim is analyzed in two
parts: (1) deprivation of a interest protected under the
clause, and (2) denial of adequate procedural protections.
Goldberg v. Kelly, 397 U.S. 254 (1970).

The Ninth Circuit following this Court’s case
law has previously held that a state statute can create a
liberty interest protected by the due process clause, see

Carlo _v. City of Chino, 105 F.3d 493, 496-500 (9th Cir.

1997), and the adequate procedural protections were codified
by statute at California Code of Civil Procedure Sec. 1209 and
Sec. 1211. A liberty interest protected under the Due Process
Clause is implicated since civil contempt proceedings are
quasi-criminal in nature because of the penalties involved.

Independent of the state procedural safeguards,
the Constitution requires that petitioner be afforded notice
and opportunity to be heard at a meaningful time and in a
meaningful manner prior to the deprivation of his liberty.

United States v. James Daniel Good Real Property, 510 U.S.

14

43, 48 (1993). |

Petitoner has alleged that there was no
substantive justification to hold him in contempt of court
because the first time that he failed to appear at the
debtor’s examination was inadvertent and that he in fact did
appear as ordered at the second examination hearing’, (CR:
19, ER: 13, 11. 17-28, 14, 1-13). Assuming for the present
that these allegations are not taken as true for purposes of
a 12(b) (6) motion, procedural due process is indifferent to
the substance and ultimate outcome of the order to show cause
hearing since “[t]he right to procedural due process is
‘absolute’, and ‘the law recognizes the importance to
organized society that those rights be scrupulously
observed.” Clements v. Airport Authority of Washoe County,
69 F.3d 321, 333 (9th Cir. 1995) (quoting Carey v. Piphus 435
U.S. 247, 266-67 (1978)).

Equal Protection Clause analysis does not depend
on whether petitioner has a protectible liberty interest but
looks to whether he was denied equal protecion of law,
which is essentially a direction that all persons similarly

situated should be treated alike. City of Cleburne, Tex. v.
Cleburne Living Center, 473 U.S. 432, 439 (1985). In this

case, that amounts to the allegations that have been plead,
that in effect, the court’s statutory contempt power was

7Civil contempt is a proper sanction only if the

misconduct is “willful”. See Runnion v. Workers’ Comp.
Appeals Bd., 59 Cal.App.4th 277 (1997).

15

applied against him arbitrarily. Armanderiz_v. Penman, 75
F3d 1311, 1327 (9th Cir. 1996) (en_banc); Lockary v.
Kayfetz, 917 F2d 1150, 1155-56 (9th Cir. 1990).
Turning to the substantive component of the Due
Process Clause, the rule of analysis adopted by this circuit ;
in Armanderiz is that: )
“[W}here a particular amendment provides
an explicit textual source of constitutional
protection against a particular sort of
government behaviour, that amendment, not

the more generalized notion of substantive

due process must be the guide for analyzing
[a party’s] claims.” Id., 75 F.3d at 1320

(citations omitted).8
Therefore, petitioner’s substantive claim under
the Due Process Clause. is not analyzed under a generalized
notion of substantive due process but as alleged in the FAC
under the Fourth Amendment’s guarantee to be free from
unreasonable searches or seizures. (CR: 19; ER: 16, 11. 9-11).
In this case, the FAC raises a question as to
the reasonableness of the issuance of the warrants in
question and the subsequent arrests of petitioner, since

8This rule of analysis is consistent with long
established Court precedent that “[c]Jertain wrongs can affect
more than a single right and, accordingly, can implicate more
than one of the Constitution’s commands.” Soldal_v. Cook
County, 506 U.S. 56, 69 (1992). The proper question then is :
not which amendment controls but whether either amendment is .
violated.

16

there is no affidavit that was ever prepared or filed by
Cretan justifying the warants. See Gerstein v. Pugh, 420
U.S. 103, 117, 95 S.Ct. S.Ct. 854, 864-865, 43 L.Ed. 2d 54
(1975) (the Fourth Amendment requires that arrest warrants be
based upon probable cause, supported by oath or affirmation, a
requirement that may be satisfied by an indictment returned
by a grand jury, but not by the mere filing of criminal
charges in an unsworn information signed by the prosecutor);
United States v. Cannon, 29 F.3d 472, 478 (9th Cir. 1994)
(warrant is valid if issuing judge had substantial basis to
conclude affidavit establishes probable cause).

As argued above, California Code of Civile
Procedure Sec. 1211(a) also required that instead of immedi-
ately issuing a bench warrant for petitioner’s arrest, a hearing
on an order to show cause re: contempt should have been set
based on an affidavit present to the court of the facts
constituting the contempt. If an affidavit had been filed and
an order to show cause hearing had been set and if petitioner
had failed to appear at the hearing, then the court could
have then issued a warrant for his arrest based on the
affidavit.

Although a state law violation is not actionable
in a Sec. 1983 claim, federal courts must necessarily consider
the lawfulness of an arrest under state law. See Pierce v.

Multnomah County, Or., 76 F.3d 1032, 1038 (9th Cir. 1994)

(state law determines reasonableness of arrest in a Sec. 1983

17

claim), cert. denied, U.S.__, 1178S. Ct. 506, 136 L.Ed. 2d
397 (1996); United States v. Mota, 982 F.2d 1384, 1387 (9th
Cir. 1993) (reasonableness of arrest determined by referring
to state law in a criminal case); United States v. Wanless,
882 F.2d 1459, 1464 (9th cir. 1989) (federal law may require
searches and seizures be conducted in accordance with state
law). Also, “a violation of state...law can serve as the
basis of a section 1983 action ‘[w]here the violation of
state law causes the deprivation of rights protected by the
Constitution.”” Draper v. Coombs, 792 F.2d 915, 921 (9th
Cir. 1986) (quoting Wirth v. Surles, 562 F.2d 319, 322 (4th
Cir. 1977).

Therefore, looking to the law as codified in
California Code of Civil Procedure Sec. 1209 and 1211 and
well established court precedent, petitioner has alleged
sufficient facts as to the objective reasonableness of the
issuance of the warrants and his subsequent arrests.

Independent of this, the Fourth Amendement
explicitly requires that a warrant be issued by a “neutral
and detached magistrate,’ who must actuaily determine
whether probable cause for an arrest exists. United States v.
Device, Labeled Theramtic, 641 F.2d-1289, 1293 (1981)
(“[t]hese requirements are not mere formalities. ‘[T]he very
purpose of the warrant requirement...is to place a
neutral magistrate between the public and police conduct.’
[citations]. That is why the Court has insisted that the

18

official who issues a warrant must be capable of determining
whether probable cause exists for the requested arrest or
search.”) (citation omitted). z

In the case at bar, the petitioner has
sufficiently alleged that the court had no probable cause to
arrest him since there is no affidavit establishing the —
requisite elements of probable cause for contempt.

Finally, having Cretan prepare the warrants
violated long standing and recognized precedent that it is
fundamentally unfair to allow a prosecutor or party to an
action to be involved in any way in the adjudicative process;
especially a quasi-criminal proceeding of this type. See
Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665,
1669, 72 L.Ed.2d 1 (1982) (“[a]s this court has repeatedly
recognized, due process demands impartiality on the part of
those who function in judicial or quasi-judicial
capacities.”)

(c) Hudson and Cretan as “private”
defendants are not entitled to
immunity under 42 U.S.C. Sec. 1983.

In Wyatt _v. Cole, 504 U.S., 158, 112 S.Ct. 1827,
118 L.Ed.2d (1992), the Court considered whether private
defendants, charged with Sec. 1983 liability for “invoking state
replevin, garnishment, and attachment statutes” later
declared unconstitutional were “entitled to qualified
immunity from suit.” Id. at 159. It held that they were not.

19

Id. at 169.

In Richardson v. McKnight, 521 U.S. 399, 117
S.Ct. 2100, 138 L.Ed.2d 540 (1997), the Court denied immuni-
ty from suit under Sec. 1983 to prison guards who were
employees of a private person management firm considering
the history and purpose of the immunity doctrine.

While it is true that in Richardson, the Court
“answered the immunity question narrowly, in the context in
which it arose,” Richardson, 521 U.S. at 413, 117 S.Ct. 2100,
petitioner does not know of any case in the Ninth Circuit or
other circuits where immunity has been accorded to private
defendants under Sec. 1983, and binding circuit precedent both
before and after Wyatt and Richardson were decided suggests
otherwise. See Howerton, 708 F.2d at 385 n.10 (“there is no
good faith immunity under section 1983 for private parties
who act under color of state law to deprive an individual of
his or her constitutional rights”); EE. Trotter, Inc. v.
Watkins, 869 F.2d 1312, 1318-19 (9th Cir. 1989); Halvorsen v.
Baird, 146 F.3d 680, 686 (9th Cir. 1989); Bibeau_v. Pacific
Northwest Research Foundation, 188 F.3d 1105, 1111-12 (9th
Cir. 1998).

Thus, Hudson and Cretan bear the burden of
establishing why the immunity doctrine should apply to them
and if so, the type of immunity to be accorded them.

If Hudson and Cretan are accorded immunity, they
should not be accorded quasi-judicial immunity, because even

20

if the preparation and issuance of a warrant is related to
the exercise of a judicial function, a function that quasi-
judicial immunity seeks to protect as “‘the function of
resolving disputes between parties, or of authoritatively
adjudicating private rights’”, Antoine v. Byers & Anderson,
508 U.S. 429, 435-436 (1993) (quoting Burns v. Reed, 500 U.S.
478, 500, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)), judicial
immunity does apply to this case where the preparation and
issuance of the warrant was made without an affidavit and
hearing, which as argued above, under California statutory
and decisional case law and federal procedural due process
principles are actions taken in “the clear absence of all
jurisdiction” and not accorded judicial immunity. See Stump
v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1105, 55
L.Ed.2d 331 (1978) (quoting Bradley v. Fisher, 13 Wall (80
U.S.) 335, 351, 20 L.Ed. 646 (1872)); Mireles v. Waco, 502
U.S. 9, 11-12, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991).
The rule is well settled in California that a
void order cannot be the basis for a valid contempt judgment
and may be collaterally attacked at any time. See Pegple v.
Gonzalez, 12 Cal.4th 804, 815-818 (1996).
Aside from the fact that the warrants are void
because of the lack of a contempt hearing, the Ninth Circuit
has also held that a judge’s or quasi-judicial officer’s
participation in a case as a counsel renders the proceeding so
infected with invalidity as to render any order under review

as a result of the proceedings void. See American Gen. Ins.

Co. V. Federal Trade Com’n, 589 F.2d 462 (9th Cir. 1979)
(cited with approval in Walker v. City of Berkely, 951 F. 2d
182 (9th Cir. 1991)).

American Gen. explains that logic and history
have long rquired that a party should not be a judge in his
own case, citing as precedent “venerable tradition in Anglo-
American legal history” that can be found in such
commentaries as Blackstone and Coke. lId., at 463-464.

As American Gen. explained:

“That the judge’s or quasi-judicial
officer’s participation in the case
may have been superficial rather than
substantial does not affect the appli-
cability of the principle.” Id., at 464.
(emphasis added).

American __ Gen. applied an automatic
disqualification rule and concluded that the Federal Trade
Commission’s final order under review was “infected with
invalidity by reason of Commissioner Collier’s
participation.” Jd., at 465. Similarly, Hudson and Cretan’s
participation in the adjudicative process taints. the
proceedings in such a manner as to render the warrants void.

Moreover, the parties in this case are the
litigant and its counsel who independently set the hearing on
the debtor’s examination, and absolute immunity at common

22

law did not extend to complaining witnesses who “set the
wheels of government in motion by instigating a legal action.”
Wyatt, 504 U.S. a 164-165, 112 S.Ct. at 1831; Malley _v.
Briggs, 475 U.S. 335, 340-341, 106 S.Ct. 1092, 1095-96, 89
L.Ed.2d 71 (1986) (“We do not find a comparable [common-
law] tradition of absolute immunity for one whose complaint
causes a warrant to issue”’).

If petitioner is correct that quasi-judicial

immunity does not apply, then Hudson and Cretan would enjoy
qualified immunity unless their conduct violates “clearly
established constitutional rights of which reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The
qualified immunity analysis requires a two-part inquiry: (1)
Was the law governing Hudson and Cretan’s conduct clearly
established? (2) Under the law could they reasonably have
believed their conduct lawful? ! V.
988 F.2d 868, 871-872 (9th Cir. 1993). “A public official is
not entitled to qualified immunity when the contours of the
allegedly violated right were sufficiently clear that a
reasonable official would understand that what he [was] doing
violated[d] that right.” QOsolinski v. Kane, 92 F.3d 934, 936
(9th Cir. 1996) (alterations in the original) (internal
quotations omitted).

The law in this case was clearly established by
both statute and state and federal decisional case law which

23

defined the constitutional rights in question. Even if a
court orders a litigant to prepare a warrant and ultimately
signs and issues it, Hudson and Cretan were not free to
simply ignore the clear mandate of the law which divested the
court of jurisdiction without a hearing based on an
affidavit. The facts as alleged by petitioner cannot support
a reasonable belief that the conduct of Hudson and Cretan was
lawful, entitling them to qualified immunity. Act Up!, 988
F.2d at 873.
(d) The FAC sufficiently alleges or can allege

cognizable claims against the County

detective respondents for purposes of 42

U.S.C, Sec. 1983.

The FAC alleges that when the County detective
respondents arrested him he explained to them his attempts to
reach Cretan to resolve the matter, and then offered to post
bail and was refused, placed in solitary confinement for
over three (3) days and brought to court the Tuesday after
his arrest. (CR: 19; ER: 15, 11.4-13).

The face of the warrant instructs that bail was
to be set in the sum of $10,000.00 and then states that if
petitioner posts bail he is permitted to appear in court the
second Monday, Wednesday or Friday following the
date of his arrest. (CR: 24; ER: 27).

Bail was mandatory as California Code of Civil
Procedure Sec. 1213 requires that “[w]henever a warrant or

24

attachment is issued pursuant to this title the court or
judge must direct, by an endorsement on * * * the warrant,
that the person charged may * * * give an undertaking for the
person’s appearance in an amount to be specified in such
endorsement.”

Notwithstanding that the County detective
respondents ignored the clear mandate of the warrant and
statute by refusing bail, they then held him incommunicado
in solitary confinement for more than three (3) days. This
was clearly a violation of petitioner’s due process rights.
Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir.
1986) (right to communicate “subject to rational limitations
in the face of legitimate security interests of the penal
institution”); Henry v. County of Shasta, 132 F.3d 512, 519
(9th Cir. 1997) (holding a prisoner incommunicado in
violation of state law violates his Fifth Amendment due
process rights); Carlo, 105 F.3d at 496-500.

(e) The County detective respondents are not

entitled to quasi-judicial immunity.

The district court enunciated the proposition
that “it is established that a police officer executing a
court order is entitled to abolute, quasi-judicial immunity
from section 1983 suits for enforcing the order. (App. B)
(citing Henry v. Farmer City State Bank, 808 F.2d 1228, 1238

(7th Cir. 1986) and Coverdell v. Department of Social and
Health Services, 834 F.2d 758, 768 (9th Cir. 1987)). (CR: 38;

25

ER: 32).

But Coverdell clarifies that the application of
quasi-judicial immunity is contingent on the person
“faithfully execut[ing] [a] valid court order.” Id., 834 F.2d
at 764. (alterations in the original) (citing other circuits
for the same authority).

The County respondent detectives can hardly be
said to have “faithfully” executed the warrant when the face
of the warrant entiticd appellant to be released on bail.

An official acting outside the scope of his
authority does not enjoy absolute immunity for his actions.
Mays _v. Sudderth, 97 F.3d 107, 114 (Sth Cir. 1996) (citing
Turmey v. O’Toole, 898 F.2d 1470, 1474 (10th Cir. 1990) and
other circuits to the same effect). Since the FAC alleges
facts establishing that the County detective respondents
acted outside the scope of the authority of the warrant
quasi-judicial immunity does not apply.

Moreover, “‘[t]here are lhmits to how unlawful
an order can be and still immunize the officer executing
it.” Mays, 97 F.3d at 114 (quoting Tumey, 898 F.2d at
1474). “As the officer’s immunity derives from that of the
issuing judge, the order must be one from which the judge is
absolutely immune from suit. Thus, we do not find that a
state official would be absolutely immune from suit based on
compliance with an order issued by a judge acting ‘in the
clear absence of all jurisdiction.’” Mays, 97 F.3d at 114.

26

Since the FAC alleges that the court issued the
order in the complete absence of all jurisdiction by failing
to first order to show cause hearing based on an affidavit
establishing probable cause quasi-judicial immunity should
not be granted the County detective respondents.

The warrant in question is also facially
defective since there is no affidavit attached to it as
required by California Code of Civil Procedure Sec. 1211(a).

The County detective respondents are also not
entitled to qualified immunity since the conduct alleged “is
so patently violative of the constitutional right. that
reasonable officials would know without guidance from the
courts that the action was unconstitutional, closely
analogous pre-existing case law is not required to show that

the law is clearly established.” Mendoza v. Block, 27 F.3d
1357, 1361 (9th Cir. 1994); see Backlund v. Barnhart, 778

F.2d 1386, 1390 (9th Cir. 1985) (“Certainly...[Sec. 1983
plaintiffs] need not always produce binding precedent...
There may be cases of conduct so egregious that any
reasonable person would have recognized a constitutional
violation.”).

This is a case of “conduct so egregious that any
reasonable person would have recognized a constitutional
violation”; the detectives can read the warrant, it
establishes the right to bail and did not authorize them to
arrest petititioner without bail and then place him in solitary

27

confinement. And it was unreasonable to first bring him
before the court on Tuesday, October 21, 1997, holding him
in confinement an extra day, when the court was open on
Monday, October 20, 1997. (CR: 19; ER: 15, 11. 10-13).
(f) The FAC sufficiently alleges that

the County detective respondents

acted pursuant to official policy

for purposes of holding the County

liable under 42 U.S.C. Sec. 1983. is

“In this circuit, a claim of municipal liability
under section 1983 is sufficient to withstand a motion to
dismiss even if the claim is based on nothing more than a
bare allegation that the individual officers’ conduct
conformed to official policy, custom or practice.” Karim-
Panahi v. Los Angeles Police Department, 839 F.2d 621, 624
(9th Cir. 1988). This is consistent with notice pleading
standards under Federal Rule Rule 8 and this Court’s
precedent which governs Sec. 1983 claims against
governmental entities.

The district court cities two Court cases for the
proposition that appellant must allege that the officers
acted pursuant to a policy that caused a violation of
his constitutional rights. (App. B) (CR: 38; ER: 6, 11. 23-
26, 7, 11. 1-10) (citing Board of County Commissioners of
Bryan County _v. Brown, 520 U.S. 397, 404 (1997) and City of
Oklahoma City v. Tuttie, 471 U.S. 808, 824 (1985) (Brennan,

28

DAM GRO TS rt

J., concurring)).

First, the Court precedent is distinguishable
since it does not deal with pleading standards for Sec. 1983
liability under a Monell? theory of liablility, but the
standards required at the proof stage. The Court proof
standard is not required to be plead to withstand a 12 (b) (6)
motion.

Notwithstanding this, the FAC does plead that
the actions taken by the County and the County detective
appellees was causally linked to official policy, custom or
practice that deprived the appellant of his constitutional
rights. (CR: 19; ER: 16, 11. 19-25). Since the FAC does
allege conduct by the officers that constitutes a violation
of appellant’s constitutional rights the causal nexus
required to be plead between individual governmental conduct
and official policy has been satisfied. Even the district
court agrees that appellant need not specifically identify
the policy pursuant to which the officers were acting. (CR:
38; ER: 38, 11. 1-3).

However, from the above discussion it should be
obvious that one way the “official policy” issue is satisfied
is by way of the actions taken by the County and County
detective respondents in arresting petitioner pursuant to an
unconstitutional warrant issued by an official policymaker,

Referring to Monell v. New York City Department of
Social Services, 436 U.S. 658, 690-694 (1978).

29

the judge who signed and issued the warrant. And the FAC
alleges that petitioner was brought to the judge’s court in
prison attire after his arrest and raises the issue whether
the County and County detective respondents actions were
ratified by an official policymaker. (CR: 19; ER; 15, 11. 10-
13).

Petitioner has sufficiently alleged facts
constituting a Monell claim
///

30

CONCLUSION
For all the foregoing reasons, appellant

respectfully requests a reversal of the Order and Ninth
Circuit Decision with a remand to be able to proceed on his
lawsuit.

Dated: May 31, 2001 espectfully s pytited \
\\ \ Qi
a ve‘
—.

USTIN R. DAHILZ ~
Pefitio Pro Se

31

APPENDIX A

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
JUSTIN R. DAHLZ, No. 99-17109
Plaintiff-Appellant, D.C. No. CV-98-04020-VRW
v, MEMORANDUM*

COUNTY OF SAN MATEO;

SAN MATEO COUNTY

SHERIFF’S DEPARTMENT;

LEONARD E. CARDOZA,

Sheriff of County of San Mateo;

W.L.HUDSON & SONS, INC.,

a California corporation;

CLIFFORD V. CRETAN, :

Defendants-A ppellees.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding

Submitted February 14, 2001**
San Francisco, California
Before: ALARCON, KOZINSKI, and HAWKINS, Circuit Judges

*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

**The panel finds this case appropriate for submission without oral
argument pursuant to Fed R. App P.34(a\(2).

California law allows a judge to issue a warrant for failure to
appear for a. debtor's examination,Cal.Civ.Proc.Code Sec
708.170,and Dahlz points to nothing that establishes that the
warrant issued for his arrest was illegal.

Dahlz’s section 1983 claims against creditor and his
attorney fail because Dahlz cannot establish that they acted “under
color of state law.” The false arrestand imprisonment claims against
the creditor and his attorney fail because a judge lawfully issued the
bench warrant.

Dahiz’s claims against the county and sheriff's department
fail because he cannot establish that either hadf a “policy or
custom” that violated his constitutional nghts. Monell v. Dep’t of
Soc, Servs., 436 U>S>658,694( 1978). Dahlz’s detention does not
violate constitutional standards of due process. See Baker v._
MeCollan 443 U.S.137, 145 (1979).

The arresting officers were executing a valid court order and .
are entitled to absolute immunity for their actions. Coverdell v__
Dep't of Soc. & Health Servs, 834F.2d 758,764-65 (9th Cir. 1987).

The district court properly dismissed Dahlz’s state claims,
since Dahlz did not first present them to the appropriate state
agency within six months of the accrual of the cause of action.
Cal.Gov’t Code Sec 911.2; Ridley vy, City & County of San_
Francisco, 77 Cal.Rptr. 199, 202 (Cal. Ct. App. 1969). Moreover,
California law provides immunity to any peace officer who makes
an arrest pursuant to a warrant “regular upon its face” and without
malice. Cal. Civ.Code Sec 43.55.

AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JUSTIN DAHLZ,
Plaintiff,
Vv No, C-98-4020 VRW
COUNTY OF SAN MATEO,
DON HORSLY, COUNTY
OF SAN MATEO SHERIFF’S
DEPARTMENT, et al,
ORDER

Defendants

Ne Ne eee”

2

Plaintiff Justin Dahiz alleges causes of action for false arrest
and false imprisonment and for violation of his Fourth Amendmeni
rights pursuant to 42 USC Sec 1983. Before the court is defendants
County of San Mateo and Sheriff Don Horsly’s motion to dismiss.

According to Dahlz’s complaint, he was a defendant in a
case entitled W.L. Hudson & Sons, Inc v Elaine Wessel, et al, before
the Municipal Court of San Mateo County and a default judgment
was entered against him. See First Amended Complaint (“FAC”)
para. 11. The court ordered a debtor’s order of examination and
when plaintiff did not appear, the judge issued a bench warrant for
his arrest. See id para 12-14. Plaintiff was arrested pursuant to the
warrant and subsequently released on bail. See id para 15. The
court then ordered a new appearance for plaintiff, plaintiff once
again failed to appear, a new bench warrant was issued and
plaintiff was arrested again. See id para 16-25.

Plaintiff seeks to recover from the two sheriffs that arrested
him for violation of his civil rights pursuant to section 1983. As to
the detectives, the court first notes that they are not named in the
complaint and there is no indication that plaint’ff served them with
the summons and complaint. In any event, it is established that a
police officer executing a court order is entitled to absolute, quasi-
judicial immunity from section 1983 suits for enforcing the order.

See Henry vy Famer City State Bank, 808 F2d 1228, 1238 (7th Cir
1986), cited with approval in Coverdell vy Department of Social and.
Health Services 834 F2d 758, 764 (9th Cir 1987) (holding that
Child Protective Services employee was absolutely immune from

3

section 1983 liability for apprehending a child pursuant to a court
order). During both of plaintiffs arrests, the unnamed detectives
were acting pursuant to bench warrants signed and issued by Judge
George A. Miram. See Defendants’ Request for Judicial Notice,
Exhs A-B,

Plaintiff argues that the officers are not entitled to quasi-
judicial immunity under the “functional approach” taught by

Antoine vy Byers & Anderson , 508 US 429 (1993), and that to the
extent Coverdell and Henry are inconsistent with Antoine ,they
have been implicitly overruled. In determining whether quasi-
judicial immunity applies to court reporters charged with
producing verbatim transcripts of judicial proceedings, the Antoine
court looked to whether court reporters had historically been
accorded quasi-judicial immunity at common law. The court
compared modern court court reporters to common-law judges
who made handwritten notes during trials, and found that to the
extent that the judges’ actions involved an exercise of discretion,
they were distinguishable from court reporters’ actions, which are
ministerial in nature. See jd at 435-38. Plaintiff argues that because
arresting officers did not have discretion to obey or disobey the
warrant, they were performing a ministerial function and, pursuant
to Antoine, cannot claim absolute quasi-judicial immunity.

Antoine defines the judicial function that quasi-judicial
immunity seeks to protect as “the function of resolving disputes.
between parties, or of authoritatively adjudicating private nghts.”
Id at 435-36, quoting Bums y Reed, 500 US 478, 500 (1991)
(Scalia, J., concurring in judgment in part and dissenting in part).

. 4

Because court reporters do not perform this function by producing
verbatim transcripts of judicial proceedings, the Antoine court
concluded that “court reporters do not exercise the kind of
judgment that is protected by the doctrine of judicial immunity.” Id
at 437. Left unstated in Antoine is that the ability of the courts to
perform “the function of resolving disputes between parties, or of
authoritatively adjudicating private rights,” is not otherwise
impaired by the threat of liability against court reporters for
preparing erroneous transcripts. Coverdell and other cases make
clear, by contrast, that the threat of liability against officials for the
performance of ministerial functions pursuant to a court order
would seriously impair the ability of courts to perform their
judicial function. See, e.g., Coverdell , 834 F2d at 764 (“The -
fearless and unhesitating execution of court orders is essential if the
court’s authority and ability to function are to remain

uncompromised.”); Kermit Construction Corp v Banco Credito v_
Ahorro Ponceno , 547 F2d 1, 2 (Ist Cir 1976) (“[A] fear of
bringing down litigation on [a court-appointed receiver] might color
a court’s judgment in some cases; and if the court ignores the
danger of harassing suits, tensions between receiver and judge seem
inevitable.”’).

Antoine does not involve an official acting pursuant to a
court order and therefore does not address the authorities indicating
that to subject such officials to the threat of liability compromises
the court’s ability to carry out its discretionary function. The
Seventh Circuit therefore conciuded, rejecting an argument based on
Antoine similar to plaintiff's argument in the instant case, that

5

Antoine “doles} not support the proposition that judicial acts that
are part of the judicial function are excluded from absolute
immunity because they could be characterized as nondiscretionary
or even ministerial.” Wilson vy Kelkhoff, 35 F3d 1438, 1444 (7th
Cir 1996). Rather, Antoine “stands for the proposition that
ministerial acts unrelated to the function the immunity is intended
to protect are not covered by absolute immunity.” ]d, The plaintiff
in Wilson argued that because the actions taken by Illinois prisoner
review board officials who wrongfully revoked his mandatory
supervised release were not discretionary, but were governed by
law, the officials were engaged in a ministerial function and were
not eligible for quasi-judicial immunity. The Wilson court
concluded that regardless whether the prisoner review board
officials’ actions could be characterized as ministerial, they were
protected by quasi-judicial immunity because their actions were
related to the exercise of a judicial function -- determining whether
the plaintiff was entitled to supervised release. See jd.

Plaintiff does not provide any authority calling Coverdell,
Henry or other analogous authority into question in light of
Antoine . Given the rationale behind quasi-judicial immunity as
expressed by Antoine , and the Seventh Circuit’s intérpretation of
Antoine in Wilson , plaintiff's contention that Antoine casts doubt
on Coverdell and Henry is meritless. Because the officers that
arrested the plaintiff were acting pursuant to a court order, valid
upon its face, they are entitled to quasi-judicial immunity for their
actions in arresting plaintiff.

6

Even if the officers were not entitled to absolute, quasi-judicial
immunity for their arrest of plaintiff, they would be entitled-to
quélified immunity. See Barlow vy Ground , 943 F2d 1132, 1139
(9th Cir 1991) (police officers entitled to qualified immunity for
seizure of blood pursuant to facially valid warrant subsequently
invalidated by state court).

Plaintiff also ‘seeks to recover from the County of San
Mateo for the actions of its detectives. The County cannot be held
liable pursuant to section 1983 on a respondeat theory. See

Thompson v City of Los Angeles , 885 F2d 1439, 1443 (9th Cir
1989), citing Monell y New York City Department of Social
Services , 436 US 658, 690-94 (1978). A municipality is liable
under section 1983 when “action pursuant to official policy of
some nature cause[s} a constitutional tort,” Monell , 436 US at
691, or when the municipal body “has a policy of inaction and
such inaction amounts to a failure to protect constitutional rights.”
Qviatt vy Pearce , 954 F2d 1470, 1474 (9th Cir 1992), citing City of
Canton vy Harris ,489 US 378, 388 (1989).

Plaintiff contends that he has inadequately stated a claim
for municipal liability pursuant to section 1983 based on his
allegation that “in doing all of the things herein alleged, defendants,
and each of them, acted under color of the authority of the
statutes,regulations, customs and usages of the County of San

Mateo ***.” Compl para 29. Plaintiff cites Kanm-Panahi v Los.
Angeles Police Department , 839 F2d 621, 624 (9th Cir 1988) , for
the proposition that “[i]n this circuit, a claim of municipal liability
under section 1983 is sufficient to withstand a motion to dismiss

7

ms even if the claim is based on not[h]ing more than a bare allegation
that the individual officers’ conduct conformed to official policy,
custom or practice.” Kanm-Panahi quotes this language from Shah
y County of Los Angeles , 797 F2d 743, 747 (9th Cir 1986) ,
which cites Guilory vy County of Orange , 731 F2d 1379 (9th Cir
1984) , as support for the proposition.

As noted above, however, plaintiff must do more than

indicate that the officers acted pursuant to a municipal policy, he
must allege that they acted pursuant to a policy that caused a
violation of his constitutional rights..

[I]t is not enough for Sec 1983
plaintiff merely to identify conduct
properly attributable to the munici-
pality. The plaintiff must also
demonstrate that,through its
deliberate conduct, the municipality
was the “moving force” behind the
injury alleged. That is, a plaintiff
must show that the municipal action
was taken with the requisite degree of
culpability and must demonstrate a
direct causal link between the
municipal action and the deprivation
of federal nights.

east 6.0 ; eP rE ; E
520US 397, 404 (1997). To hold otherwise, “would violate the
evident congressional intent to preclude municipal liability in cases
in which the city itself. was at fault.” City of Oklahoma City v_
Tuttle , 471 US 808, 824 (1985) (Brennan, J., concurring).

Because it was clear in Kanm-Panahi . Shah and
Guilory that the officers’ conduct as alleged by the plaintiff
constituted a violation of his constitutional rights, there was no
question in any of these cases that a municipal policy encouraging
such conduct would be culpable and have a direct causal link to a
deprivation of federal rights. See Kanim-Panahi , 839 F2d at 624
(plaintiff alleges that officers arrested him “unlawfully and with no
reason, “ after which they beat, assaulted and tortured him); Shah ,
797 F2d at 743 (plaintiff alleges that prison deputies “assaulted
and harassed him, denied him medical treatment, and opened his
mail without his consent.”); Guilory , 731 F2d 1379, 1382
(plaintiff alleges that police chiefs arbitrarily and capriciously
denied his applications for a permit to carry a concealed weapon).
In each of these cases, the proposition that “a claim of municipal
liability under section 1983 is sufficient to withstand a motion to
dismiss even if the claim is based on nothing more than a bare
allegation that the individual officers’ conduct conformed to official
policy, custom or practice,” was intended to make clear that
plaintiff does not need specifically to identify the policy pursuant
to which the officers were acting.

This does not imply that plaintiff may survive a
motion to dismiss based on such a bare allegation where it is

9

apparent from plaintiff's own complaint that any policy pursuant
to which the officers were acting could not have been the cause of a
deprivation of plaintiff's federally protected rights. Plaintiff makes
no real attempt to challenge the validity of the warrant. He asserts
that the defendants “acted with a complete absence of jurisdiction,”
a conclusionary allegation that does not even address the warrant
by its own terms. See FAC para 33. The officers’ conduct in
arresting plaintiff pursuant to a valid warrant was entirely lawful.
See Cohen v Nomis , 300 F2d 24, 31 (9th Cir 1962); Johnson v_
Miller , 680 F2d 39 (7th Cir 1982). The court has no doubt that in
doing se, they were acting pursuant to a policy of the County of
San Mateo. Such a policy, however, is entirely lawful. Indeed, it is
the policy of the State of California that officers who fail to arrest a
person pursuant to a valid warrant are subject to criminal liability.
See Cal Penal Code Sec 142. Accordingly, plaintiff cannot allege
that the County of San Mateo’s policy was the cause of a
deprivation of a federal night and his section 1983 claim against the
county ‘must therefore fail. oO

Next, the court turns to plaintiff's attempt to
recover from the unnamed detectives for false arrest and false
imprisonment. | ~

There shall be no liability on

the part of, and no cause of action

shall arise against, any peace officer

who makes an arrest pursuant to a

warrant of arrest regular upon its

face if the peace officer in making the

10

arrest acts without malice and in the

reasonable belief that the person

arrested is the one referred to in the

warrant.

CA Civil Sec. 43.55. Although the arrests plaintiff complains of
were made pursuant to bench warrants regular on their face,
plaintiff alleges that “[t]he actions by defendants, and each of
them, were *** wilful, malicious and in reckless disregard of
plaintiffs health and safety.” FAC para 39. Such conclusory
allegations of malice, however, do not suffice to defeat the privilege
of section 43.55. See Lopez » City of Oxnard , 207 CatApp3d 1, 9
(1989). Accordingly, defendant officers are privileged from
plaintiff's claims of false imprisonment and false arrest.

Finally, the court turns to plaintiff's claims against
defendants WL Hudson & Sons, Inc and Clifford V. Cretan for
violation of his civil rights pursuant to section 1983, false arrest
and false imprisonment. The only factual allegations regarding these
defendants are that Clifford V. Cretan, an attorney for WL Hudson
& Son, plaintiff's judgment creditor, prepared a bench warrant for
the Judge Miram’s signature, pursuant to which plaintiff was
arrested. Plaintiff offers neither authority nor argument for the
proposition that such conduct can give rise to liability under any of
his theories. Plaintiff's claims against Clifford V. Cretan and WL
Hudson & Sons, Inc are DISMISSED,

For the foregoing reasons, defendants’ motion to
dismiss (Doc 9) is GRANTED.

IT IS SO ORDERED.

11

VAUGHN R. WALKER
United States District Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2275%3A1. Public record. Not legal advice.