In the United States Court of Appeals

For the Ninth Circuit

___________________________________________________________

Docket Number: 04-56244

(DC No: CV 04-01857 RGK, Los Angeles Western Division)

___________________________________________________________

Pierre Genevier

Plaintiff – Appellant (ProSe)

V.

US Citizenship and Immigration Services

Defendant

And

Los Angeles County Department of Public and Social Service

California Department of Social Service

Defendants - Appellees

On appeal from the order of the US District Court dated May 18 2004

(and related order dated July 29 2004)

Reply to Appellees’ briefs

Pierre Genevier

423 East 7^th Street, RM 528 emails: p_genevier@yahoo.com,

Los Angeles, CA 90014 pierre.genevier@laposte.net

Table of contents

I Statement of the case. P. 4

II Comments on LASS ‘Statement of the case’ paragraphs. P. 4

A Comments on the ‘undisputed material facts’ paragraphs. P. 4

B The nature of the ‘misrepresentations’ in this case. P. 5

III Comments on LASS ‘Arguments’ sections. P. 6

A Comments on section A. P. 6

B. The comparison of the case with existing legal authority. P. 6

1) Misrepresentations involving risks of physical harm P. 7

2) Reference to Michael J. By through Trout case. P. 8

3) Reference to the Schonfeld case. P. 8

C. The silence on GC 815.2. P. 9

D. The punitive damages. P. 10

E. The remarks concerning the immunity granted by GC 821.6. P. 10

IV Comments on CASS ‘Arguments’ paragraphs. P. 11

V Conclusion P. 14

This reply (and its 7 copies) is filed with a copy of the letter sent to appellees to informed them of the extension of time to reply to their briefs (see page 18).

Table of authority

Federal Cases

Fitzpatrick v. Bitzer, [427 US 445 456 Pp 13-16 (1976)] P. 12

Goldberg v. Kelly [397 U.S. 254 (1970)] P. 12

Kimel et al. v. Florida Board of regents et al. [139 F. 3d 1426 (2000)] P. 12

Lapides v. Bd. Of regents [122 S. Ct. 1640 (2002)] P. 13

Nevada Dept. of Human resources et al. V. Hibbs et al. [273 F. 3d 844 (2003)] P. 12

Tennesse v. Lane [541 US ---, 124 S. Ct. 1978(2004)] P. 12

State Cases

Michael J. By and Through Trout V. Los Angeles County, Dept. of

Adoption (app. 2 Dist 1988) 247 Cal. Rptr. 504-513 P. 8

Schonfeld v. City of Vallejo (1974) 50 cal App. 3d 401, 404 411, P. 8

123 Cal. Rptr. 669.

Scott v. County of Los Angeles [(App. 2 Dist. 1994)

32 Cal. Rptr. 2d 643, 27 Cal. App. 4^th 125] P. 11

Eastburn v. Reg’l Fire Prot. Auth (Cal. Dec. 2003) WL 229 65516 P. 10

Zelig v. County of Los Angeles (2002)27 Cal. 4^th 1112, 1127 P. 9

Statutes

Government code 815 P. 4, 9

GC 815.2 P. 4, 5, 9, 10,14

GC 818.8 P. 4, 5, 6, 7, 9

GC 821.6 P. 10, 11

GC 822.2 P. 9, 10

GC 3294, 825 P. 4, 10,14

Constitution

11^th Amendment P. 11, 12, 13, 14

14^th Amendment P. 11,12, 13

Miscellaneous

California Form of Pleading and Practice (CFPP). P. 9

West’s Annotated California Code of Government, code 1-939 (WACCG). P. 11

I Statement of the case.

This is an appeal from the District Court Order dated May 18 2004 (and related order dated July 29 2004). The appellant’s brief (containing all the details on the case) was filed on September 16 2004 after the Appeal Court granted the appellant’s motion to appeal in forma pauperis. On September 27 and 28 2004, the two appellees, LA County DPSS (referred to LASS) and California Dept. of Social Services (CASS), filed their answering briefs in which they asked the Court to affirm the District Court order. The object of this reply is to comment shortly the two appellees briefs, and to confirm the conclusions of the initial appellant brief.

II Comments on LASS ‘Statement of the Case’ section.

A Comments on the ‘undisputed material facts’ paragraphs.

The purpose of a lawsuit or an appeal is not to dispute what is written in the ‘Civil Code’. The Californian politicians vote the laws (Civil Code,), and, only they, can change these laws and codes. But judges (you and your colleagues) have the responsibility to interpret the different articles of law described in the Civil Code to take your decision on specific cases and to make the civil code more precise for the judgment of other cases.

So it obvious that GC 815, 818.8,, or 3294 are ‘undisputed’. It is also obvious that the purpose of the appellant brief is not to dispute them, but to analyze the applicability of GC 815.2 instead of GC 815, to analyze the nature of the misrepresentations in this particular case and the nature of the misrepresentations for which GC 818.8 is not applicable, and to present the different ‘precisions’ or comments made by Supreme and Appeal Courts judges on this GC 818.8 article and on similar cases or wrongdoings.

And no, it is not undisputed that the California cases have determined that GC 818.8 gives the immunity to public entities for all types of misrepresentations (as written in Appellees’ brief on page 9). ‘California cases have’ not ‘determined that the immunity conferred on public entities pursuant California Government Code 818.8 applies to’ all types of ‘intentional and negligent deceit and misrepresentation, …’ , there are cases for which this immunity does not apply or hold.

The LASS clearly ignore the details presented on the exceptions to GC 818.8, the existence of GC 815.2, and the remarks associated with the applicability of this GC 815.2 statute. Similarly, it ignores the California Supreme Court definition of the term ‘misrepresentation’ in the context of GC 818.8, which demonstrates that the arguments presented by the appellant are valid. The California reporter 247 discusses all these issues in the Michael J. case and explains that the immunity under 818.8 is not ‘absolute’.

B The nature of the ‘misrepresentations’ in this case.

As mentioned in the appeal’s brief and earlier pleadings, the California Supreme Court has defined the word ‘misrepresentation’ used in GC 818.8, and has clearly stated that it meant ‘interference in the nature of common law action for deceit with financial or commercial interests’ -which is not the type of case described in the complaint - ‘and not any conduct that literally could be called a misrepresentation such as misleading turn signal by a driver or the failure of state authorities to disclose…’ – which is the type or nature of the misrepresentation described in the complaint.

A (intentional) lie or misrepresentation of facts and laws that leads (for the victim) to the loss of social benefits necessary to survive is not a conduct that affect the financial and commercial interest of the victim, it is a conduct that is life threatening for the victim and that affects directly his/her health. Therefore, it is a conduct similar to giving a wrong direction to a driver that will lead to an unavoidable accident causing death or serious physical injuries. This is explained in the appellant brief, but ignored by the by the Appellee, LASS.

III Comments on LASS ‘V Argument’ sections.

A Comments on section A.

When the Appellee, LASS, (or the District Court) writes ‘LASS cannot be held liable for misrepresentation’, it implies or it means that it is not possible (or it is impossible) for the LASS to be held liable for misrepresentation, which is obviously not true, since there exists exceptions to the immunity granted by GC 818.8. It also ignores the effort of the Supreme Court to define the term ‘misrepresentation’. The LASS’s counsel uses, therefore, an inappropriate language to make an incorrect point.

B The comparison of the case with existing legal authority.

The appellee, LASS, makes a brief comparison of the cases used in the different pleadings and the appellant’s brief to justify that the immunity does hold in this case, but its remarks are not supported by any precise reference to the complaint (or appellants pleading) or by any meaningful explanation about the nature of the misrepresentations or the area in which these misrepresentations took place although this is obviously a key element to determine the applicability of 818.8, as seen above and in the initial brief.

1) Misrepresentations involving risks of physical harm.

For example, in its reference to the Johnson case, it writes ‘Appellant/s allegation in his complaint,, clearly manifest that there were no peril of physical harm of which he was not cognizant nor were they a type of peril that would not be readily discoverable by an endangered person….’, but it forgets to comment the precise references made by the appellant in his appeal brief or reply to earlier motion. It also makes no precise reference to the parts of the complaint in which the risks and damages associated with the wrongdoings are described. It simply states that there is no such risk of physical harm or perils described in the complaint!

The appellee states also that the appellant definition of ‘physical harm is excessive in scope’, but this is not true. There are several ways to kill one person, starving a person to death or giving AIDS or other deadly diseases are ways as efficient as shooting someone in the head. Similarly there are several ways to physically harm someone, subjecting someone to malnutrition that has grave consequences on this person health, or force someone to sleep in the street (or in ‘indecent’ shelters) to put him/her at risk of being attacked or killed are some ways to physically harm someone.

Finally, It is clearly stated in the complaint that one of the objectives of the wrongdoings was to make the appellant loose (illegally) his refugee status, so since the refugee status is a matter of life and death, and is granted when an individual is at great risk of being victim of more persecutions if he is obliged to return to his country, the effort to make the appellant loose his refugee status creates necessarily a serious risk of physical harm for him.

2) Reference to Michael J. By through Trout case.

The LASS also ignores the fact that Michael J. By through Trout is a case of misrepresentation that took place in the social services area and is therefore closely related to the present case. In this case the Appeal Court has noted that the immunity for intentional misrepresentation did not apply because ‘such a proceeding is not a commercial transaction’. Similarly, the attribution of social benefits is not a commercial transaction, and therefore the immunity granted by 818.8 does not apply (the Michael.. decision is consistent with the definition given by the Supreme Court, see above p. 5).

Finally, refugees (and homeless) like a prospective adoptee are an extremely vulnerable population, and lying to end prematurely the refugee assistance has grave consequences for the refugee like lying on the health of the prospective adoptee has grave consequences for the parents and adoptee involved in the adoption process. It is not fair to take advantage of the weakness of refugees, homeless, adoptee or possible parents who offered to put their resources and emotional support to help an adoptee.

3) Reference to the Schonfeld case.

Finally, the LASS finishes its comparisons of cases with the Schonfeld case. It appears that the law-book used by the appellant (California Form of Pleading and Practice) is imprecise on this particular legal case (even refers to an incorrect date ‘1974’), and that several different issues were addressed by the court in this case. It seems the court confirms that the immunity given by GC 822.2 does not hold for misrepresentation involving employees guilty of actual malice and corruption, and confirms that the immunity given by GC 818.8 holds for fraudulent concealment.

The California Form of Pleading and Practice omits (probably voluntarily) to specify that the immunity refers to GC 822.2, it simply states ‘immunity for misrepresentation’ without specifying GC 822.2 or GC 818.8. For the appellant, it made sense that the immunity granted by GC 818.8 should not hold when the employees are guilty of corruption and actual malice, otherwise it would be a deliberate encouragement to harm, vex, annoy and rob the poor instead of serving/helping them. In Schonfeld there were no allegation of corruption or actual malice against the city manager, therefore the court granted the immunity, but it is not the case here.

C. The silence on GC 815.2.

In its paragraph B, the LASS repeats that, because of GC 815, it cannot be held liable for the wrongdoings described, but it ignores again the remarks made in the appelant’s brief about GC 815.2 that make public entities liable when their employees can be held accountable (or liable) for their wrongdoings and when they act within the scope of their employment. The section GC 815.2 is mentioned in 8 different pages and even in the title of one of the paragraphs, but the LASS totally ignores it and the arguments presented with it, this means that the appellant’s arguments are valid.

The case used by the LASS, Zelig v. LA County, describes the

complaint of a woman whose child was shot dead by her ex-husband in the LA Court house, it is of course a very tragic case, but not related to the present case describing intentional lies and other grave wrongdoings to rob a refugee homeless of the most basic social benefits necessary to survive.

Similarly, in the Eastburn case, the court concluded that the dispatcher enjoyed immunity under section 1799.107, and therefore that the dispatcher employer was immune under section 815.2, which is not the case here because the appellant has explained that the employees did not enjoy the immunity under 822.2 because they are guilty of corruption and malice. The LASS never denied that the complaint described that the employees are guilty of corruption and actual malice (because the punitive damages are asked on this ground).

D. The punitive damages.

Again the LASS repeats its arguments without commenting the explanations given by the appellant about the possibility (for counties) to pay punitive damages given by GC 825, and it does not comment the fact that the punitive damages are addressed against the employees (also called defendant) responsible for the wrongdoings (who are guilty of corruption and malice) and acting within the scope of their employment.

E. The remarks concerning the immunity granted by GC 821.6.

In its section D, the LASS mentions that it is not liable for damage resulting from a judicial or administrative proceeding, but the article 821.6 apply for the proceeding that are instituted and prosecuted by public employees, which is not the case here. As the appellant has mentioned in his previous pleadings, he is the one who filed a complaint at the administrative court, so it is not the LASS that instituted or prosecuted the complaint.

Moreover, the damage is due to the LASS refusal to follow (and the lies about) the regulation, the procedures and the order of the judge, to the refusal to pay the benefits associated with his refugee status (housing assistance, cash benefits,) to keep him homeless, and to the obligation for the appellant to complain over and over against the LASS and CASS, but it is not directly due to the proceeding itself (the administrative law judge ruled in favor of the plaintiff as explained in the complaint, and the LASS did not even file a rehearing request!).

Finally, according to the Scott v. County of Los Angeles case, section 821.6 did not immunize social workers for not following the regulation, parallel to the administrative proceeding, see Note of decisions no. 23 for section 821.6 in the ‘West’s Annotated California Codes Government 1-939’, which states ‘Statute immunizing public employee from liability for institution or prosecution of judicial or administrative proceeding within the scope of his or her employment did not apply to immunize county social worker from liability for failing to comply with regulations…’

IV Comments on CASS ‘Argument’ section.

In its briefs, the CASS repeats that the 11^th amendment bar this suit at the federal court without commenting the appellant’s remarks concerning the violation of the right to a due process guaranteed by the 14^th amendment, the timeliness of the removal and the dismissal without prejudice. It cites several cases which do not address the conflict between the immunity granted by the 11^th amendment and the right guaranteed by the 14^th amendment to support its claim (that the 11^th amendment bars this suit), although there are several specific cases that address this particular issue.

For example, in Goldberg v. Kelly [397 U.S. 254 (1970)] ‘The Supreme Court held that the interest of the eligibility recipient in the interrupted receipt of public assistance, which provides him with essential food, clothing, housing, and medical case, coupled with the state’s interest that it not be erroneously terminated, clearly outweigh the state’s competing concern to prevent any increase in its fiscal and administrative burdens.’

Or in Tennesse v. Lane [1978 (2004)], a case about congress’s enforcement power under section 5 of the 14^th amendment, Tennessee argued that the 11^th amendment prohibited the suit and filed a motion to dismiss. The Supreme Court held the eleventh amendment violated the victim fundamental right guaranteed by the due process clause of the 14th amendment. In Kimel et al v. Florida board of regent et al. (2000), the court held that section 5 of the 14^th amendment does grant Congress the authority to abrogate the States’ sovereign immunity.

This last case uses Fitzpatrick v. Bitzer, which says ‘ the 11th amendment does not bar a back pay award to petitioners … since the amendment and the principle of state sovereignty that it embodies are limited by enforcement …the substantive provision of the 14th amendment, which themselves embody significant limitation on a state authority. Congress in determining what legislation is appropriate for enforcing the 14th amendment may ,, provide for suit against states that are constitutionally impermissible in other context.’

More recently, in Nevada Dept. of human resources et al. v. Hibbs et al. (2003), the ninth circuit court has reversed a district court decision granting immunity under the 11^th amendment (on the ground that it did not violate the right guaranteed by the 14^th amendment), and the Supreme Court affirmed the 9 circuit court’s decision.

Finally, in Lapides v. Bd. of Regents (2002), the court held that waiver (of 11^th amendment immunity) is appropriate when State Attorney General, authorized to bring a case in Federal Court, has voluntarily invoked that Court jurisdiction. In this present case, although the State Attorney did not remove the case to the federal court, it certainly did not oppose the removal (and the US Attorney removed the case, most probably with the State Attorney ‘informal’ consent), so the State Attorney General has waived the 11^th amendment immunity when it did not oppose (and therefore authorized) the removal of the case.

[In fact it is the appellant that explained that the removal was not compatible with the 11^th amendment (because it would force the State of California to be judged at the Federal court without its consent) in his motion to remand!]. The CASS also did not contradict the fact that there are no independent and separate causes of action, so since there are several cases that respond to the question presented in this appeal and support that the right to a due process prevents states from using the 11^th amendment immunity, the District court decision should be reversed.

V Conclusion.

It appears clearly that the appellees’ arguments are very imprecise, and that the appellees omit - on purpose- to address the main arguments presented or main issues raised in the appellant’s briefs like the fact that the misrepresentation took place in the social services area and are not related to a ‘commercial transaction’, the fact that the misrepresentation are collateral to negligence in the performance of operational tasks, the fact that GC 815.2 apply because the employees are guilty of corruption and malice, the fact that GC 825 gives the possibility to counties to pay punitive damages, the conflict between the 11^th amendment and the right to a due process, the timeliness of the removal, and the fact that the dismissal of the CASS without prejudice is inappropriate in this case.

These deliberate omissions demonstrate that the appellant’s arguments are valid, and that the appellees are liable and deserve no immunity for the wrongdoings described in the complaint. Therefore, the appellant confirms his initial brief’s conclusions. The District Court order should be reversed and the causes of action against the LASS should be remanded for further proceeding (with leave to amend). The use of the 11^th amendment is unconstitutional in this case, and the cause of action against the CASS should be remanded for further proceeding (or at the very least the dismissal should be without prejudice to give a chance to the plaintiff to re-file his complaint at the State Court).

Dated: October , 2004

By : _____________

Pierre Genevier

Certificate of compliance pursuant to Fed. R. App. 32 (a) (7) (C) and Circuit rule, rule 32-1 for case no: 04-56244

Pursuant to Fed. R. App. O. 32 (a) (7) (C) and Ninth circuit Rule 32-1, I certify that the attached brief is proportionally spaced, has a type face of 14 points and contains 3659 words (421 lines).

Dated October , 2004

By :______________

Pierre Genevier

Statement of related cases

Appellant is aware of no related case pending before the court.

Certification of Service

The undersigned hereby certifies that on October 2004, he personally delivered 2 copies of the foregoing (brief) to the following (or their representatives):

Mrs. Debra Khantamour, Attorney for the Los Angeles County, DPSS (defendant), at 5850 Canoga Avenue, suite 600, Woodland Hills, CA 91367, Fax : (818) 380 0028.

Mrs. Jung D. Shin, Deputy Attorney General for the CA Department of Social Services (defendant) (State of California), 300 South Spring, Suite 5212, Los Angeles, CA 90013, FAX : (213) 897 2810.

_____________

Pierre Genevier