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MarYi n L. Rudnick (Bar No .: 141648) LAW Of FICES MARVIN L. RUDNICK42 East Colorado Bl vd., Second Floor Pasadena, California 91105 Telephone: (626) 796-7799facsimile: (626) 796-2029
Attorney for MARK NANSEN
SUPERIOR COURT OF THE STATE OF CALI FORNI
A FOR THE COUNTY OF LOS ANGELES
NORTHEAST JUDICIAL DISTRJCT
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TH E PEOPLE OF THE STATE OF ) CALIFORNIA, )
)Pla i1 ti ff, )
)vs. )
)))
MARK N ANSEN , ))
De fenda n t. ))
)))
CA SE NO. I Al-103330
N OTICE OF M OTION AND MOT IONTO DISMISS FOR LACK OFJUR ISDICTION; DECLARATIO NS OF ROBERTA N ANSEN
HEARING DATE: .J un 7,20 1 3
TIME: 8:30
DEPT: 4
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IMOTION TO DISMISS FOR LACK OF JURISDICTION
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2 TO: THE CLERK OF THE SUPERIOR COURT OF LOS AN GELES COUNTY AND TO
3 THE PROSECUTING ATTORNEY FOR THE CITY OF SOUTH PASADENA :
4 PLEASE TAKE NOTICE THAT on June 7. 2013 at 8:30 A.M., or as soon thereafter as lhc
5matter may be beard, in Department "4" of the above enti tled court, Defendant Mark Nansen vvill
6move lhis Court to dismiss this case on the grounds that the court lacks jurisd iction under California
7Consti tut ion Art. XX § 3, Government Code §§ IOO(b), 36900(a), Pena l Code § 69 l (d) and
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9 1\!lontgomery v. Superior Court of Solano County, 46 Cal.App.Jd 657, 668 ( 1975). Defendant
10 0 MARK NANSEN hereby submits his Motion to Dismiss for Lack of Jurisdiction.
1 1 The motion will be based on this notice of motion, the motion, on the memorandum of
12 poi nts and authorities served and fi led herewi th, the records on file i n this action , the Declaration o f13
Roberta Nansen, and on su ch oral and docu mentary evidence as may be presented at th e hearing on14
the motion.15
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17 DATED: May 13, 2013
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LAW 0 ·FICES OF MARVIN L. RUDNICK
By:--1.L_.L !:::'.:_ --'-"'-MARVIN L. RUDNICKAttorney for Defendant MARK NANSEN
28MOTION TO DISMISS FOR LACK OF JURISDICTION
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MEMORAN D UM OF P OINTS AND AUTHORITIES
2Defendant MARK NAN SEN hereby submit s his Motion to Dismiss all charges against hi m
3wi th prejudice on the following grounds:
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s ( l ) That the Misdemeano r Complaint of July, 201 l and the First Amended
6 Misdemeanor Complaint of January, 2012 was brought by a prosecutor vvho was not
7 duly qualified to do so under California law and Consti tution.
8(2) That the City Prosec u tor, who brough t these Complaints lo this Court. was not
9sworn to act as requi red by the California Consti tution Article XX, Section 3 until
10May 15, 2012.
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12 (3) That the City Prosecu tor who brought the crimi nal complaints was not duly
1 3 appointed by the City Council to do so.
14 (4) That the City Prosecu tor did not disclose to this Court or opposing cou nsel his
1 sfail ure to be properly appointed or constitutionally sworn as a public officer.
16Because of these violations, Defendant requests this Court to d ism i ss al l charges pend i ng
17wi th pr judice and further d ismiss the crimi nal complai nts ab initio with prejud ice since they were
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19 brought i n violation of the California Constitution and laws.
20 Cal i fornia law requires a criminal prosecution to be brought in the name of t he Peopl e by
21 a public officer. Government Code §§ 1OO(b), 36900(a), and Penal Code § 691(cl). Thus, the duty to
22 prosecute a municipal ordinance must be by a person qualified to appear in court for this purpose.23
Jvfontgomer y v. Superior Court a/ Solano County, 46 Cal.App.J c! 657, 668 (1975). As further24
described below and by way of decl arations and exhibits, Defendant contends that his case (a nd that25
26 of his wife) was brought by a person who was not qualified to do so, who knew, or should have
27 known, this fact and who did not inform the Court of this transgression. Defendant contends that for
28 a prosecutor to advise the Court of this fact would be tantamount to an admission of a crirninal MOTION TO DISMISS FOR LACK OF JURISDICTION
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charge, since failure to be sworn under these circumstances is a misdeme anor. Government Code.
§ 1 303.
ALL CHARG ES MUST BE DISMISSED SINCE THE CITY PROSECUTOR
'VAS NOT SWORN AT THE TIME HE BROUGHT THE MISDEMEAN OR COMPLAINTS
The case agai nst Mark Nansen was first brought before this Cou rt as a 16-count
Misdemeanor Complaint ("MC") on July 26, 2011 by the City of South Pasadena ("City") See
Exhi bit "l". The MC was also brought against his wife, Roberta Nansen who was later
dismissed from the case (collect i vely, the "Nansens"). The charges were filed by what was
believed by the Nansens to be a duly appoin ted and sworn City Prosecutor , Jamaar Boyd-
Weatherby ("Ci ty
Prosecutor" or "Mr. Boyd-Wea therby"). Al though he brought the MC, unknown to the Nansens, the
City Prosecutor was not sworn to act as a City Prosecutor as required by the Cali fornia Consti tution
since he took his oath on May 15, 201 2, nearly ten months after he first brought the charges and
even atlcr he brought the amended crimi nal complaint. Exhibi t "4"
A t all times before and duri ng the court proceedi ng, the City's prosecutor, Mr. Boyd-
Weatherby, acted as a fully authorized City Prosecutor and even admonished the Nansens on J uly
26, 20 1 1 that if they d id not appear before this Court on the day noticed they would be arrested. Sec
Exhi bi t "9". Nothing pu ts fear i n the heart of a citizen than the use of poli t ical power agai nst that
citizen. To use an unsworn and unappointecl City Prosecutor to enforce this power places a dagger
into the Consti tution, and of course, into the heart of the Nansens. Thus, as shown below , at the ti me
he brought the charges, the City Prosecutor could not act on behalf of the People to bring the
charges or even threat en arrest against the Nansens . Schaefer v. Santa Barbara Superior Court, 113
Cal. App. 2d 428,432 (1952).
Sometime pr ior to May 15, 2012 , the City Prosecutor knew he had not been sworn si nee
1 he took the oath on that date and must have known before then that he was unsworn . I t is unclear
28MOTION TO DISMISS FOR LACK OF JURISDICTION
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when that happened but this must be disclosed to this Court in order to evaluate jurisdiction issues.
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a second charging document, the First Amended Misdemeanor Complaint on January 19, 2012
("FAMC"), Mr. Boyd-Weatherby was still unsworn and unappointed yet he made no effort to
remedy this pred icament even though it seriousl y affected th is Court's jurisdiction. See Exhibit
"2". But, by then and without authority to do so, the City
Prosecutor had filed both criminal complaints, issued discovery in the name of a sovereign , opposed
the Nansens' request for additional discovery after the City Prosecutor provided only sanitized
information and opposed several motions including his conflict of interest when be provided
discovery of his supervisor, City Attorney Richard Adams' letter of April 19, 20 l 0 which
Defendants have repeatedly contended was exonerating.
On April 16, 2012, a month before he was purportedly sworn, the City Prosecu tor filed an
Opposi tion to the Nansens' Motion to Suppress the search of their properly . Yet, M r. Boyd-
Weatherby did not disclose that he was unsworn and unappointed to appear before this Court when
it convened a heari ng on May 15, 2012. He knew he had violated the statute and consti tu tional
requirements because the record shows he was svvorn the very same day, May J 5, 2012! Whethe r
Mr. Boyd-Weatherby was sworn by the City Clerk before this Court's 8:30 AM heari ng, or after, he
would have remembe red this even t. By not disclosing it to this Court, Mr. Boyd-Weatherby was
thereby concealing a matter of jurisd ictional significance that would have avoided months of
liti gation and cou rt time and tremendous expense to the Nansens in legal fees and costs as wcl I
as incred i ble mental anguish. If the City Prosecutor hid this fact to avoid embarrassmen t, he d id
so wi thout conscience, since he knew he was perpetrating a wrong in the face of the Court and a
serious injury to citizens who had been charged by him without authori ty. This is a violation of
California Rules of Professiona l Conduct, ru le 5-200 (B) and CCP § 1209(4) which finds con tempt
MOTION TO DISMISS FOR LACK OF JURISDICTION5
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an attorney abuses the process or proceedings of the court , or falsely pretends to act under authority
of an order or process of the court.
Defendants contend that the City Prosecutor did not d isclose his status lo the Cou rt
because other members of his law firm were not sworn either, even though they acted on bchal r of
the prosecuting authori ties to assist in bringing the charges. This included the City Attorney
Richard Adams, Mr. Boyd-Weatherby 's supervisor in the City, who was not sworn in as "City A
ttorney "
un til .J uly 17, 2012 after Mr. Boyd-Weatherby even though Mr. Adams knew of the need to swear
Mr. Boyd-Weatherby. See Exhi bi t "11". At the very least M r. Adams, as an officer of this Court,
should have advised the Court of the jurisdictional defect. His failure to disclose this fatal defect
must be incl uded in any consideration of sanction brought by this Court.
A thi rd Jones & Mayer lawyer also acted improperl y and wi thout proper au thori ty agai
nst the Nansens. Michael Do, descri bed as a member of the "City Prosecutor's Office" on the
I nspecti on Report submi tted by the City after it served the warrant signed by Judge Uranga on June
23, 20 I I. Mr . Do was not sworn u ntil August 23, 2012. See Exhibi t "7". Mr. Do 81so prepared
the A pplication for the Warra nt. His actions has special evid entiary and const itut ional mea ni ng si
ne he told the issui ng Judge that the Nansen s "expressly denied the City's request for an
inspection" even thou gh i n l ater plead ings, the City ad mitted that they simpl y had not heard back
from the Nansens. There remai ns no evidence of any express consent by the N ansens regard i ng this
search. N ot on l y die! Mr. Do mislead Judge Uranga about this lack of consent, he also failed to
disclose that he was not au thori zed to act as a City Prosecutor when he did so. These acts of
omission are cu mulative evidence of abuse. The City was never called to task why they used the
words "expressly" ·when the City knew the Nansens never spoke. But, as shown today, the City does
what it wan ts to do wi thout
the respect for the Jaw they are constitutionally bound to honor. That the City sought to use a false
staternent to en force an invalid warrant , while the city attorneys knew they, themselves, were
MOTION TO DISMISS FOR LACK OF JURISDICTlON
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ly act, exhibits a pattern of abuse against the Nansens that m ust now be remed ied . California
authority is clear that a prosecutor commits misconduct if sa i d concl uct is improper, regardless of
whether the conduct was purposeful or the prosecutor acLed in bad faith. People v. Hill (I998) 17
Cal.4th 800, 828 and People v. Bolton (1979) 23 Cal.Jc! 208, 21 3. see also Frazier v. Cupp (1969)
394 U.S. 731, 736 [bad faith is not necessary to prove prosecu toria l a buse where there exists a v
iolation of a del'endan t's constitutional right of confron tat ion ..J
CITY PROSECU TORS 'WERE N OT SWORN OR DULY APPOINTED BY THE
CJTY COUNCIL
Not only was Ci ty Prosecutor Boyd-Weatherby u nsworn when he brought the u nd erl y i ng
charges, but he was not appointed by the City Council to act on it's behalf as requi red by law. See
Ex hi b i L "J O". In a May I , 201 3 e-mail, the deputy City Clerk acknowledged that nei ther M r. Boyd-
Weatherby nor Mr. Do were appo inted by the City Council to act as prosecutors. Thus. even thou gh
they were not sworn to act for the City, the Ci ty Prosecu Lors a lso were not authorized to act on
behalf of lhc City because they were not formally appointed. Defendants contend that the
prosecutor's failure to be sworn and properly appointed, and not disclosing this to the court, exhi bi
ts arrogance by the City Attorney's Office regard ing their obligations to this Court that just i fy
contempt proceedings and other appropriate sanctio ns.
The case before this Court is not a traditional criminal case. Each of the Misdemeanor
Complai nts arose from purported violations of the City building codes. Defendant has contended
that since there was no perman ent structure buil t on his hillside lot, there is no basis for the
charges. The Defendant brought support for this position from a Senior Bui ldi ng I nspector for
the City of Burbank, Thomas Zartl. Exhibit "3". The Nansens have vigorously contended that no
permits arc
required under the circumstances in which they were charged and they have acted i n good faith. Thi s
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, whi ch brought the charges without constitutional au thori ty and conccakd this fact from this
Court.
JONE S & MAYER \.VERE ADMON ISHED BY THE
CALIFORN IA COURT OF APPEALS FOR NOT BEING SWORN IN 2007
The Nansens con tend that the City Prosecutor should have known of this because his
, firm, Jones & Mayer had previously been excoriated by the Appellate Di vision of the Superior
Court of Orange County, for faili ng to swear in a prosecuto r i n another cri mi nal case. x hi bi t
'S'. I n that case, .Jones & Mayer sought re l ief from a Superior Court order agai nst them for thei r
Ci ty
Prosecuto r not being sworn by argui ng a red herring -that a city legislat i ve body may con t ract
wi th a private attorney as special council to conduct prosecu tions of code violations. See Ex hi bi t
"8".
Th us, when caught i n 2007, Jones & Mayer sought to use contract theory to alleviate the i r
consti tutional d ilemma. Thei r failure then must prove to be to their detriment now . I n the Orange
County case, as in Nan sen today, neither City Prosecutor had been appoi nted by a Ci ty CounciL nor
had they been sworn lo so act. See Exhibit "5". The Jones & Mayer firm lost that case. The earlier
Cou rt deter m i ned that the failure to appo int the Ci ty Prosecutor and his fai l u re to be sworn prior
lo init iati ng the criminal proceed ings was fatal to that case. Id. Al instant, the Ci ty knew better and
acted abusively to the Na nsens and as such exhibi ted prejud ice that must also cause the case to be
fatal here.
THE CONSTITUT IONALLY MANDATE D OATH, AS PREREQUISITE FOR
PROSECUTI ON, HAS AN AUTHO RITY WHICH MAKES THE CITY'S
INSTANT EFFORTS PROH IBITED AS A "PRIVATE" PR OSECUTION
Although he was employed by Jones & Mayer, a private law firm, Mr. Boyd-\Vcatherby
TO DISMISS f ORISDICTION
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, acted as a public prosecutor here because he sought crimina l sanctions against the Defendant
Nansens. Weiner v. San Diego County, 2 10 F.3cl I 025, 1028 (9th Cir. 2000). As shown bclo\v,2
., where an attorney prosec u tes an individu al in a crimina l proceed i ng, he is a pu bl ic prosecu tor and a
4 pu bl ic officer. To become a City Prosecutor, he must follow two requirements. First, be m ust be
5 appointed and vested with such power by a legislative body, here, the City Council. Second. he must6
take the Consti tutiona l oath of office . As described herein, since M r. Boyd-Weatherby was nei ther7
appoin ted to act as a pu blic prosecut or by the City nor did he lake the Constitu tional oath u n t i l tvl ay8
1 5, 20 12, he Jacked the authority to initiate criminal proceed ings against Defendant Nansen.9
1 0 Furthermore , he lacked the authority to engage in acts on beha l f of the City such as argue mot ions to
1 1 t his Court, and sign declarat i ons as a "City Prosecutor".
1 2 "A public officer is a pu blic agent and as such acts only on beha l f of hi s pri nci pa l, the pu bl ic.1 3
whose sanction is genera lly considered as necessary to give the acL performed by the officer the
authori ty and power or a publ ic act or law." Coulter v. Pool, 187 Cal. 181 , 187 ( 1921). Whether anIS
i nd i vidual is a "public officer" depend s not on how a part icular officer may be designated or on1 6
1 7 what a statu te may call the office, but on "Lhe power granted and wi elded, the d ut ies a nd i·u nct i ons
1 8 per formed , and other ci rcum stances which m anifest the nature of the posi tion and mark its
1 9 character , i rrespective of any formal designation." People ex rel. Chapman v. Ramsey, 16 Cal. 2cl
20 636, 639-40 (1940).2 1
A Public Prosecutor is vested with the powe r to perform a pu blic function for a publ ic22
benefi t. See Schaefer v. Santa Barbara Superior Court, 113 Cal. App. 2d 428,432 ( 1952). He is
"clothed vv i th a part of the sovereignty of the state to be exercised i n the i nterest of the p u bl ic." Id.
25 "The sovereignty of the state resides in the people . . . and all prosecu ti ons shall be conducted i n
26 thei r name and by their authori ty ." Government Code, § 100; Penal Code, § 684 ("A cri mi nal act ion
27 is prosecuted in the name of the people of the State of California . . . "); See also Gov' t Code, §
28MOTION TO DISMISS FOR LACK OF JU RISDICTION
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36900(a) (violation of city ord i nances may be prosecuted by city in the.:: name of people of the State
of Cali fornia).
In carryi ng out their responsibilities, public prosecutors "must be i ndependen t of pr ivatt
i nfluenc es." People v. Parmar , 86 Cal. App. 4th 781, 797 (2001). Sabey v. City of Pomona, No. 8
239916, Apri l I 6, 20 13 _Ca l. App. 4th. _. A public prosecutor "is the representative not o r
any ordi nary party to a controversy, bu t of a sovereignty vvhose obligation to govern impartial · is
as compelli ng as i ts obligati on to govern at all ; and whose interest, therefore, i n a crimina l
prosecut ion is not that i t shall wi n a case, but that justice shall be done." Emphasis added. id.
Thus, the
Consti tu tional Oath stands for assurance of in tegri ty. Defendant contends that the City Prosecut or's
fai l u re to take the Oath , as a matter of law clisqual i fi es the Ci ty Prosecu tor and his firm, Jon es &
Mayer, j usti fying the instant motion to dismiss.
In his earl ier Motion to Disqualify the City Prosecutor and his firm , Jones & Mayer,
Defendan t contended that there was a conflict of interest between Mr. Boyd-Weatherby and hi s
supervisi ng attorney i n Jones & Mayer, Richard Adams, because the C ity Prosecutor chose to leave
M r. Adams off the trial wi tness li st and not use a letter that the Defendant argued exonerated hi m
and was Brady material. Defendant contended this was an injustice to him since the Ci ty Prosecu tor
had clearl y recei ved confident ial i n formation rrorn the City A ttorney, also a Jones & M nycr
pri,·atc counsel, to make this determination. Defendants now contend that when t his dctermi mil i on
was made to this Court on January 18, 2012, Mr. Boyd-Weatherby was not compliant wi th this
State's Constitutionally-manda ted Oath. As stated below, this is important lo protect citizens from
the very abuse the Nansens suffered and cont i nue to suffer in this case. As descri bed i n J>eoplc v.
l:,"11/wnks. 14 Cal. 4th 580 ( 1996), "(C)alifornia law does not authorize private prosec u tions ... no
pr ivate
cit izen however aggravated may insti tute criminal proceedings independently. "Id At 588
THE EVJDJ.::NCE IS CLEAR: CITY PROSECUTOR AND THE AUTHOH. OF THE
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'WARRANT \VAS NEVER PROPERLY APPOINTED TO ACT AGAINST THE N ANS1NS
2N ot onl y was the City Prosecu tor not const i tutionally sworn into hi s offi ce. he w<:s not duly
a ppo inted by the City Council to prosecute the case. Under California law, a public prosecutor 111ust
4 be appoi nted by the sovereign to be vested properly wi th authori ty to ini tiate crimi nal proceed i ngs
5 for the benefi t and on beha l f of the People. Schue_/er at 432. This is eviden t both l"roni tht: statttts
I regulati ng the District Attorney and the stat u tes allowing cities to prosecull:: violatio ns or tbei r7
ordi nances. Generally, the County District Attorney is the public prosecutor. See Gov 't Code §8
26500. The District Attorney is "vested with the power to conduct on behalf of the People al l<)
1 0 prosecutions for public offenses within the county." Eubanks, 14 Cal. 4 th al 589. The onic or1 1 District Attorney is an elected position created by the California Consti tu tion. Art icle §1 (b). The
12 2 tran sfer of sovereign power comes from the peop le's election of the District Attorney. The elected
13 D i strict .l\ ttorney "may appoi nt as many deputies as are necessary for the prom pt and f"a i t hl"ul14
d i scharge or tht.: d ut ics or his office." Sec Gov' t Code § 24 l 0.1 . The appointment:; m ust be i n ,,:ri t i 11g1 5
and filed with the county clerk . Gov't Code § 241 02(a).16
17 7 Accord ingly, Ci ty au thorities may prosecute individuals for violation of city ord inances:
18 however, su ch prosecutions must be brough t in the name of the people of the State of Ca I i fornia
19 Gov 't Code § 36900 . Ifa crim i nal prosecution is i ni tiated by a District Attorney for viola t ions o f' a
20 state law, or charges arc filed by a City Prosecutor for vio l ations of the city municipal code, the21
prosecutor i n both of these si tuati ons acts in the name of the state and on beha lf of the people of' the22
state. See Pi ffs v. County of Kern , 17 Cal. 4th 340, 359 (1998) (concl ud i ng tha t the cou nty District
24 Attorney acts on behal f of the state when tra i ning personnel for and when developing pol icy
25 regarding the preparat ion for prosecution and prosecution of criminal viola tions of state la.w); Hill v.
26 City of El Segundo, 33 Fed. Appx. 254,257 (9th Cir. 2002) (holding that a First Amend ment
27 retaliation claim against the City based on the prosecution of munici pa l code violati ons is barred
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beca use "the City was not a party to that prosecution"
) .
Therefore, no mean ingful d ifference exists between a county District Attorney and a "City
Prosecutor" - both are public officials who, when prosecuting public offenses, wi eld the soverei gn
, power of the slate for the benefit of the public. See Schafer , 113 Cal. App. 2d at 432. ln view of thl
fu nctional equi valence betvveen a county District Attorney and a ''City Prosecutor," i t would
therefore be i n keepi ng with the policy of this state, as declared i n i ts statutory provisions, to requi re
the a ppoi ntmen t of city prosecuting author i ties. See Gov't Code § 24 102. I ncredi bly , this Ci ly
Prosecutor was not d i rectly or formally appoi nted by the City Council, the sovereign. Th is \Vas
discovered when Roberta Nansen sought public records of when the City appoi nted Mr. Boyd-
Weatherby and other Jones & Mayer lawyers, and sought records of their oaths. Sec Roberta Nansen
Declaration and Exhi bit "IO".
THE SOUTH PASADENA CITY PROSEClJTOR IS A CONSTITUTION AL PU BLIC
OFFICER WHO MUST TAKE THE PROPER OATH BEFORE COMMINCI N G HIS
DUTIES TO BRING CHARGES AG AINST THE NA NSENS
I n this case, the City Prosecutor d id not compl y wi th Consti tu tiona l req ui remen ts before he
com menced his prosecution of lhe Defendant Nansens . U nder the Cal ifornia Consti tu tion, a pu bl ic
prosecu tor must take the Constitutional Oath of office before entering upon the d u ties of h is oflicc.
The California Consti tu tion provides as follows:
"Members of the Legislature, and all public officers and employees, executive, legisla ti ve,
and judicial, except such inferior officers and employees as may be by law exempted, shall ,
before they enter upon the duties of their respective offices, take and subscribe" an oat h as
quali fication for offtce.
Const . Art. XX, § 3; emphasis added. I n a subsequent section of the Art icle, the Consti tu tion also
MOTION TO DISMISS FOR LACK OF JURISDICTION12
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"[p]ublic officer and employee" shall include "every officer and employee of the State,
i ncl ud ing the University of California, every county, city, city and county . d istrict
and au thori ty, incl ud ing any department, d ivision, bureau , board. com mission,
agency , or instrumentali ty of any of the foregoi ng." Id .
A public prosecutor vested with the povver to represent the People of tbc Sta te of
California in criminal prosecutions is a public officer, see Schaefer, 1 13 Cal. App. 2d at 1.132. and
must take the consti tutional oath of office before "enter[ing] upon the duties of that office. Const.
Art ... XX, § 3; accord Government Code, §§ 24102(c), 1360. It is of no significance whether the
public prosecutor is the Attorney General, a county deputy District Attorney , or a city representati
ve prosecut i ng m unic i pal code violations. Sec Curlin v. State , 61 Cal. App. 377, 386 (I923) ("/\ pu
b l i c office is the right, authority , and du ty created and conferred by law, by which , for a given
period,
either fixed by law or enduri ng at the pleasure of the creati ng power, an ind ivid ual is i nvested wi th
some portion of the sovereign functions of the government to be exercised by hi m for the benef i t o!
· the pu bl ic."); see a lso Hill, 33 f ed . Appx . al 257 (concluding that a "City Prosecu tor" is a State
officer when prosecuting munici pal code violations). In fact, as a publ ic officer in a general law
city, here the City of Sou th Pasadena , a city represen tative who assumes the function o r publ ic
prosecu tor must take and file with the city clerk the consti tu tional oath of office befo re en teri ng u
po n h is
duties. See Gov 't Code §§ 1360, 36507.
When Mr. Boyd-Weatherby fi led his Misdemeanor Complai nt and the Fi rst Amended
Cr i minal Complai nt he had not taken the constitutionally mandated oath of office . See Exhi bi ts, "2"
and "4". Nor did he i nform this court, the Defendants or their counsel, that he had failed Lo do so.
f or some unexplained reason, which clearly shows the City Prosecutor must have known he was not
swor
n
previ
ously
, Mr.
Boyd
-
Weat
herb
y
signe
d the
Oath
on
May
15,
2012
,
mont
hs
after
he
filed
the
MOTION TO DISMISS FORJURISDICTION
13
charges prohibited by Schaefer . 1 13 Cal. App. 2d 428. Defendants contend that this is an egregi ous
and monumen ta l error, and as such, the only proper remedy to correct this is for this Court Lo2
3 d ismiss wi th prejudice for lack of jurisdiction and for the City's failure to advise the Court of these
ti facts. If this were all, there must be a dismissal. But not only was Mr. Boyd-Weatherby unsworn,
5 but the City A ttorney, Richard Adams, was also unsworn at the time these charges were brought.
6See Exhibi t "6". Thus, whatever authority the City may have clai med lo bring tlse charges
7through Mr. Adams, cannot be accomplished . Nor can the search warrant that was brought agai nst
8the Nansens by the City conti nue to stand muster. There cannot be any ju st i fication for the (1i l u rc of
9
1 0 prosecu tors to comply with Consti tutional oaths. Consideri ng that a public prosecu tor is <.1
1 1 representati ve of the People in any criminal proceeding, the oath, like the appointment and Ii l i ng. is
12 2 not perfu nctory or bureaucratic. The Oath requires the prosecutor to "faithfully d ischarge the duties
133
upon vvhich" he enters, and requires hi m to swear to "act with ...impartiality (and) evenhanded ly ..."
[ I
People ex rel. Clancy v. Superior Court, 39 Cal. Jc! 740, 746 (1985). I n fact, Gov. Code 1 3031 5
states "Every person who exercises any function of a public office wi thou t taki ng t he oath or o flicc,1 6
1 7 or wi thou t gi vi ng the requi red bond, is gui l ty of a misdemeanor." Accord i ngl y §1367 stales "No
1 8 compensat ion nor rei mbursement for expenses i ncurred shall be paid to any officer by any publ ic
1 9 agency unless he has taken and subscri bed to the oath or affirmation requi red by this chapter." The
20 Ci ty 's fai l ure to see that thei r agents' properly take the Oath violates the power wi th whi ch t hey a re2 1
charged and the responsibili ties they must assllme.22
CONCLUSIO N
For these reasons, Defendant Nansen moves this Cou rt (1) to d ismiss rem a i ni ng charges wi t h
25 prejud ice :(2) d ismiss the Fi rst Amended Complaint against both Nansens wilh prejud ice; (3)
26 convene a contempt proceeding against the City and i t's attorneys; (4) refer the matter to the
27 appropriate prosecutorial and Bar officials to enforce Government Code § 1303; and (4) order
28
MOTION TO DISMISS FOR LACK OF JURISDICTION14
rei mbu rsement to the Nansens of all legal fees and costs they paid in defense or this case . Sec
..,
3
5
6
7
8
9
J O
I I
" 12
1 3
1 5
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1 7
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People v. i'vfunicipal Court for Ventura Judicial Dist., 27 Cal.App.3d 1 93 at 206 (1972).
DATED: May 1 3, 20 1 3 LAW OFFICES OF MA RVIN L. RUDNICK
By: - ----.-·..- -·· MARVIN L. RUDNICKA ttorney for Defendant MARK NANSEN
MOTION TO DISMISS FOR LACK OF JURISDICTION
DECLARATION OF l OBERTA N AN S EN
2 I, Roberta Na nsen, hereby declares as follows:
3 1. l am over the age of 18 and have person al knowledge as to all facts set forlh herei n and if'
,I cal led as a witness Lo testi fy thereto I could and would competent ly do so.
52 . I a111 the wi te of Defendant MARK NANSEN i n Case IJ 1AH0330 and formrly a ddcndan t
6in this case.
73. Allach ccl as Exhibi t "I", is a tru e and correct copy of the Misdemeanor Complai n t lib!
8
9 agai nst me in t his case by Ci ty Prosecutor , Jamaar Boyd-Weatherby i n J ul y, :w I I.
1 0 4. Attached as Exhibit "2", is a tru e and correct copy of the First Amended Cri mina l Complai nt
1 1 fi led against my husband and I i n thi s case by City Prosecutor, Jamaar Boyd -Weatherby i n Jan uary,
20 12.1 3
5. Attached as Exhi b i t "3'', is a tru e and correct copy of the Tom Zart!'s Declara t i on p revious!y14
submi tted to this Court on March 18, 20 1 3.15
1 6 6. Allach ccl as Ex h i bi t "4", is a true and correct copy of a Cerli fiecl Copy of an Oath or
1 7 . All egiance for .Ta maar Boyd-Wea ther by ela ted May I S, 20 12.
1 8 7. Allachccl as Exhibi t "S", is a tru e and correct copy of an opi nion from the Ora nge Cou n ty
19 Superior Court Appellate Division for "People v. Acosta" I received from the Clerk of that Court on20
April 26, 20 1 3.21
8. Attached as Exhibit "6", is a true and correct copy of a Cert i fied Copy of an Oath or22'>"' /\ l l egiance Richard L. Adams II dated July 17, 2012._.) I
1:
2,1 : 9. Attac hed as Exhibi t "7", is a true and correct copy of a Cer tified Copy of an Oath or
26
21 I
28
A llegiance Michael Do dated August 23, 2012.
l 0. A ltached as Ex hi bi t "8", is a true and correct copy of the "Petit ion to Tra ns k r Fron 1 the
Appella te Department of the Superi or Court", November 24, 2008 and obtained from the Cal i fornia
MOTION TO DISMISS FOR LACK OF JURISDICTION16
2..,
Comt oC Appeals, 4th Appellate District, Di vision 3, Case # 004 1252.
I I . A ttached as Exhibit "9", is a true and correct copy of a letter received by Roberta Nansen from
.) the City Prosecutor, .Jamaar Boyd-Whetherby, on or abou t July 26 . 20 II.
!J 12. Attached as Exhibit "10'', is a true and correct copy of an e-mail Roberta Na nsen recei ved
5 I from Desi ree Jimenez on May l, 2013.6
13. Attached as Exhibit "11'', is a true and correct copy of an e-mail Roberta Nansen recei ved7
from South Pasadena Ci ty Clerk Sally Ki l by on April 24, 2013 .8
14. Duri ng the mon ths o f March, April and May, 2013 I reviewed the South Pasadena m i nutes or
1 0
1 1
1 2
1 3 I
14
1 5
1 6
1 7
1 8
1 9
20
2 1
22
23
211
meetings of Ci ty Council that are available online for the period 2011, 2012, and 2013 th rough Apri l,
201 3 and saw that no Jones & Mayer lawyer was appointed by the City as a City Prosecutor or Ci ty
Attorney.
J 5. That l re viewed the Ci ty of South Pasadena Oath Book which i nc.ludcd oaths Crom the year
2000 to present and I d id not find any oath of City Prosecu tor Jamaar Boyd-Weatherby before May
15, 201 2.
1 6. That Irev iewed the Ci ty of South Pasad ena Oath Book which i ncluded oaths l'rom the year
2000 to present and I did not find any oath of Michae l Do of City Attorney's Ofiice be fore August 23,
2012, and I did not find any Oath for Mr. Do as a city prosecutor as he was described on the
Inspection Re port made by the City of my home .
17. That I reviewed the City or South Pasadena Oat h Book which i ncl uded oa t hs from the yea r
2000 to present and I d id not find any oath of Richard Adams, City Attorney before July J 7, 20 J
2 l declare u nder pena l ty of pe1jury under the laws of the State of California that the
foregoing is true
2 5 i and correct. Executed at Pasadena, California on May 13, 2013.
26 /YJ <-'-rv-ltA-/1 / / ) t::!j / 3 ,.]_ o 1327 -/'l:;;_/J ,tfc<lk
28 ROBERTA NANSEN
MOTION TO DISMI SS FOR LACK OF JURISDICTION
17
PROOF OF SERVICE
(1013a, 20 1 5.5 C.C.P.)
...J
4STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ]] SS.
5
7
8
9
1 0 I
1 1
lam employed i 11 the Cou nty of Los Angeles, State of California.
I am over t he age o r 1 8 and not a party to the wi t hi n action. My business ad d ress i s fl [astColorado Bou levard. Second Floor, Pasadena, Cal i fornia, 91 105.
On May{ 3 , 201 3, I served the followi n g document descri bed as:
NOTICE OF MOTION AN D MOTION TO DISMISS FOR LACK OF JUlUSD!CTION
on the i n terested parties in this action by placi ng a true copy thereof, enclosed i n a sealed envel ope addressed as follows:
12 Jamaar Boyd Weathe rby, Esq .
13 Jones & Mayer777 No rth I-larbor Bou levardFu l lerton, CA 92835
COUNSEL FOR CITY OF SOUTH PASADENA.(BY MAIL, FACSIMIL E AND E-MAIL)
1 5
16
1 7
1 8
1 9
20
2 1
22
23
2·1
_'") -
_ XX_ (BY MAI L) I am "read i ly fam i l iar'' wi th the firm 's practice or collect ion and processi n g correspondence for mai l i ng. Under th at practice, i t woul d be deposi ted wi th the lJ. S. Postal Servi ce on th at same day, wi th postage thereon fully prepaid in Pasadena, Cal i fornia, in the ord i nary cou rse of busi ness. Iam awa re that on motion of the par ty served , service is presumed i nvalid if postal cance llation date or postage meter date is more than one day after date of deposi t for mailing i na f'lidavi t.
_XX _(B Y E-Ma il) (jbw@jones -rnayer.com)
I declare under pena l ty of pe ury under the laws of the State of Cal ifornia that t he above is true a n dcorrect. Executed on May /_:}, 20 l 3at Pasadena , C, ·fornia.
Marvin L. Rudnick
26
27
MOTION TO DISMISS FOR LACK OF JURISDJ CTION18
C
..
,,
SUPERIOR COURT OF CALIFOfu IA
COUNTY OF LOS ANGELES, NORTHEAST DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, M.C. No.:
Plaintiff, Citation No.:
v.
MARK L. NANSEN (DOB:02/14/50) AND ROBERTA NANSEN (DOB:09/06/55),
Defendant.
MISDEMEANOR COMPLA INT
The undersigned is informed and believes that:
i"t":'"
i·!
COUNT 1
On or about JuJ y l, 2011, through and including the present, in the above named judicial district, i n violation of South Pas:-.dena Municipal Code Section 36.640.040(a), a misdemeanor, was committed by Mark L. Nansen and Roberta Nansen who did unlawfull y mai ntai n unpermi tled
&,_ -.•.fl co1structi on of retaining wall at the property known as 2145 Hanscom Drive and the vacan t lot adJUcent to 2145 Hanscom Dnve, parcel number 5308-023-008, South Pasadena, California.
b:.:"-r:a
****'''**COUNT 2
On or abou t July 1, 2011, through and including the present, i n the above named judicial disrrict, in violation of South Pasadena Munici pal Code Section 103.1, a misdemeanor, was commi t ted by Mark L. Nansen and Roberta Nansen who did unlawfully maintai n unpermitted grading at the property known as 2145 Hanscom D1i ve and the vacant J ot·adj acent to 2145 Hanscom Dri ve, parcel number .'.i308-023-008, South Pasadena, Californi a.
**:l:****
COUNT 3
On or abou t July 1, 2011, through and i ncluding the present, in the above named judicial district, in violation of South Pasadena Mu nicipal Code Section 36.640.040(a), a misdemeanor, was commi tted by Mark L. Nansen and Roberta Nansen who did unlawfully maintainunpermitted construction of a swi mming pool at the prope1ty known as 2145 Hanscom Drive and the vacant lot adjacent to 2145 Hanscom Dri ve, parcel number 5308-023-008, South Pasadena, California.
COl'vlPLAINT1
.... - :..·--··--
······- ....- . ....-._ ....... .. - -·- - ·..:·....,,.. .. .:.: :, . ..- :......._ __...:....:.
····- ..;-
·"\'·.:..J
COUNT 4
On or about July 1, 2011, through and including the present, in the above named judicial district, in violation of South Pasadena Municipa l Code Section 9.2. 1, as adopted by Los Angeles County 80-12, a misdemeanor, was conunitted by Mark L. Nansen and Roberta Nansen who did unlawfull y maintain unpermitted elect:Iical at the prope1ty known as 2145 Hanscom Diive andthe vacant lot adjacent to 2145 Hanscom Dri ve, parcel number 5308-023-008, South Pasadena, California.
COUNT S
On or about July l, 2011, through and including the present, in the above named judicial district, in violation of South Pasadena Municipal Code Section 9.3, as adopted by Los Angeles County Plumbi ng Code Section 101.4.1, a misdemeanor, was commi tted by Mark L. Nansen and Roberta Nansen vvho did unlawfully mai ntain unperm.i tted plumbing at the property know n as 2145 Hansconi Drive and the vacant lot adjacent to 2145 Hanscom D1ive, parcel number 5308- 023-008, South Pasadena, California.
****:f:***
COUNT 6
On or about July l, 201 J , through and includi ng the present, in the above named jud icial district , i11 violation of South Pasadena Municipal Code Section 36.640.040(a), a misdemeanor, was commi tted by Mark L. Nansen and Roberta Nansen who did unlawfully mai n tai nunpermi ttcd construction of a canopy at the property known as 2145 Hanscom Dri ve and the vacant lot adjacent to 2145 Hanscom Dri ve, parcel n umber 5308-023-008, South Pasadena, Cali fornia.
********COUNT 7
On or abou t July l, 2011, trough and incl uding the presen t, in the above named judicial district, i n violation of South Pasadena Municipal Code Section 36.640.040(a), a misdemeanor, was committed by Mark L. Nansen and Roberta Nansen who did unlawfully rnai11lainu npermi ttecl construction of a covered patio at the property known as 2145 Hanscom Dri ve and the vacan t lot adjacent to 2145 fanscom Drive, parcel number 5308-023-008 , South Pasadena, California.
COUNT 8
On or about July 1, 2011, through and including the present, in the above named judicial district, i n violation of South Pasadena Municipal Code Section 103.3, a mjsdemeanor, was commi tted by Mark L. Nansen and Roberta Nansen who did unlawfully violate the stop work order between March 23, 2011 and July 1, 2011 at the property known as 2145 Han scom Dri ve and the vacant lot adjacent to 2145 Hanscom Dri vc, parcel number 5308-023-008, Sou th Pasaden a, California.
COMPLAINT2
••• •• • • •.• • t.. ,• .;... ..... : •••• :•.•.• ; • ..,._ _••_...:.-::.--•• -:;••.• ···-- --··- .:. ::-.. •• • ..........·;........ ---- .. ....,. 1· : ·-· - :.. ••• .. . •••• - ·- -·--• ..:--····.. .:. -\ . _ _ .:· · •• • - ••
NOTICE TO DEFENDANT AND DEFENDANT'S ATTORNEY
Pursuant to Penal Code Sections 1054.5.(b), the People are hereby informally requesting thatdefense counsel provide discovery to the People as requi red by Penal Code Section 1054.3.
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT AND THAT THIS COMPLAINT CONSISTS OF 8 COUNT(S) .
Executed at South Pasadena, California on-----------
Declarant and ComplainantMarlon Ramirez, Communi ty Improvemen t Coordinator
COiv1PLAINT3
..·... ··.. -· ... · . ........ : . . .'
I
SlJPEH.lOR COURT OF CAUFORNTA
COlJ T\' OF LOS ANC i Ff .ES, t\ORTHEAST DISTRICT
Pl <Wl.E OF THE STATL OF CA LffOR NIA, 1\1.l'. l\o.:
Pia i nti ff. Ci t a L i on No.:
.-\ iVI El\ l)L D;\ USDJ:ivl F1\ NO R CO\·f PL:\ l NT
!ARK I.. ..\NSl:N IDOB:02.:1 4:)0) .-\ NDROU LRTA NA?\S U\ (DOJ3:(J9.'06/:i5.1.
l)cfr:nc.lant .
Thi! u nc..krsign..:d is i nl( >rn1ed tl nd b1.:l i L'\ eS t lrnt :
COUT I
On or ;1bou1 .July I. 201 I. th rough and im:luding the present, in t he above n:imcd judicial district , in viola tion of South Pasadenn Municipal Code Section 36.640.0<IO(a), u misd emea nor, w<is com milt d by !vlmk L. Na ns..:n and Roberta Nansen who d id unlawfully mni nlai n unp..:rrni t Ledconstruction or retai ni ng wal ls al t he properly k nO\\'ll as 21 4.5 Hunscom [)rive nnd the \ ';1crn1t 101adj;1crn1 10 I i.15 l·la11s..:om [ · ' ......,i_,,,. .:; n -0?.3-008, Snuih P<l;.;ad..:na, Ca l ifomi n.
On or 1.1bou1 Jul · 1 , district, i11 viola t i on of' Soul c11mmill(:d h·\brk L !'\an grndi n ;11 t he prupcn k noI bnscom Dri ve. pared 11u r
J- --
ibow nwncd jud ici: l isd ni...:anor, \\·as1in1ai n 1111pcr111i11i;:d djil(:(:Jl l IlJ 11 -)5
distri<.:l. in ,·jolati LIJI or SL)\1£11 l ';"!S(!Ul "" ..........,. . li.lt 1). a m i:;krn..:;:1 ,:11'.
,,·as com111i11ed by [\fork I .. Na nsen ond Rnht:na Na nsen who d i<l unlaw rull v mai n tai nunpermi ttl'.'d i.:u11:- 1rnc1inn of a S\\·i m mi ng pool at the propt>rty k nown as 2 1 ..J..5 Hanscom Ori v...:
andLh..: vacant k> t adjacen t 10 1..J.5 I !ansc.:om Dri \·c. parce l num ber 5308-023-008. South Pasadc1rn,
CO\ll'LA lf\:TI
COUNT -l
On or abrn11 July l . O 1 1 . through and i ncl ud in g t he present. i n t he :1b1.'W 11nmed j u d icialcl istricl. i n v iolalilrn 1.11· South 1':1·aden:1 \fo1 1 i ci pa l L"odc Sec tion <). . I. as :1dt\pt;.d hv 1 .n ,\11:.'.C k' Coun t :-iO- : - a 1ni::.d emea n1 lJ'. \\';1s commi !led by :\'lar k L. J\a n sen and Robena >'.a;1:;cn \\ h..)··;.1 i,! un!av:r·ull y m;1intain unperm i tti.::J elei:t rical ut the property k nu\\'11 as 11-15 Hans<.:(' 111 Dri h·;md1h .:: Yacan t 101 ad.i;1cenl Lo 2 145 1-Janscom Drive, parcel number 5308-023-008, Sout h Jlasmkn a,Cali fornia.
COUNT S
< >11 nr <tbutll .J u l; I . 2(11 I . thruugh and i11cludi 11g the presen t. i n the :il)o\·c 11;11:it•d .iudi1.:i 1l
di.aricl, i n vio l 1til.lll l1C Sout li l\1sadena Municipal Cud e Sect i on 9.3. ls adop ted by Los .-\11;_1e k:County Plumbing Code Sec tion I0 1 .4.1 , a misck111eanor, was cor111nictcd by P.·lar k r... N::msc n and Rtl bert:l Nansen who did unlawru l l y mai ntain unpermi tteu p l um bi ng at t h properly k n1l\rn as21:15 Ilanscom Dri ve and th1..' \':lcanl lot ndjaccnl to 21-15 Ilanscom Dri ve, parcel number 5308-023-008. S(lll t h l\isadcn a, C:il ir1.1rn i t
COUNT 6
011 c.1r abou t J uly I , 201 1 , through and including lhc present, i n t he a bove 1Hun ed judicial distr ict, i n violution of Somh Pa::;adena Municipal Code Sect ion 36.640.0IO(a), a misdemeanor, was con11niwd by t'-.fark T.. N:rnscn and R obctta Nansen who did unlawfully mai ntai nU11pn11 1i t11..·d co11slruct iou of a i.::mopy a l the propert y known as 2 1 45 Han::;corn Dri vc and 1hc,·acanl l1> l adj acent to 2 1 45 Ilanscom Drive, parcel n u m ber 5308-023 -008. Sou th P;isacfon a,CniilC1rni:1.
COUNT 7
On or ah1.Hll Ju l )' I , O 1 1 , 1h rough and i nclud i ng the. present. i n the ab<.n·c m1111ecl jud icinld istrict . i11 vic>l ali1111 pf"Sou1h J><1sadem1iv!unit ipal Cc1ck Sl'cliun 36.(i:IO.O I O(a), a misdcrncunor,\• ;1s co11H ni t 1t:d by 1'. hirk I.. 0." i111scn and l{oh(,;rw N u11!'1.·. n ,·ho d id unlawfully ma i nt u i nu npi.:nni11L·d <.:1>llSL rt1c t i o11 o f' ;1 ..:\J \·\:rL·d p:11io ill th property k1h> W11 a!' 2!'-15 l h111sco111 l)ri,· a nd the vacant lot a<ljm:enr 10 21 -4 5 Hanscom Drive!, parccl numher 5308-023-00S. South Pa:-;ackn:l. Cal ifornia.
COUNT S
()11 or a bout .l n l y I , 20 I I . through <i ml including t he presen t , in t he above n:1111ed j udic ial dist rit:i,in \·i0latiu11 ol" Soulh l'asack 11a l\ fun it: ipal Cock St::cl i(ln I03.3. a 111is<lcmeanor. \\ ts
CO\lf'l..AINT')
cornmi t kd by i\ l nrk L. Nansen who d id unlawfully ,·iolate lhe stop work order between March23. 20 I I a nd .lul y I . .20 l l at the property k111l\\ n as 21 -+5 Hanscom Dri\·c and 1h vacant Joi ad_iacc-111 to 21 -15 1·1:111:-:com Ori\·c. parcel nurni)1:r 5308-023-008. South Pnsadc:n . C l ifo111i:1.
NOTICE TO DJTEND/\l\T AND DEFENDANTS ArrORNEY
l'u r:>uan t lo P n:tl Codi.' Sections l 054.5.(b), 1hc- Pcuple arc hereby inl"lmnally req ucstin tha t<ld nsc cl'Llll:--1.: I pro\·idc d is;:;1.1v1.:ry lo !he P1:opk as requirl'.:d by Penal Cock Section I 05·1 .3.
I DECL:\ RI : l.:\DEIZ Pi:::--l:\ I .TY OF PER.J lif(Y T lIA!" THF. FO"J n:GOl f\Ci IS T l\l. '. .\ \ DCOR IH·:<.T :\ ND Tl-.IXJ" TlJIS COi\l l' L..-\ 1>:.l CO:-lS ISTS 01: :< COi.J V! lS).
[-\:t:ctt11.:d al Sou t h P•1saJena, Cal ifornia on
67,.;...-
--/
Dccl'._!.!:SlHhrrrO Lum7/'fffaar Boyd-Weatherby. Ci ty P & itor
·----------------···
CUMl'l.:\INT
3
, J
·
I,
-..,
ijI
I
I
IIIi11
DECLARATIO N OF THOMAS A. ZARTL, AIA
2
J I.Thomas A . Zart !, AIA, hereby declares as follows:Ii1:
4I' I . I am over the age of 18 and have personal knowledge as to all facts set forth herei n and [f
s iiI called as a wi tnesslo lc!>li fy thereto Icould anc.I would competently do so.
6Iam a li censed:'\1.:hi tccl i n the State ol' Cali fomia and the Senior Buildi ng I nspector :11 thc
7City o f Burba nk and have been retai ned by the Law Ofliccs of Marvi n L. Rud nick to pmviJl:
8buildi ng permi t. architectural and engi neeri ng advice and recommendations i n the Ca!>c
9
10 Iii /\1103330. People v. MARK N ANSEN . M y resume is attached as Exhi bit "A" to my
1 1 lkdarmio11.
1 2 3. On December 4, 20 12 I visi ted 2 I 45 Hanscom Dri ve. South Pasadena, Cali forn ia a nd mtt
1 3 wi th M r. Nansen and his counsel for the purpose of <letenni ning the requi rements. i f any, of1 .1 I.
11 pcrn i ts needed t) resol ve a d ispu te over l:er1ai11 construct ion on a side lot and back yard t o Mr.l) 11
Ii
16
1 7
1 8 I19.,
20
Ii21
22
N a n sen 's rcsith.:m.:c. At t ha t t i me I reviewed t hc July I . 20 1 I l nspcct i o11 R eport pc p;:n.:J »
South Pasadena Bui l di ng a nd Safety o ffic ials, Crai g Mclich er and Ma rlon Rami rez. On that d
ate I also inspected the property t o detem1inc what, i f any, construecion was bei ng mai nta ined on
t he N ansen property thai may need build ing permi ts. While there. J observed the hillside of" t hc
Na nscn n:sidem:c with retai ni ng walls bui l t across contour li nes: a small spa t hat was not
connected to any water sou rce, sewer or other receptacle; a canopy coveri ng the pool ; an awni ng
,1
>
2,1 fIi
cover i ng a ex ter ior bar an<l a bar sink that was not connected to <m y water soun:c. sewer or other
rcn:ptack: and an electrical ou t let for the spa and other elect rical ou tlets for exterior use:.or December 20 I2 Imet wi th John Mayer, Senior Plan ner. South Pasa(kna
2 5 4 . A t the end
26 Planni ng and Buildi ng Department to confer wi th Mr. Mayer over the letter be sent M r. Na nscn 's11
27 counsel regard ing City requirements to comply with building codes.11!I
28 5. Duri ng that conversation Mr. Mayer prov ided names of several soil engi neers that had1: DECLARATION OF THOMAS A. ZARTL. A J A
2
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worked i n the Ci ty that could eval uate the stabili ty of the soi l.
6. I con tacted t wo or the soi l engi neers. Both li rms visi ted the site and "vhcn they b:cam1.:
a ware that there was legal action between the City and Mr. Nansen decl i ned to submit a proposal.
7. Because two of the engineers were not interested in conducting these tests, Mr. Na nsi.::n
retai ned LY N !Engi nci.::ri ng, lnc., of R osemead, Cal ifornia. a ci vil engi neering com punv. to hav
e the necessary soil test i ng perfonncd <md report prepared concerning the sw bi l i ty of t h e soi l 011
the property. Tha t work is now scheduled by Zhamg Yuan Ni. P.E. for later this month or April.
'.W I:l. ! ngi necr Ni has al read y taken some soi l sam ples for testing.
X . On March 6. 201 3 I agai n visi ted 2 I 45 Hanscom Dri ve. Sout h Pasadena. Cal i!"1miia
and met wi t h M r. Nansen and his counsel for the purpose of l"urther determi ni ng the req ui
remenis. ir any.o r permi ts needed lo resol ve the pend ing d ispute.
9. /\s a resul t or my i nspect ion and review of this matter, I ha ve ddermi ncd the followi ng :
Count One: To act:om modate the Ci ty's interpretat ion or i ts own Code. I rccomnicmk d
t hat soil tcsii ng be conducted "t o evaluate the stabil i ty of" the soil on the propert y" and determi ne
whei hc .- the hillside is stable to hold the retaini ng walls and other iicms placed on the hil lside.
The hillside appears to be stable at 1his ti me.
Count Two: That a grad i ng permi t may be necessary because there a ppea rs Lo he more
20
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2·1
25
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27
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28 lI
than 50 cubic yards of soi I t ha! has been removed after the i n tial grad ing for t he residence when
i t \\ as bu ill i n 1 986. I t is i rnpossi blt.: to measure t he tru e compl iance amount.
Coun t Three: Thal I agree that City Inspector Craig Mclichcr's measurements of the
portable spa and as descri bed in the Misdemeanor Complaint is g· by 14'6" which !otals 1 16
square feet. Pursuant to South Pasadena Municipal Code § 36.210.040 [2013], this is withi n the
al lowable size of less than 120 square feet. at the ti me the spa was i nstalled and is stil l i n
compliance today.
Count Four. As a result of my i nspection of the electrical lines, I recommended that Ar.DECLARATION OF THOMAS A. ZARTL. /\ IA
...,
Nansen obtain a electrical permi t and wai ver to al low Ci ty I nspectors on the property to i nsp:::cl
2
3
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the electrical work for code compliance. I t is my undcrstm1di ng that Roberta N ansen applied fur
this permi t on March 8, 201 3 and City issued said pennit. Sec Ex hi bit "A''.
Count Five: That my inspection for pl um bing , as described i n Count 6, detcrmi nd
that i t is nu t connected IO any water source, sewer or n.:ccptack:, th us. there is no r l um b :ng. a11<.i
is therefore is not subject to a permi t. If pl umbi ng I i nstalled and con necteJ i n the fu ture v1r.
Nansen will obtai n the necessary permi t.
Count Six: Thal the patio c0ver roof was measured from the roofs cave line, not tloor
area wi thi n the su pporti ng structure below. Structures arc normal l y measu red at th floor l i ne
tn determi ne the area. To assure compliance I have requested and M r. Nansen has agrec.:d to
relocate two posts and support i ng beams lo reduce the floor area of the supporti ng st ructure.
A.s such t he pa t io cover will be less than 120 sq. ft. of floor area, wel l wi thi n the requ i remen t
under
t he Code .
Count Seven: That 1 ha ve req uested and M r. Nansen has agreed 10 remove t wo cln t h
shade panel s tied to the frame by rope !'rorn tht: shack structure and as a result the structu re wi l l
be less
t han 250 sq. !ect i n size, and therefore wi thin the Code req ui rements thereb y requi ri n g 110 pc.:nni t.
Count Eigh t: This count does not apply to my analysis.
Fi nally, my rev iew of' this matter causes me concern, since although Ci t ies bavc t he ri ght to
con trol construction i n their hi llsides, no permanent structure, requi ring a permi t , was bu il t by t
he Nan sen 's on thei r h i llside and since the hillsick appears to be stable, there appears to be no
rational basis for the cri minal sanctions sought.
THOMAS
.!
_
21
2
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11
5
6
7
8
9
10
1 1
1 2
1 3
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1 5
16
1 7
1 8
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20 "
li:•il
I declare under penal ty of perjury under the laws of the Stale..: o f Cal ifomja that the
foregoing is true and correct. Executed at Pasadena, California on March _j]_. 2013i
.'1
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'11 0, AIA
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·26 'li
27 i.!(•
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11 DECLARATION OF THOMAS A. ZARTL. Al/\5
b . I
7
_s
CITY OF SOUTH PASADENA
OATH OF ALLEGIANCE
, do solemnlyswear (or affirm)that I will support and def end the Constitution of the United States and the
Constitution of the State of Calif ornia against all enemies, foreign and
domestic; thatIwill bear true f aith and allegiance to the Constitution of the
United States and the Constitution of the State of California; that I take this
obligation freely, without mental reservation or purpose of evasion; and that I
will well and f aithf ully discharge the duties upon which I am about to enter.
CEfUIFHW OOPV"THIS IS . RUE AND cr:m r-n:o<:WY Of:Wt:
IJO'C1JN?ON FIU: lid THE OFFlf.'.lA!..! -C09ID. \'IF
THE CIYY OF SO!.:THPMA!)ENA. I
';l- 4f.£j-i.3 !' · !f o.se CU/•11\ls certification appBars In blu/ v ilhan 01inlnal LL f'f'
signature a.nd bears thae,ealat the City of Soutl1 'skd'300. Commi ion, Title or Department
SUBSCRIBED and SWORN to before me this j _ >
y of ,_
aSUPEIUOR COURT OF CALIFORIHA
ir:.ti L. Ii- :l.#
SUPC:RIOR COURT OF CALIFORNli>.COUNTY OF ORANGE
CENTRAL JUSTICE CENTERCOUNTY OF ORANGE, CENTRAL JUSTICE
CENTERAPPELLATE DIVISION
CEC 17 2008
/LAN Ct1RL " of !ha Cour!
People of the State of Californ ia 30-2008-00041207
av G GALON
Plaint iff Trial Court Case No. 06HM04320
Vs
AcostaDefendan t
REMITTITUR
1, ALAN CARLSON, Executive Officer and Clerk of the Superior Court, County of Orange, cert ify the attached is a true and correct copy of the original Judgment entered in the above enti tled cause on October 23, 2008 and the J ud gment has now become fi nal.
No costs arc awarded i n this action.
Witness my hand and seal of the Court this December 1 7. 2008.
ALAN CARLSON, Clerk of the Court
l3y: (.,.,-:
:.:.i '
f'.I.
, 0._ ...:W;
"-.,...---· _
REMITTITUR
G.Galon, · eptity Clerk
OF ))
CASE NO. 30-2008-000412 07
)))
JUDGMENT ON APPEAL
) SUPERIOR COURT)))
of ORANGE COUNTY
HARBOR JUSTICE CENTER})) HON . KELLY MACEACHERN
41
2
3 APPELLATE DIVISION
FILEDSUPERIOR COURT OF
CAUFORNl.O.COUN1Y OF ORANGE
CENTRAL JUSTICE CENTER
OCT 23 2008ALAN CARLSON.Clerk of \he C01Jn
SUPERIOR COURT OF CALIFORNIA :--?BY H.POTTER
sli
6111
819
10!11
12
PEOPLE OF THE STATE CALIFORNIA,
Plaintiff and Appellant,
vs.
BENITO
ACOSTA,
Defendant and Respondent.
COUNTY OF ORANGE
) JUDGE13
14 The trial court in this case granted respondent's motion for
15 dismissal of the misdemeanor charges for violation of the Costa
16 Mesa Municipal Code after the "city prosecutor" (Danny Peelman, a
17 member of the private law firm of Jone & Mayer) admitted he had not
18 taken the constitutionally mandated oath of office . (Cai. Const .,
19 Art. XX, § 3.) For the reasons hereafter stated, we affirm .
20. The dismissal order is appealable under Penal Code §
21 1466(1)(b), inasmuch as respondent's motion was predicated upon the
22 trial court 's lack of jurisdiction due to an absence of
2 3 prosecutorial authority. (See People v . Ramirez (1972) 27
241 Cal.App .3d 660, 669; O r e g o n v . Kennedy (1982) 456 U .S. 667, 676 n.
;!
2 5 11
1·
6 ·) is elementary that legal jeopardy does not arise where the
2 6 court has no jurisdiction." (Anger v . Municipal Court of San
27 Franci s co (1965) 237 Cal.App .2d 69, 71; see also People v. Hamberg
28/[ (1890 ) 84 Cal. 4 68 , 472; Serfass v. United States (1975) 420 u .s .
1 377, 391.)
2 The public records relied upon by appellant, including a 200 4
3! contract for performance of City Attorney legal services by Jones &
41 Mayer on behalf of the City of Costa Mesa, are judicially
5, noticeable under Evidence Code §§ 452 (h) and 4 5 9 . (See Dunn-Edwards
6 Corp . v . South Coast Air Quality Management Dist. (1993) 19
7 Cal.App.4th 536 , 543 n . 3 .) Granting appellant's request for
8 judicial notice renders moot respondent 's motion to strike.
9 California law requires a criminal prosecution to be brought
101 in the name of the People by a public officer, such as a city
11 attorney . (Government Code §§ lOO(b) , 36900(a); PenalCode §
12 69l(d) , defining "prosecuting attorney" as an attorney "designated
13 by title, having by law the right or duty to
141prosecute"; Fleming v . Hance (1908) 153 Cal. 162, 167; People
ex
15 rel. Clancy v . Superior Court (1985) 39 Cal.3d 740, 746, 749 and n.
16 3 ; People ex rel. Chapman v . Rapsey (1940) 16 Cal.2d 63.6, 6 39 ;
17 People v . Eubanks (1996) 14 Cal .4th 580, 588; Dix v. Superior Court
18 (1991) 53 Cal .3d 442, 451.)
19
20
21
22 '
2 31I
2 4 '
251I
2 6
27
281
A public office ispublitrust created ininteafor the beofpeople. Publofficaobld, vofidie theresilities with intafi. Sithe officersgoverrunentalbody aretrusteesthe pweal, they
may not exploit or prostitute their official position for their private benefits.
(Terry v. Bender (1956) 143 Cal.App.2d 198, 206.) "Thus, the
'duty' to prosecute a municipal ordinance violation in a general
law city may properly befall its city attorney because he is an
'officer of Ithe city qualified' to appear in court for the purpose. H /
I
i!'I (Montgomery v. Superior Court of Solano County (1975) 46
Cal.App.3d
2 1 657,668, quoting People ex rel. Chapman
v .Rapsey, supr a , 16
31 Cal.2d at 643.)
41 As appellant concedes,there is no public office of "city
5! prosecutor" in the City of Costa Mesa, and attorney Peelman is notI6' a
public officer .
Government Code § 36900(a) authorizes the
7 prosecution of city ordinance violations "by city authorities," but
8 neither attorney Peelman nor his law firm is a city authority as
9 that term is corranonly understood. Although it has been held that
10 Government Code §§ 37103 and 53060 authorize a city's "legislative
11 body" to contract for prosecutorial services by a "special
12 counsel 1 11 no such office was created by the 2004 contract.
(Cf.
13 Montgomery v . Superior Court of Solano County, supra, 46 Cal .App.3d
14 at 668-669; People e x rel. Cla n c y v. S u pe r ior C o urt, supra, 39
15 Cal.3d at 750 n. 5.) The contract designates two other members of
16 the firm of Jones & Mayer to serve as "contract city attorney" and
17 "contract assistant city attorney," but does not designate anyone
18 else to exercise the powers and perform the duties of a public
19 prosecutorial office. (See Pacif i c F i n a n ce Corp . v. L y n wood (1931)
20 114 Cal.App . 509, 514-515.) "Although an office is •an employment, 1
21 it does not follow that every employment is an office. A man may
I
221certainly be employed under a contract, express or implied, to
do2
3I·
an act or perform a service without becoming
an officer ." (United
2 4 States v. Maurice (1823) 2 Brock . 96 / 103, quoted in Patton v.
25· Board of Health (1899) 127 Cal. 388, 395.) Insofar as the 2004
126 contract delegated the general powers and duties of the Costa Mesa
27, City Attorney to a private law firm or its members, those powers
I28/ and duties did not include the authority to confer a public office
2
1
1
11 upon attorney Peelman - - authority to appoint subordinate officersl or employees has been statutorily reserved to the city council.3! (Government Code §
36505; see Montgomery v . Superior Court of
41 Sola n o County, supra, 46 Cal .3d at 668.) Contrary to appellant's'
s! suggestion, no city ordinance authorizes a "contract" city officer6 to delegate the powers and duties of his or her office to another
71 person. (Cf . Costa Mesa Municipal Code § 1-9, authorizing a city
a officer to delegate a power or duty only where the power or duty is
9 conferred upon the officer "by this Code or any other ordinance11
;1
10 Costa Mesa Municipal Code § 2-116, authorizing the city manager to
11 appoint officers and employees.)
12 Prosecutorial acts may be valid under the de facto officer
13 rule, notwithstanding a failure to take the constitutional oath,
14 where the acts were performed under color of an authorized
151 appointment to office, but "there can be no officer de facto where
I16 no officer de jure is provided by law." (Oakland Paving Co.
v.
17 Donovan (1912) 19 Cal.App. 488, 493-494; cf. People v. Kempley
18 (1928) 205 Cal. 441, 445.) Faced in the trial court with the
19 failure of attorney Peelman to have taken the required oath,
20 appellant did not show the existence of a de jure office or
21 otherwise establish his de facto authority. The trial court
22123
properly ruled that the prosecution of respondent was
performed by attorney Peelman without the requisite official
authority, and
24 dismissal was warranted because jurisdiction was lacking.
(See 25/ People v. Municipal Court for Ventura Judicial Dist.
(Bishop) ,
26 supra, 27 Cal.App .3d at 206 .)
27 ; Il l
2s11 11I
!
l
1121l
'
The requests for judicial notice are granted .
Respondent's motion to strike is denied as moot. The order is
affirmed.
3
4 '
5
6 GREGG L. PRICKETT, Acting Presiding Judge
9 Judge
Judge13
14
15
16
17
18
19
20
21
22
23
2 4
25
2 612 7 1
28 1i
U
CITY OF SOUTH PASADENA
OATH OF ALLEGIANCE
I, _... f_\G itA'W
\,, . _ . _IW.A.--m'-
· 1[ , do solernnlyswear (or affinn)
that I will support and def end the Constitution of the United States and
the Constitution of the State of California against all enemies, foreign
and domestic; that I will bear true f aith and allegiance to the Constitution
of the
United States and the Constitution of the State of Calif ornia; that I take this
obligation freely, without mental reservation or purpose of evasion; and that
I will well and f aithf ully discharge the duties upon which I am about to
enter.
CERTIFIED COPY'11i!S IS A TRUE ANO CERTIFIEDC<WV OF
nu:DOCIJilOO ON FILE IN THE OFFICL RECORDS OF·
TIIE CITY' OF SOUTH PASl\OE!'iy
Ci' ;i fl -.2L:..o•Y Vl<llk U Daro
This certiffcalion iippears Inbluo !nk ¥tiUl an 0iig!Jl8l slgno.tura ond bears tho s-0al of lha City cf Sculh
Pooadsna.
Signature
SUBSCRIBED and SWORN to before me this _/_?_ day of ;JI ; / y
C I'l'Y OF SOUTH PASADENA
OATH OF AI J .EGIANCE
I, M _i_ch_a_e_l_Q_._n_o_ _ ,do
solemnlyswear (or affirm) that I will support and def end the
Constitution of the United States and the Constitution of the State of
California against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the Constitution of the
United States and the Constitution of the State of California; that I take this
obligation freely, without mental reservation or purpose of vasion;and that I
will well and faithfully discharge the duties upon which I am about to enter.
(vSi
City Attorney 1 s Office
Commission, Title or Department
SUBSCRIBED and SWORN to before me th.is 23rd dayofA_u_g_u_s_t_,_2_0_12-
By: --.>-..- .:t·y d""e"'r'i<:'..-,-,
o -or_o_ther__,,_n_au_th_o_riz_ed to_a_dw.oiner oa..ths) --------0
7
-
/Case No.
COURT OF APPEAL·4TH OIST.OlV 3;<<ecel\J
NOV 2 It 2008
Deputy Clerk -+-< ---
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA FOURTH APPELLATE DISTRJCT
DIVISION THREE
G.o g
t"l v/-)
ih. )
PEOPLE OF THE STATE OF 4th Civil No.
. l.,.,., p,,P ·"'*"'
CALIFORNIA, Appellate Dept. No. 30-2008 00041207I
Plaintiff/Appellant, [OCSC Case No. 06HM04320 ]
V.
BENITO ACOSTA,
Defendant/Respondent;
PETITION FOR TRANSFER FROM THE APPELLATE DEPART.fMENTOF THE SUPERIOR COURT :
ON APPEAL FROM THE SUPERIOR COURT, COUNTY OF ORANGE, DEPT. H-3 HONORABLE KELLY W. MacEACHERN, JUDGE
0:;aG)
z)>r-
MICHAEL R. CAPIZZI, ESQ., SBN 35864 JONES & MAYER3777 North Harbor Boulevard Fullerton, CA 92835(714) 446- 1400
Attorney for Plaintiff/Appellant, PEOPLE OF THE STATE OF CALIFORNIA
OR l G l N AL
TABLE OF CONTENTS
PETITION FOR TRANSFER................................................................................1
I. STATEMENT OF THE ISSUES........................................................1
II. BRIEF STATEMENT OF FACTS..............................................................3
III. STATEMENT OF CASE............................................................................4
IV. THJS PETITION IS TIMELY FILED AND MAY PROPERLY BE ISSUED, SINCE THERE ARE IMPORTAN T ISSUES OF LAW DECIDED IN THIS MATTER.......................................................................5
A. The Judgment Contradicts Supreme Court Authorities and Improperly Diminishes Generally Recognized Powers of Municipalities.......................................................................................6
1. People ex rel. Clancy v. Superior Court.............................62. People ex rel. Chapman v. Rapsey....................................93. Fleming v. Hance," Dix v. Superior Court...........................13
C. The Judgment Ignores the Statutory Authority of Cities to Define Prosecutorial Duties and to Contract for Such Services................14
1. Penal Code Section 691:Definition of ProsecutingAtto1ney.............................................................................14
2. Government Code Sections 37103 and 53060: Contracts for Special Services....................................................................16
3. Government Code Section 36505: Appointment of Subordinate Officers and Employees................................19
4. Government Code Section 1190, et seq.: Deputies...........225. City Municipal Code Sections..........................................24
D. The Actions of the City's Prosecutor are Entitled to Full Protection from Challenge in this Matter By the De Fact Officer Doctrine.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ·. . . . . . . . ·. . . . . . . 28
E. The Authority of the City's Prosecutor to Act in this Matter is Not Properly Challenged in this Proceedin g, Which is Only Collateralto the Issue of Such Authority...........................................................33
V. CONCLUSIO N........................................................................................35
TABLE OF AUTHORIT
IES FEDERAL CASES
Ryder v. United States (1995) 515 U.S. 177 [132 L. Ed. 2d 136, 142, 115S. Ct. 2031)................................................................................................................... 30
United States v . Nussbaum, 306 F. Supp. 66 (N. D. Cal. 1969)......................................34
STATE CASES
Anderson v . Lewis, 29 Cal. App. 24 (1915)....................................................................23
Clark v. Manhattan Beach, 175 Cal. 637 (1917)...............................................................29
County of Los Angeles v. State Water Resources Control Board, 143 Cal.App. 4th 985 (2006)......................................................................................................34
Cozzolino v. Fontana, 136 Cal. App. 2d 608 (1955)........................................................20
In re Danford, 157 Cal. 425 (1910) ........................................... ......................... ....... 29, 34
Dix v. Superior Court, 53 C.al. 3d 442 (1991).....................................................................13
Ensher. Alezander & Barsoom . Inc. v. Ensher, 238 Cal. App. 2d 250 (1965)................29
Fair Po litical Practices Committee v. Californians Against Corruption, 109Cal. App. 4th 269 (2003)..............................................................................................34
Fleming v. Hance, 153 Cal. 162 (1908).............................................................................13
Garrison v. McGowan, 48 Cal. 592 (1874).......................................................................29
In re Redevel opment Plan for Bunker Hill (1964) 61 Cal. 2d 21 [37 Cal.Rptr. 74, 389 P.2d 538)................................................................................................30
Lesem v. Getty, , 23 Cal. App. 2d 57 (1937)..............................................................28
Marine Forests Society v. California Coastal Com., supra, 36 Cal. 4th atp. 56 .............................................................................. ....................................... 30, 31
Miller v. Filter, 150 Cal. App. 4th 652 (2007) .................................................... 30, 32, 33
ii
Montgomerv v. Superior Court of Solano County, 46 Cal. App. 3d 657 (1975) 15, 17, 18
Nightlife Partners v. City of Beverly Hills, 114 Cal. App. 4th 810 (2003)........................27
People ex rel. Chapman v. Raps ey, 16 Cal. 2d 636 (1940) .............................. 6, 9, 10, 34
People ex rel. Clancy v. Superior Court of Riversid e County, 39 Cal. 3d 740(1985) ............................................................................................................ 6, 7, 8, 21
People v. Cradlebaugh, 24 Cal. App. 489 (1914) .............................................. 29, 30, 32
People v. Kempley, 205 Cal. 441 (1928)...........................................................................31
People v. Mellon, 40 Cal. 648 (1871)................................................................................29
People v. Robe 1 ts, 6 Cal. 214 (1856).................................................................................29
People v . Sassovich, 29 Cal. 480 (1866)...........................................................................34
People v. Sehorn, 116 Cal. 503 [48 Pac. 495]...................................................................32
People v. Turner, 85 Cal. 432 (1890) ................................................. ....................... 29, 31
Quintero v . City of Santa Ana, 108 Cal. App. 4th 81 (2003)...........................................27
I n re Redevelopment Plan for Bunker Hill Urban Renewal Pro ject lB, 61Cal. 2d 21 (1964)..........................................................................................................34
Sloane v. Hammond, 81 Cal. App. 590 (1927)..................................................................14
Staheli v. Redondo Beach, 131 Cal. App. 71 (1933).........................................................20
Susanville v. Long, 144 Cal. 362 (1904)...........................................................................33
STATE STATUTES
California Constitution, art. V, § 13..................................................................................13
California Constitution art. XI, § l(b)................................................................................11
California Goverrunent Code § 1194.................................................................................24
California Goverrunent Code § 41805 (a)(l).....................................................................12
lll
California Government Code § 1190................................................................................22
California Government Code § 1193................................................................................22
California Government Code § 1194.................................................................................22
California Government Code § 26500 ...................................................................... 11, 13
California Government Code § 34856 .................................................... .................. 21, 26
California Government Code § 36501..............................................................................11
California Government Code § 36505...............................................................................11
California Government Code §36900 (a)........................................................................11
California Government Code, Title 4 (Gov't. of Cities).........................................................10
California Penal Code §149...............................................................................................30
OTHER REFERENCES
20 Cal. Op. Atty. Gen. 234, 236 (1952)............................................................................14
29 Cal. Op. Atty. Gen. 362, 364 (1956)............................................................................18
Cal. Rules Ct., Rule 8.1008 (a)............................................................................................5
Cal. Rules of Ct., Rule 8.1002.............................................................................................5
Costa Mesa Municipal Code § 1-9................................................................................................24
Costa Mesa Municipal Code § 2-114................................................................................24
lV
TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE
JUSTICES OF THE CALIFORNIA COURT OF APPEAL:
PETITION FOR TRANSFER
Petitioner, the City of Costa Mesa, respectfully submits the following
petition for this Court to transfer the above-referenced matter from the
Appellate Division of the Superior Court of California, in and for the
County of Orange, to this Court, based on the fact that this Court> s
consideration of this matter is required as to important questions of law:
I. STATEMENT OF THE
I SSUES . This matter involves the following
issues:
1. Whether a city prosecutor is a public officer, required to take
an oath of office;
2. Whether a city legislative body may contract with a private
attorney as special counsel to conduct prosecutions of a city's municipal
code violations;
3. Whether a city attorney, charged with prosecutoria l duties
by contract, may delegate such responsibilities;
4. Whether, despite any technical failure in appointment of a city
prosecutor or in satisfying an applicable oath requirement, a de facto
officer,s actions are valid; and
5. Whether any of the above issues may properly be collaterally
challenged in a criminal proceeding which does not have as its purpose the
determination of the validity of a city prosecutor's authority .
These issues are of critical importance not only to the criminal
prosecution underlying the matter before the Court, but also every other
criminal prosecution, past and present, conducted by Appellant's
prosecutor, as well critical to the authority of city attorneys and city
prosecutors throughout the state to act by contract in many other cities with
contract city attorneys and/or contract city prosecutors. Out of 34 cities in
Orange County, more than eighty-five percent, or 29, have contract city
attorneys. 1 Within only a small piece of this Court's jurisdiction alone,
1 This Court is requested to take j udicial notice of the number of cities in Orange County and the number of cities that obtain city attorney services by contract, pursuant to California Evidence Code Section 452 (g) and (h). See www.oc.ca.gov/oclinks/oclinkslocalgov.asp (list of Orange County cities). See a l so. e .g. ,www.cityofal isoviejo.com/about_us/city_departments.php# City%20Attorn ey; www.ci.brea.ea.us/page.cfm?name =about dir; www.lagu nabeachcity .net/government/departments /attorney.htm; www.ci.laguna -hills.ca.us/departments/city _attorney/;www .lagunawoodscity.org/ article.cfm ?id=545; www.city lakeforest.com/depts/atty/default.asp; http://calapalma .civicplus.com/index.asp?NID=91;WWvv.cityofrsm.org/civica/fil ebank/ blobdload.asp ?BlobID=5243; www.villapark.org/depts/cityattomey.htm; www .ci.yorba- linda.ca.us/govemment/c ityofficials/cityattorney. php. See also, WWvv.cacities.org/resource_files/27345.RosterWithContactinfo%2010 .29.0 8.pdf (League of California Cities City Attorney roster, indicating private firm contact information for contract city attorneys).
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then, the potential impact of the Appellate Division's decision is significant.
This does not even take into account the far-reaching effect the opinion can
have on other cities with contract city attorneys throughout the State or to
all cities that have hired special counsel on an occasional or regular basis.
II. BRIEF S T A T El Y IEN T O F FA C T S.
Respondent, Benito Acosta, was charged with misdemeanor
violations of the Costa Mesa Municipal Code relating to his disruption of a
City Council meeting on January 3, 2006, by way of a complaint filed by
DalUly L. Peelman, "City Prosecutor,, for the People of the State of
California by and through Costa Mesa. Mr. Peelman is a member of the law
firm of Jones & Mayer, which provides city attorney and prosecutorial
services to the City of Costa Mesa by contract. During the criminal trial,
Respondent/Defendant made an oral motion to dismiss on the grounds that
the City's prosecutor was not authorized to act, having not taken an oath of
office. The Court found that an oath of office was required and, thus,
dismissed the case against the Defendant. This appeal ensued.
Specifically, defense counsel orally moved to set aside the
misdemeanor complaint based on the alleged failure of the city prosecutor's
authority to prosecute, by virtue of him not having been sworn into "office.,,
This motion was based on an unspecified constitutional requirement that a
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city prosecutor be sworn in, and on an allegedly applicable statutory
requirement for the taking and filing of an oath, contained in California
Government Code Section 24102. In addition, the Trial Court directed the
People's counsel to California Goverrunent Code Section 1360 as to a
constitutional oath requirement for public employees. The Trial Comt also
ultimately relied upon, or considered, the following authorities in
dismissing the criminal complaint: Article XX, secti.on 3 of the California
Constitution, requiring an oath of all public employees; the definition of a
public employee contained in California Goverrunent Code Section 810.2;
and the specification of the "City Attorney" as a city officer in California
Government Code Section 36507 necessarily included, by inference, city
prosecutors. [RT 423: 22-25; 437: 19-26; 438: 1-3; 437: 8-16]
III. S TATEMENT O F CASE.
A judgment was entered on appeal by the Appellate Division on
September 9, 2008. Appellant, the City of Costa Mesa, filed a timely
Petition for Re-Hearing, accompanied by an Application for Ce1tification
to Transfer the Matter to the Comt of Appeal. The Appellate Division
granted the petition and issued a modified Judgment, filed on October 23,
2008 ("Judgment"). Appellant timely re-filed an Application for
Certification to Transfer the Matter to the Court of Appeal on November 7,
2008 and
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Respondent filed an Opposition to that Application on November 12, 2008.
Appellant has received no response from the Appellate Division on that
Application as of the filing of this Petition.
IV. THIS PETITION IS Tll\ ' IELY FILED AND MAY PROPERLY
BE ISSUED. SINCE THERE ARE IMPORTANT ISSUES OF
LAW
DECIDED IN THIS MATTER .
This Court "may order a case transferred to it for hearing and
decision if the appellate division certifies under rule 8.1005 - or the Court
of Appeal determines under rule 8.1008 - that transfer is necessary to secure
uniformity of decision or to settle an important question of law." Cal. Rules
of Ct., Rule 8.1002. Rule 8.1008 provides that the Court of Appeal has
authority to transfer a matter on the petition of any party . Cal. Rules Ct.,
Rule 8.1008 (a).
A petitio n is proper in this matter, as the appellate division has not
granted Appellant's application for certification of the matter for transfer
and its opinion is not designated for publication. Cal. Rules Ct., Rule
8.1008 (b)( l ). The Appellate Division's modified Judgment was filed on
October 23, 2008 and this petition is, therefore, timely. Cal. Rules Ct.,
Rule 8.1008 (b)(2).
This petition is also properly granted because there are important
5
issues of law which have been decided in this matter, as detailed herein. In
particular, the Appellate Division' s opinion is directly contrary to Supreme
Court authority as stated in Peoole ex rel. Clancv v. Superior Court of
Riverside County, 39 Cal. 3d 740 (1985), demonstrating the importance of
the issues decided and of the need for this Court consider those issues.
Furthermore, the law as interpreted by the Appellate Division will
umavel criminal prosecutions, past and present, of Appellant and other
cities tlu·oughout Orange County and the State of California that contract
for city attorney ancllor city prosecutor services from private law firms,
without the benefit of the separate proceedings legally required for a
challenge to the authority of the actions of those acting on behalf of the
government. Since contracting for legal services by cities, whether on a
permanent or temporary basis, is a widespread practice throughout the
Count)', the Fourth District, and the -State, there are necessarily important
issues of law implicated by the Appellate Division's opinion in this matter
and which require this Court's consideration.
A. The Judgment Con tra di cts S u p r eme Cou rt Authorities
and Imprope rly Diminishes Generally Recognized
Powers of Municipalities.
I. People ex rel. Clancy v. Superior Court.
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The Appellate Division erroneously cites Clancy for a principle
contrary to the clear holding of Clancy. The Judgment improperly
concludes, based erroneously in part on Clancy, that a criminal prosecution
must "be brought in the name of the People by a public officer, such as the
city attorney ." (Judgment, at p. 2, 11. 9-10 (emphasis added)). There is no
such legal requirement.
The Supreme Comt in Peopl e ex rel. Clancy v. Superior Court, 39
Cal. 3d 740, 747 (1985), held that if private counsel is hired by a
governmental entity, the ethical duties of the governmental function
exercised by that legal counsel necessarily follow the responsibilities. The
Clancy Court specifically concluded that the private counsel employed by
the city was subject to the "heightened ethical requirements of one who
performs governmental functions" he performs. The Appellate Division's
Judgment relies on Clancy for an entirely different proposition than was
decided by the Supreme Court, namely that such private counsel becomes,
or must be by exercising such duties as, a "public official." Id.
The Clancy Court's conclusion stems from the power wielded by a
prosecutor, but the Court's opinion says nothing about the manner in which,
or the procedures by which, a prosecutor is, or must be, given such power.
The Court found that when a private attorney is exercising the duties of a
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public official "on behalf of and in the name of the government to which
greater standards of neutrality apply, he must adhere to those standards."
Id. at 747. The Court explicitly stated that "[n]othing we say herein should
be construed as preventing the government, under appropriate
circumstances, from engaging private counsel." Id. at 748.
In particular, the Clancy Court held that a contingency fee agreement
between private counsel and a city was prohibited when the attorney was
acting as a prosecutor or would otherwise exercise the power of an officer
such as the city attorney. Under these circumstances, heightened neutrality
standards applied, regardless of how the private attorney may have been
given authority to act for the city.
The Clancy Court stated nothing about the manner in which private
counsel could be hired by cities or given authority to exercise the powers of
a city officer. In fact, the individuals in Clancy who sought to disqualify
the city's attorney based on his interest in the contingency fee agreement
argued that only the City Attorney was authorized to bring suit on behalf of
the city. Id. at 750 n.5. The Court agreed, but only due to the statutory
requirements of the nuisance abatement sections under which private
counsel was operating in that case, not as a general principle. Id. The Court
did not disturb the ability of a city to contract for legal services, including
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