1. Whether the statutory scheme administering parking violations in California, to wit, California Vehicle Code §§40200 through 40230, is constitutional on its face.

2. Whether petitioner had a protected property interest to an appeal under Code of Civil Procedure §906 (“906 appeal”) and was deprived thereof without due process of law, in violation of the Fourteenth Amendment to the United States Constitution.

3. Whether the state court orders (Appendix A, B, C and D) are void on their face and nullities, depriving petitioner of a state remedy without due process of law, in violation of the First and Fourteenth Amendments to the United States Constitution.

 

A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:

CITY OF LOS ANGELES

LOS ANGELES DEPARTMENT OF TRANSPORTATION (LADOT)

ROBERT R. YATES, General Manager LADOT

LOCKHEED INFORMATION MANAGEMENT SERVICES COMPANY (LIMSC)

MATTHEW SILVERMAN, Senior Vice President LIMSC

CALIFORNIA DEPARTMENT OF MOTOR VEHICLES (DMV)*

FRANK S. ZOLIN, Director DMV*

 

*appeared as “STATE OF CALIFORNIA”

 

Defendant LOCKHEED etc. describes itself as follows:

 

“Lockheed IMS is a New York corporation and a private vendor, engaged in the business of processing parking citations. It specializes in this and other high technology applications for federal, state, county and local governments. At all times relevant to petitioner’s complaint, Silverman was the Western Region Senior Vice President of Lockheed IMS.”

 

 

Petitioner does not have information regarding wholly owned subsidiaries and parent companies, except that Lockheed IMS is just one company within the Lockheed Corporation better known as a major international aircraft manufacturer. It is involved in both commercial and government contracts.

 

 

TABLE OF CONTENTS

 

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 3

STATEMENT OF THE CASE 4 – 12

REASONS FOR GRANTING THE WRIT 12 – 40

CONCLUSION 40

 

TABLE OF AUTHORITIES CITED

 

Abelleira v. District Court of Appeal (1941) 29

                       17 Cal.2d 280; 109 P.2d 942

 

Bell v. Burson (1971) 402 U.S. 535 15,16

 

Board of Regents v. Roth (1972) 408 U.S. 564 20

 

Byrum v. Brand (1990) 219 Cal.App.3d 926 39

 

County of Ventura v. Tillett (1982) 133 Cal.App.3d 105 30,33,37,38

 

Estate of Palmieri (1932) 120 Cal.App. 698; 8 P.2d 152 11,30-36,38

 

Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4^th 377 32

 

Ingraham v. Wright (1977) 430 U.S. 651 17

 

In re Britany S. (1993) 17 Cal.App.4^th 1399; 22 Cal.Rptr.2d 50 21

 

In re Marriage of Griffin (1993) 15 Cal.App.4^th 685; 19 Cal.Rptr.2d 94 21,22

 

Knodel v. Knodel (1975) 14 Cal.3d 752 21

 

Laird v. Workers’ Comp. Appeals Bd. (1983) 147 Cal.App.3d 198 32

 

Leonardini v. Shell Oil. Co. (1989) 216 Cal.App.3d 547; 264 Cal.Rptr 883 39

 

Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422 5,15,16

 

Monroe v. Pape (1961) 365 U.S. 167 39

 

Nagel v. P&M Distributors Inc. (1969) 273 Cal.App.2d 176;

78 Cal.Rptr 65 30

 

Olson v. Cory (1983) 35 Cal.3d 390; 197 Cal.Rptr 843 25

 

Parratt v. Taylor (1981) 451 U.S. 527 5,15

 

Phelan v. Superior Court (1950) 35 Cal.2d 363; 217 P.2d 951 37

 

Pioneer Land Co. v. Maddux (1895) 109 Cal. 633 38

 

Sullivan v. Gage (1905) 145 Cal. 759 37

 

Vasquez v. Vasquez (1952) 109 Cal.App.2d 280; 240 P.2d 319 33,37

 

Zinermon v. Burch (1990) 494 U.S. 113 12,16,39,40

 

UNITED STATES CONSTITUTION:

 

First Amendment 7–10, 28,39

Fifth Amendment 10

Fourteenth Amendment 8-10,28

 

FEDERAL STATUTE:

 

28 U.S.C. §1257                  4,6,28,31,40

 

CALIFORNIA CONSTITUTION:

 

Article I, Sec. 1 17

Article XI, Sec. 11 14

 

CALIFORNIA STATUTES:

 

Civil Code                          §1573 39

 

Code of Civil Procedure    § 902 23

                                            § 904.1 6,19-21

                                                      § 904.1(a) 6,7,21,23        

                                                      § 904.2 19

                                                      § 906 6,7,18-20,23,27,28,35-38    

 

Vehicle Code                     §§40200 – 40230 5,14  

 

 

 

 

CALIFORNIA RULES OF COURT:

 

                                                      Rule 2(a) 22,25-27

                                                      Rule 2(a)(2) 6,7,18,27,28,35

                                                      Rule 2(d) 26

 

Miscellaneous:

 

Declaration of Independence (1776) [portion] 31

 

 

OPINIONS BELOW

 

The opinions of the highest state court to review the merits appears at Appendix A&B to the petition and both are unpublished.

 

The opinions of the trial court appears at Appendix C&D to the petition and both are unpublished.

 

JURISDICTION

 

The date on which the highest state court decided my case was July 16, 1997. A copy of that decision appears at Appendix E.

 

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

 

STATEMENT OF THE CASE

 

Re Question 1: The crux of petitioner’s underlying state cause of action is the unconstitutional statutory scheme regulating parking enforcement procedures in California. The state courts have failed and refused to adjudicate petitioner’s constitutional challenge and he now brings it to this Court under §1257 appeal. The complaint is generally based on violations of state law, however the constitutional challenge [App. F-27, 28] is based on federal due process principles, to wit, failure to provide an opportunity to be heard on liability prior to imposing a penalty (predeprivation hearing), failure to provide predeprivation notice, and creating an unlawful bill of attainder.

 

The unconstitutional statutory scheme itself creates a conspiracy among the defendants [App. I-57; M-6,7] to tortiously inflict upon petitioner the injuries alleged in the complaint and is the common thread that links all defendants together in this state action. It is the proximate cause of all tort damages alleged; all defendants are the responsible parties executing the scheme and are commonly subject to liability for the damages caused thereby. [App. I-57; L-5]. The constitutional torts alleged involve

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rights guaranteed by the California Constitution [App. I-5], implicating protection by the U.S. Constitution as well. [App. M-7].

 

The complaint challenges the constitutionality of the statutory scheme authorizing the allegedly wrongful course of conduct described in the complaint [App. F-27] that was executed by and through the challenged administrative procedures, i.e., California Vehicle Code §§40200 through 40230 and related statutes, upon which all defendants commonly rely for their actions taken against petitioner. Those procedures are the very source of the alleged injuries for which petitioner has been seeking a remedy in state court. [App. M-8]

 

Petitioner could have directly challenged the state procedures in federal court as a “Logan” violation (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 436), however he instead elected to make the challenge in state court as an independent post-deprivation tort action. (See Parratt v. Taylor (1981) 451 U.S. 527, 538). State court has failed to decide this question by (1) failing to address the subject matter of the complaint in trial court [Question 3], and (2) failing to grant the appeal to which petitioner is statutorily entitled [Question 2]. State supreme court denied review [App. E]. Petitioner now appeals under §1257.

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Re Question 2: The final act of deprivation in state court, destroying the state remedy, was the deprivation of the appeal to which petitioner is statutorily entitled under Code of Civil Procedure §906 which incorporates §904.1 and is referred to herein as “906 appeal.” The “906 appeal” deprivation took place on November 14, 1996 [App. A] when petitioner’s state remedy was ultimately destroyed. Proceedings since that time were merely the exhaustion procedures required before taking this §1257 appeal.

 

The first opportunity to bring the federal question on this 906 appeal deprivation was by motion to vacate filed November 27, 1996 [App. J] wherein petitioner stated that he was conferred a protected property interest to an appeal from both orders listed on the notice of appeal under Code of Civil Procedure §§904.1(a) and 906, as well as Rule 2(a)(2) of the California Rules of Court [App. J-6], and that the November 14^th order “is patently false and in violation of … the Due Process Clauses of the California and United States Constitutions.” [App. J-9].

 

Concealment of material facts by Court of Appeal: Significant regarding this appeal deprivation is the constructive fraud by the court of appeal described in the final petition for review [App. M-13 thru M-18]. Petitioner stated in the motion to vacate [App. J-17] that the dismissal order dated November 14^th “is not

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sound because of the hidden material facts … which would materially affect the decision.” Not only is the dismissal order fraudulent, the entire appellate proceeding was fraudulent as shown on the record, destroying entirely petitioner’s state court remedy.

 

Petitioner was defrauded into filing a premature petition for review to the state supreme court [App. M-15] wherein the federal questions on the November 14^th deprivation were again brought in several places [App. K-12] (usurpation of power violating CCP §§904.1(a) and 906, Rule 2(a)(2) CRC, the First Amendment of the U.S. Constitution, and Due Process Clauses of both state and federal constitutions); [App. K-19] (petitioner’s legitimate claim of entitlement to the “906 appeal” guaranteed under both state and federal constitutions); [App. K-28] court of appeal ignoring the “one final judgment” rule and violating statutory authority authorizing petitioner’s appeal which violates the Due Process Clauses of both constitutions); [App. K-28,29] (petitioner’s statutory right to appeal violated, depriving him of that protected property interest under constitutional guarantees, and by dismissing the appeal, depriving petitioner of access to the courts in violation of the First Amendment); [App. K-31] (the dismissal order in violation of statutory authority and rules of court, blocking petitioner’s access to the court to remedy viola-

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tions of due process). Review of that petition was denied February 5, 1997.

 

Federal questions regarding the November 14^th deprivation are brought in the final petition for review. [App. M-20] (the dismissal order of November 14, 1996, under the guise of “untimeliness” of appeal, denying access to appellate review, depriving petitioner of his statutory right of appeal); [App. M-24] (state courts have violated the First Amendment to the United States Constitution as well as the substantive component of the Due Process Clause protected by the Fourteenth Amendment); [App. M-25] (by arbitrary action and deliberate disregard of facts appearing on the record, the court of appeal has deprived petitioner of his statutory entitlement to appeal, thus denying him substantive due process and access to the courts, protected by the Fourteenth Amendment); [App. M-25] (the state has conferred this benefit on petitioner, thus creating a legitimate claim of entitlement to the “906 appeal” which is a property interest guaranteed and protected by the United States Constitution); [App. M-31] (the August 24^th order and its affect on the timeliness of this appeal from both orders was ignored by the court when making its November 14^th order, which arbitrarily blocked access to the legitimate statutory appeal that was due); [App. M-33, 34] (court of appeal

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refused to exercise its jurisdiction which arbitrarily denied petitioner access to the courts for an opportunity to be heard on the merits of his cause, depriving petitioner of his protected rights under the First Amendment, his statutory entitlements under state law, all protected under the substantive component of the Due Process Clause by the Fourteenth Amendment). Final review was denied July 16, 1997. Petitioner now resorts to this Court.

 

Re Question 3: The deprivation of access to the state courts is the “big picture” of which the “906 appeal” deprivation is a part. There has been a total close-out of a state remedy by the state judicial system. The initial access deprivation took place on March 17, 1995 when the trial court issued its first order of dismissal [App. C]. The second dismissal by the trial court, an exacerbation of the first access deprivation, occurred August 24, 1995 [App. D]. The denial of access to the court was the first federal question formally raised in this action [App. I-19, 20], on appeal [App. I-16 thru I-27; M-20].

 

The denial of access to trial court, i.e., the first and second access deprivations, is stated on appeal as “failure [of the trial court] to address the subject matter of the complaint.” [App. I-16]. The federal question is raised as “the right to protect one’s property in a court of law” and “being deprived of an

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opportunity to defend ‘at a meaningful time and in a meaningful manner’.” [App. I-16, 17]; “[t]he Fourteenth Amendment … prohibits a state from depriving any person of property without due process of law” [App. I-17]; “[t]he United States Supreme Court has long recognized a constitutional right of access to the courts for all persons” [App. I-17]; “a cause of action is ‘a species of property’ protected by the Fourteenth Amendment” [App. I-17]; “[t]he Fourteenth Amendment’s Due Process Clause has been interpreted as preventing the states from denying potential litigants use of established adjudicatory procedures” [App. I-18]; “[t]he Fifth Amendment’s Due Process Clause [applicable through the Fourteenth] … impose[s] ‘constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.’” [App. I-18]; “[p]laintiff’s right of access to the courts is one aspect of the First Amendment right of petition … which is applicable … by the Fourteenth Amendment.” [App. I-19].

 

A material component of the trial court access deprivation question (the first and second access deprivations) is the “voidness question” raised as the third issue on appeal [App. I-32 thru I-37], titled “The [trial] judge acted in excess of jurisdiction

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in making the orders appealed from.” [App. I-32]. The voidness issue, caused by the trial judge acting in excess of his jurisdiction, is the means by which the federal violation arose in this action. The seminal California case directly on point involving the voidness issue is Estate of Palmieri (1932) 120 Cal.App. 698; 8 P.2d 152 [App. I-32 thru I-36].

 

Instead of adjudicating the access deprivation issues on appeal which necessarily includes the voidness question defined by Palmieri, supra, the court blocked the appeal by fraudulently depriving petitioner of the “906 appeal,” described ante, exacerbating denial of access to the entire state system. The denial of access issue, already raised as a federal question on appeal, was again raised in the petition for rehearing [App. L-17, 18], discussing the denials of access to both levels of state court and the two means by which the appellate court denied access to appeal, to wit, (1) failure to address and act on the voidness question (Issue III on appeal) [App. L-19, 20], and (2) failure to adjudicate the “one final judgment” rule (going to appellate jurisdiction and the “§906” deprivation) [App. L-20, 21].

 

The denial of access issue is raised in the final petition for review as “all court orders in this case are void on their face and nullities…” [App. M-35], discussing in detail each of

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the four state court orders issued in this case [App. M-35 thru M-41; M-41, 42; M-42 thru 49; M-50 thru M-52], concluding that “the state remedy is ‘adequate in theory, [but] not available in practice.’” [App. M-52].

 

REASONS FOR GRANTING THE PETITION

 

Generally:

 

The main reason for granting this petition is to obviate the need for petitioner to seek a federal remedy “where the state remedy, though adequate in theory, was not available in practice” (Zinermon v. Burch (1990) 494 U.S. 113, 124), by remanding the case to superior court where the acts in excess of jurisdiction began, and mandating the state court obey the applicable law and exercise its jurisdiction according to the facts of the case, and provide the state remedy due in petitioner’s tort action. The state court system has failed and refused to do so, even resorting to fraud, particularly at the appellate level, by refusing to disclose critical facts on the docket [see e.g. App. M-13] and otherwise, as discussed infra, the omission of which materially affected the outcome of this case. By refusing to acknowledge and act upon critical factors that form the legal character and requirements of this lawsuit, brought to the courts’ attention many times, the state courts have arbitrarily blocked

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and destroyed petitioner’s tort remedy. Remedial relief from this Court is now sought by §1257 appeal.

 

The trial court refused to acknowledge and act upon the critical fact that petitioner’s tort action is independent and outside of the administrative procedures, those procedures being the subject of constitutional attack and proximate cause of all damages alleged. At the hearing the trial judge dismissed the complaint based on the false premise of “failure to exhaust administrative remedies” [App. I-27, 28] (i.e., a dismissal without prejudice for want of jurisdiction), but then “shifted gears,” subsequently signing the written dismissal order prepared by opposing counsel converting that ruling into “failure to state facts sufficient to constitute a cause of action” [App. I-33, 34] (i.e., a dismissal with prejudice “on the merits”). The judge arbitrarily refused to correct the inconsistency when petitioner brought it to the court’s attention [CT 263].

 

This tort action involves the unconstitutional procedures authorizing the processing of parking citations in California, affecting millions of people on a daily basis, amounting to what is in effect an unconstitutional money-making scheme, fleecing the people of multi-millions of dollars for the benefit of big business, with a “kick-back” to government. In Los Angeles, the

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processing agency is Lockheed Information Management Services Company (part of Lockheed Corporation), a private organization, whose participation in municipal revenue functions is forbidden under Article XI, §11, of the California Constitution [App. M-4] which the courts have disregarded.

 

The state courts have done nothing to remedy petitioner’s cause, allowing this unconstitutional scheme to continue unabated. All four court orders, involving both the trial and appellate courts, are void on their face and nullities, deciding nothing [App. M-4], the judicial acts being arbitrary and capricious, unauthorized by state law, and carried out in deliberate disregard of petitioner’s fundamental rights protected by the California and United States Constitutions and the rights of millions of others similarly situated.