Yang v. City of San Jose

Filed 6/19/07 Yang v. City of San Jose CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In propria persona plaintiff George Guang Yang was found guilty and ordered to pay $161 on a traffic citation for failing to yield to a pedestrian (Veh. Code, 21950, subd. (a)), and he lost his appeal in the appellate division of the Santa Clara County Superior Court. Thereafter, still in propria persona, he brought a $36 million civil lawsuit against defendant City of San Jose (City) for issuing a wrongful citation and for government corruption. The trial court granted Citys motion for judgment on the pleadings and Yangs complaint was dismissed without leave to amend. In propria persona in this court, Yang appeals the judgment on the pleadings, other orders issued by the trial court, the judgment of the traffic commissioner, and the order of the appellate division affirming the lower court judgment.

FACTS

The statement of San Jose Police Officer Christina Anayas testimony is taken from the Santa Clara County District Attorneys respondents opening brief on appeal filed in the appellate division. Yangs testimony is taken from his opening brief on appeal also filed in that court.

On February 23, 2004, Anaya issued a traffic citation to Yang for failing to yield to a pedestrian. At the hearing on the citation, Anaya testified she was stopped at a red light at the intersection of Market and Santa Clara Streets in a marked Chevy Tahoe SUV. The pedestrian signals on Santa Clara were green and one pedestrian entered the southern-most east-west crosswalk on Santa Clara Street walking eastbound. A short time later, another pedestrian entered the crosswalk behind the first, also going eastbound. Anaya saw a gray Toyota sedan turn left from westbound Santa Clara Street onto southbound Market Street causing the second pedestrian, who had the right-of-way, to stop in the middle of the crosswalk so the gray Toyota could pass in front of him.

Anaya made a U-turn and followed. The gray Toyota stopped at South Market Street and Park Avenue. Anaya explained to the driver, Yang, that she stopped him for failing to yield to the pedestrians in the crosswalk of Market and Santa Clara Streets. Yang stated he did not see any pedestrians. Anaya issued the citation to Yang and he signed it in her presence.

Yang testified at the hearing that he was traveling from a job interview from North Market Street to South Market Street and that he did not make a turn at the intersection of Santa Clara and Market streets. He did not see any pedestrians when he passed the crosswalk. He was driving in the left lane southbound on Market Street and when he saw the police SUV behind him, he moved to the right lane. The police SUV moved to the right lane also, so he stopped.

Yang stated the officer asked him if he knew why she stopped him. He said, No, I dont know. She said, You passed crosswalk [sic] between pedestrians. Thereafter, she issued the citation. Yang stated he did not see any pedestrians at the crosswalk and he did not make a turn at the intersection of Santa Clara and Market streets. Also, he was driving a beige Toyota Solara Coupe, not a gray sedan. He did not see where and how Anaya made a U-turn. He believed that Anaya made a mistake in stopping him and issuing the traffic citation.

The traffic commissioner found Yang guilty and the judgment was affirmed by the appellate division of the superior court.

On October 3, 2005, Yang filed suit against City alleging that when Anaya appeared in traffic court, she did not wear [a] police uniform, did not have a police badge and did not carry a handgun this time. Ms. Anaya did not identify herself. Yang stated he had requested the production of documents from the district attorney for Ms. Christina Anayas identification, employer, job title, certificate and job assignment on February 23, 2004, but Defendant did not response [sic] and did not provide any document [sic] to Plaintiff. Therefore, the Traffic Court and Appellate Division . . . did not examine Ms. Christina Anayas identification, employer, job title and credibility, and did not listen to Plaintiffs testimony and weigh Plaintiffs evidence.

Yang alleged that Anaya was an employee of the City . . . and [wa]s hired as a Clerk at the Horse Mounted Unit of San Jose Police Department under supervision of Sergeant Gregory Trapp. He stated she was a Clerk of Defendant, but was not a member of the Department of California Highway Patrol (California Vehicle Code section 2250 and Government Code Section 20390). She was not authorized by the law to issue the traffic citation (California Vehicle Code Sections 2400-2429.5).

Yang further alleged Anaya was neither a traffic officer . . . nor a peace officer . . . , but she unlawfully drove the police SUV, wore the police uniform with a police badge, and unlawfully carried a handgun on February 23, 2004 when she wrongfully stopped Plaintiff and issued Plaintiff the traffic citation. Yang alleged Anaya violated Government Code Section 19850, Vehicle Code Section[s] 2257, 2261, et seq., and Penal Code Section[s] 12024, 12028, et seq. Yang alleged Sergeant Trapp gave Anaya permission to wear [the] police uniform with [the] police badge, to carry [a] handgun, to drive [the] police SUV and to wrongfully issue the traffic citation to Plaintiff. He was responsible for Ms. Anayas misconducts. The Police Department of San Jose was fully responsible for both Ms. Anaya and Sergeant Trapps misconducts ([Gov. Code, ] 36505, et seq.).

Although not alleged in the complaint, as an example of Citys misconduct stated during the motion for reconsideration in the superior court and in his opening brief in this court, Yang asserted that both Anaya and Sergeant Trapp were undocumented immigrants with no legal status and work authorization in the United States,[1] and that Anaya lied and hid her identification, and was illegally hired as a police officer by the Horse Mounted Unit of the San Jose Police Department.

Because City wrongfully issued the traffic citation, falsely presented the case and falsely testified in the traffic court trial on July 23, 2004[,] and the appeal court hearing on August 12, 2005, Citys misconducts resulted [in] the $161 fine to Plaintiff and caused Plaintiff ser[i]ous financial, mental and spiritual damages. Defendant has violated the U.S. Constitution Amendment IV, California Constitution Article I, Sections 1 & 13.

City failed to timely respond to the summons and complaint and Yang requested and was granted a default judgment entered on November 7, 2005. Thereafter, the default was set aside on January 3, 2006. According to Yang on appeal, the Order Granting Motion to Set Aside Default prepared by [City] . . . did not state any factual merit or legal basis and was therefore invalid.

Yang filed an opposition to order granting motion to set aside default and a motion for reconsideration of plaintiffs opposition to set aside default which was denied on February 9, 2006. Thereafter, Yang served City with special interrogatories on March 27, 2006. City objected for several reasons and Yang filed a motion to compel further discovery responses against City. The motion was granted in part and denied in part.

City ultimately filed a motion for judgment on the pleadings which was heard and granted without leave to amend on June 15, 2006. The case was dismissed with prejudice. This appeal ensued.

ISSUES ON APPEAL

Yang asserts that the trial court erred in (1) granting judgment on the pleadings, (2) granting the motion to set aside the default judgment, and (3) denying most items in his motion to compel disclosure. (4) The traffic court erred in the order against Yang for the traffic violation that Yang never did.

Yang also presents constitutional claims based on the Fourth Amendment to the federal Constitution (the right of the people to be secure against unreasonable searches and seizures) and article I, sections 1 and 13, of the California Constitution (the right to enjoy and defend life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy, and being secure in their homes, etc., against unreasonable seizures and searches, respectively). Yang claims that the wrongful arrest and citation and the subsequent long time period of wrongful prosecution has seriously harassed [him] and caused great sufferings to [him] mentally, emotionally, spiritually and financially.

JUDGMENT ON THE PLEADINGS

Yang complains that the order granting Citys motion for judgment on the pleadings and the judgment on the pleadings had no . . . factual merit or legal basis and should be reversed. The trial court abused his discretion and had strong bias in favor of [defendant] and seriously discriminated Yang due to his Pro Se status and due to his race and national origin, in violation of California Code of Judicial Ethics, canon 2A and canon 3B(2) and (5).[2]

In oral argument, Yang asserted that Anaya was in the United States illegally and used a fake Social Security number to apply for her job and therefore the citation was illegal because theyre illegal. He also stated he did not have to comply with Government Code section 900 et seq., and file a claim with City before filing a lawsuit. After assuring itself that Yang did not believe he had to allege compliance with the claim procedure and therefore would not attempt to cure the defect if he amended his complaint, the trial court granted the motion for judgment on the pleadings without leave to amend.

First, an order granting a motion for judgment on the pleadings is similar to an order sustaining a demurrer without leave to amend in that both orders are not directly appealable. An appeal lies from the judgment thereafter entered. (6 Witkin, Cal. Procedure(4th ed. 1997) Proceedings Without Trial, 174, p. 587; citing Budrow v. Wheatcraft (1953) 115 Cal.App.2d 517, 522.) Thus, Yang may not appeal from the order granting the motion for judgment on the pleadings.

As for the judgment on the pleadings, it was correctly entered. First, Yang did not timely file a claim as a prerequisite to maintaining an action against a public entity for money or damages. No suit may be filed against the public entity until a written claim has been presented and was either acted upon or deemed rejected. (Gov. Code, 945.4.) This requirement is mandatory, and failure to observe it is fatal to a cause of action. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.) A claim relating to a cause of action for death or injury to the person or to personal property or growing crops shall be presented within six months of the accrual of the cause of action. Any other causes of action shall be presented no later than one year after the accrual of the cause of action. (Gov. Code, 911.2, subd. (a).)

Here, Yang had not and apparently would not attempt to file a claim pursuant to Government Code section 900 et seq. because he believed that the code did not require him to do so. Even in this court, Yang still maintains in his opening brief that the Superior Court did not require Yang to file the administrative claim to Respondent [sic] prior to file [sic] the lawsuit at the Court. Yang states in his brief that he did file a claim with City on June 19, 2006, but it was returned as untimely because the traffic citation was issued on February 23, 2004. Thereafter, Yang applied to the city council to present a late claim, but his application was denied for the same reason as the original claim. Even if Yang tried to amend his complaint, he could not assert that his claim was filed timely.

Yang also asserts that new facts and legal bases for his claim have appeared. These are the claims that Anaya and Sergeant Trapp are illegal immigrants, etc., and that they, and the chain of command going up to the mayor and the city council, have seriously violated federal and state law. Allegations against Anaya and Trapp generally appear in the complaint; although there Yang did not complain that they were illegal immigrants. However, he did claim that City was responsible for their conduct. All of Yangs claims relate back to the propriety of the original citation. Yang raised, and City objected to, the immigration contention in superior court, and the court rejected the contention by rendering judgment on the pleadings against Yang. Yang failed to state factual allegations that were sufficient to constitute a cause of action. There was no error in granting judgment on the pleadings.

ORDER SETTING ASIDE DEFAULT

Next, Yang asserts that the order granting Citys motion to set aside the default had no factual merit or legal basis and violated former California Rules of Court rule 227(e) (now rule 2.30) (hereafter, rule) which requires an order to recite in detail the conduct or circumstances justifying the order.

A court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., 473, subd. (b).) It is within the trial courts discretion to grant relief under this provision. (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.)

A response to Yangs complaint was due on November 3, 2005, but none was filed. Yang immediately moved to enter a default judgment, notice of which City received on November 8.

City moved to set aside the default based upon inadvertence and/or excusable neglect. A declaration from Assistant City Attorney George Rios stated that after the complaint had been received in the office, a database entry was made and a file cover created. However, the documents were misplaced before being given to him for assignment, and the date to respond to the complaint was not calendared. The first Rios knew of the case was when he received the notice of request to enter default. Thereafter his office obtained a copy of the complaint from the court, prepared a general denial to the complaint, and served it on plaintiff although, it could not be filed due to the pending request to enter default.

Rioss administrative assistant, Sue Uemura, filed a declaration explaining that she had started to open a matter in the city attorneys office, but she was interrupted by another issue . . . which needed my immediate attention. She set the file aside to finish entering the data later, but the file was misplaced. The next week, she left for a two-week vacation. The administrative assistant assigned to help her in creating files and calendaring new litigation matters, was unaware of the file. On November 8, 2005, in response to Yangs notice for entry of default, Uemura got a copy of the superior court file the same day, and searched for and finally found the original summons and complaint which had been misfiled.

On November 15, Deputy City Attorney Denise Bazzano telephoned Yang, told him that City would be filing a motion to set aside the default, and asked him to stipulate to set aside the default. He refused. The motion was litigated and granted on January 3, 2006.

Under the abuse of discretion standard of review, appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) There was no abuse of discretion here nor did Yang state facts showing bias in favor of respondent and discrimination against Yang. There was no miscarriage of justice. Citys declarations contain sufficient evidence to justify the setting aside of the default. In such situations very slight evidence will be required to justify a court in setting aside the default. . . . [] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying [Code of Civil Procedure] section 473 must be resolved in favor of the party seeking relief from default. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.)

DISCOVERY CALENDAR TENTATIVE RULINGS

Yang complains that the ruling denying most of the 33 discovery documents he requested from City lacked factual merit or legal basis and had a strong bias in favor of City. The trial court granted Yangs requests for Anayas statement and testimony at the traffic court trial on July 23, 2004, but denied 31 items which included Anayas and Trapps identification, work permission, immigration status in the United States, employer, job title, job duty, police badge, police certificate, handgun certificate, police uniform certificate, police vehicle certificate, permission to issue traffic citation, and their relations and roles with the Head of the Horse Mounted Unit, Robert Davis, Ron Gozales [sic], and City Council.

The court denied discovery for reasons stated in the order: First, nine of the requests were directed to nonparties (see Code Civ. Proc., 2031.030, subd. (c)(1)); 17 of the requests failed to specifically describe the documents sought (see Code Civ. Proc., 2031.010); and five of the requests were for information in Anayas personnel file, which may only be discovered by motion pursuant to Evidence Code sections 1043 and 1045. The request did not satisfy the requirements for that motion.

In discovery matters, [t]he trial courts determination will be set aside only when it has been established that there was no legal justification for the order granting or denying the discovery in question. (Save OpenSpaceSanta MonicaMountains v. Superior Court (2000) 84 Cal.App.4th 235, 245-246.) The lower courts order clearly sets forth the law supporting each of its reasons for denying in part Yangs motion. Aside from the bare assertion of bias and discrimination, Yang presents no facts evidencing these accusations. Furthermore, he does not show that he complied with the requirements of the Code of Civil Procedure and Evidence Code sections 1043 and 1045 in framing or justifying his requests. There was no abuse of discretion in the denial of his discovery requests.

JUDGMENTS OF THE TRAFFIC COMMISSIONER AND APPELLATE DIVISION

Yang asserts that the traffic commissioner and the appellate division of the superior court failed to examine Anayas identification, employment authorization, employer, job title, job assignment, eligibility to cite Yang for traffic violation, and did not listen to Yangs testimony and weigh Yangs evidence. Yang was innocent and did not violate any traffic law on February 23, 2004. Yang also claims both courts had strong bias against Yang, had seriously discriminated Yang and violated the California Code of Judicial Ethics, Canon 2(A), Canon 3(B)(2) & (5). (See fn. 2, ante.)

There is no constitutional right to appeal. (Leone v. Medical Board (2000) 22 Cal.4th 660, 668.) A partys right to appeal is conferred exclusively by statute. (Code Civ. Proc., 904.1, 904.2; Garau v. Torrance Unified School Dist. (2006) 137 Cal.App.4th 192, 198.) It is the appellants burden to explain why the order appealed from is appealable. (Rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536, 557.)

The orders Yang challenges were issued on July 23, 2004 (traffic court), and August 17, 2005 (appellate division). A violation of Vehicle Code section 21950, subdivision (a), is an infraction. (Veh. Code, 40000.1.) In an infraction case, an appeal may be taken from a judgment or order to the appellate division of the superior court. (Pen. Code, 1466.) The California Rules of Court are applicable. Rule 8.708 provides that an appellate division judgment is final (1) 15 days after judgment is pronounced; or (2) If a party timely files a petition for rehearing or application for certification, 30 days after judgment is pronounced or when all such petitions or applications are denied, whichever is earlier.

The appellate divisions August 17, 2005 order affirming the judgment of the traffic court was final on August 22, 2005. Yang did not file a petition for rehearing or application for certification in the appellate division. Instead, he turned to civil remedies, filing a lawsuit in October of 2005. Yangs purported appeals of the traffic and appellate division judgments are untimely and must be dismissed.

CONSTITUTIONAL CLAIMS

Yangs constitutional claims are based on Citys wrongful traffic citation, its falsely presented case, and false[] testi[mony] in both the traffic court and appellate division. Yang claims he took nine trips to traffic court (in 2004, April 5, June 25, July 23, July 27, August 27, September 17, October 20, December 1; and in 2005, on January 12) and suffered a long time appealing process due to the wrongful citation and the wrongful [t]raffic [c]ourt order. City unlawfully took innocent U.S. Citizen Yangs money by the fine of $161.00. Furthermore, Yang is living on the Federal Social Security Disability Benefit now due to the serious damages caused by Respondents misconducts.

Here, although Yang is alleging that his constitutional rights have been violated, the relief he requests is money damages. However, the prerequisite requirement that Yang timely file a claim with City pursuant to Government Code section 945.4 applies. This he did not do, and as a result, his complaint is subject to a general demurrer or a motion for judgment on the pleadings for failure to state a cause of action. (San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 558-559.)

Furthermore, a plaintiff cannot pursue a collateral attack on his conviction unless the plaintiff can show that his conviction was vacated, reversed, expunged, or impugned. (Heck v. Humphrey (1994) 512 U.S. 477, 489 (Heck).) In Heck, a defendant convicted of voluntary manslaughter brought a federal 42 United States Code section 1983 (section 1983) lawsuit in civil court against government officials who had investigated and prosecuted him, alleging that they had engaged in unlawful acts that led to plaintiffs arrest and conviction. (Heck, supra,512 U.S. at pp. 478-479.) The Supreme Court analogized the plaintiffs case to a malicious prosecution case, which requires termination of the prior criminal proceeding in favor of the accused. This requirement avoids collateral attacks on the conviction, and avoids conflicting results in different courts arising from the same facts. (Id. at pp. 484-486.)

In the present case, Yang alleged that City violated his rights to be free from unreasonable search and seizure under the federal Constitution and his constitutional rights under the California Constitution. Although he did not actually state a cause of action under section 1983, his constitutional allegations can be analogized to such an action since his complaint basically alleged an officer deprived him of rights and privileges secured by the Constitution to citizens. Based on the Supreme Courts holding in Heck, Yang must show that he was found not guilty of the traffic violation. Yang did not and could not allege that his conviction was vacated, reversed, expunged, or impugned. Indeed, he admitted that the appellate divisions order affirming the traffic courts judgment was final. Under these circumstances, Yang failed to state facts sufficient to constitute a cause of action on his constitutional challenges.

DISPOSITION

The appeals of the traffic court and appellate division judgments are dismissed. The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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Analysis and review provided by Oceanside Property line attorney.

[1] Yang traces Citys misconduct from Anaya to her supervisor, to his supervisor, to the former mayor, the current mayor, and the city council. Yang claims Anaya was not a citizen of the United States, but was an employee of City, and not a member of the California Highway Patrol and therefore not authorized to issue a traffic citation to Yang, and she was not a traffic officer nor a peace officer but she drove the police SUV, wore a police uniform, and carried a police badge and a handgun when she issued the citation. Sergeant Trapp, Anayas direct supervisor, was also an illegal immigrant who was illegally hired by City by the Horse Mounted Unit of the San Jose Police Department. Trapp allowed Anaya to unlawfully wear the police uniform, drive a patrol vehicle, etc., and issue a traffic citation to Yang. The head of the mounted unit was also Citys employee and a supervisor of Anaya and Trapp. He or she unlawfully hired Anaya and Trapp, and allowed Anaya to wear the uniform, etc., culminating in the traffic citation to Yang. Robert Davis was the chief of police, an employee of City and supervisor of the head of the mounted unit, Trapp, and Anaya, and Davis allowed Anaya to unlawfully wear the uniform, etc. Ron Gonzales was the previous mayor of San Jose who was an employee of City and the supervisor of all of the persons named above and he allowed Anaya to unlawfully wear the uniform, etc., and issue a citation to Yang. Chuck Reed is the mayor of San Jose, a member of the city council, an employee of City, and supervisor of everyone named above except Gonzales, and he allowed Anayas unlawful actions. Finally, the city council was the supervisory committee of everyone named above and allowed Anayas unlawful actions. All of the persons named above were fully responsible for the misconducts and violation of laws all the way up the chain of command; they all violated a number of statutes and constitutional provisions, and are responsible for Yangs damages.

[2] The canons Yang cites have to do with a judges duty to respect and comply with the law, act with integrity and impartiality despite partisan interests or criticism, and perform judicial duties without bias or prejudice.