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PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ DEMURRER
PETER ELIASBERG (SBN 189910) [email protected] BRENDAN HAMME (SBN 285293) [email protected] ACLU Foundation of Southern California 1851 East 1st Street, Suite 450 Santa Ana, CA 92705 Telephone: (714) 450-3963 Facsimile: (714) 543-5240 SOMIL TRIVEDI (admitted pro hac vice) [email protected] American Civil Liberties Union Foundation 915 15th St., NW Washington, DC 20005 Telephone: (202) 715-0802 Counsel for Plaintiffs (Additional Counsel for Plaintiffs on Following Page)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE – CIVIL COMPLEX DIVISION
PEOPLE FOR THE ETHICAL OPERATION OF PROSECUTORS AND LAW ENFORCEMENT (P.E.O.P.L.E.); BETHANY WEBB; THERESA SMITH; and TINA JACKSON,
Plaintiffs,
vs. ANTHONY J. RACKAUCKAS, in his official capacity as Orange County District Attorney; and SANDRA HUTCHENS, in her official capacity as Orange County Sheriff,
Defendants.
Case No. 30-2018-00983799-CU-CR-CXC PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ DEMURRER TO AMENDED COMPLAINT Assigned: Hon. Glenda Sanders Date: December 7, 2018 Time: 1:30 P.M. Dept.: CX101 Action Filed: April 4, 2018 Trial Date: Not yet set
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-2- PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ DEMURRER
JACOB S. KREILKAMP (SBN 248210) [email protected] JOHN L. SCHWAB (SBN 301386) [email protected] THOMAS RUBINSKY (SBN 302002) [email protected] ANNE K. CONLEY (SBN 307952) [email protected] MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue Fiftieth Floor Los Angeles, California 90071-3426 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 MARIANA KOVEL (admitted pro hac vice) [email protected] American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, NY 10004 Telephone: (646)905-8870 Facsimile: (212)549-2654 Counsel for Plaintiffs
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TABLE OF CONTENTS
Page
-3- PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ DEMURRER
I. INTRODUCTION ..................................................................................................................8
II. STATEMENT OF THE CASE ..............................................................................................9
III. ARGUMENT .......................................................................................................................10
A. Plaintiffs Have Taxpayer Standing to Challenge Defendants’ Use of Public Funds to Violate the Federal and California Constitutions ......................................10
1. Plaintiffs Allege Expenditure of Public Funds on Illegal Activity ..............11
2. Taxpayer Standing Was Created for the Type of Claims Asserted Here, and Taxpayer Standing Does Not Violate Public Policy ....................12
B. Plaintiffs’ Claims Are Timely ..................................................................................15
C. Plaintiffs Have Stated Claims Under Section 1983 .................................................15
D. Plaintiffs Have Properly Asserted California Constitution Claims ..........................18
E. Plaintiffs Have Standing Under Section 1085 to Receive a Writ of Mandate to Enforce Non-Discretionary Statutory Duties .......................................................18
IV. CONCLUSION ....................................................................................................................22
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TABLE OF AUTHORITIES
Page(s)
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FEDERAL CASES
Arizona v. Fulminante (1991) 499 U.S. 279 .............................................................................................................10, 15
Brady v. Maryland (1963) 373 U.S. 83 ......................................................................................................... 9, passim
Gibson v. United States (9th Cir. 1986) 781 F.2d 1334 .............................................................................................16, 17
Harris v. City of Roseburg (9th Cir. 1981) 664 F.2d 1121 ....................................................................................................17
Lisker v. City of Los Angeles (9th Cir. 2015) 780 F.3d 1237 ....................................................................................................17
Massiah v. United States (1964) 377 U.S. 201 ...............................................................................................................9, 15
Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658 .............................................................................................................17, 18
STATE CASES
420 Caregivers, LLC v. City of Los Angeles (2012) 219 Cal.App.4th 1316 .....................................................................................................18
Animal Legal Defense Fund v. California Exposition & State Fairs (2015) 239 Cal.App.4th 1286 .....................................................................................................12
Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185 ...............................................................................................................15
Blair v. Pitchess (1971) 5 Cal.3d 258 ..................................................................................................12, 13, 16, 18
Board of Social Welfare v. County of Los Angeles (1945) 27 Cal.2d 98 ....................................................................................................................21
Bradley v. Lacy (1997) 53 Cal.App.4th 883 ...................................................................................................20, 22
California DUI Lawyers Assn. v. California Dept. of Motor Vehicles (2018) 20 Cal.App.5th 1247 .......................................................................................................11
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TABLE OF AUTHORITIES (Continued)
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Dix v. Superior Court (1991) 53 Cal.3d 442 ............................................................................................................19, 20
Doe v. Albany Unified School District (2010) 190 Cal.App.4th 668 .......................................................................................................21
Harboring Villas Homeowners Assn. v. Superior Court (1998) 63 Cal.App.4th 426 .........................................................................................................13
Internat. Assn. of Cleaning & Dye House Workers v. Landowitz (1942) 20 Cal.2d 418 ..................................................................................................................21
Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868 ........................................................................................................13
McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436 ..........................................................................................................21
Mendoza v. County of Tulare (1982) 128 Cal.App.3d 403 ........................................................................................................17
Morris v. Harper (2001) 94 Cal.App.4th 52 ...........................................................................................................19
Nunn v. State (1984) 35 Cal.3d 616 ..................................................................................................................22
People ex rel. Stephens v. Seccombe (1930) 103 Cal.App. 306 ............................................................................................................20
People v. Badgett (1995) 10 Cal.4th 330 ...........................................................................................................15, 16
People v. Benson (1990) 52 Cal.3d 754 ....................................................................................................................9
People v. Brophy (1942) 49 Cal.App.2d 15 ............................................................................................................20
People v. Dekraai (2016) 5 Cal.App.5th 1110 .....................................................................................................8, 14
People v. Jenkins (2000) 22 Cal.4th 900 ...................................................................................................................9
People v. Lewis (2015) 240 Cal.App.4th 257 .......................................................................................................19
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TABLE OF AUTHORITIES (Continued)
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People v. Little (1997) 59 Cal.App.4th 426 .........................................................................................................19
Perrin v. Mountain View Mausoleum Assn. (1929) 206 Cal. 669 ....................................................................................................................20
Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865 .......................................................................................................21
Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155 .................................................................................................................19
Serrano v. Priest (1971) 5 Cal.3d 584 ..............................................................................................................10, 11
Van Atta v. Scott (1980) 27 Cal.3d 429 ..................................................................................................................20
Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223 .......................................................................................................19
Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241 ................................................................................................... 10, passim
Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194 ...........................................................................................................22
White v. Davis (1975) 13 Cal.3d 757 ..................................................................................................................16
Williams v. Garcetti (1993) 5 Cal.4th 561 ...................................................................................................................13
In re Wilson (1992) 3 Cal.4th 945 ...................................................................................................................10
Wirin v. Horrall (1948) 85 Cal.App.2d 497 ..........................................................................................................11
FEDERAL STATUTES
42 U.S.C. § 1983 ............................................................................................................15, 16, 17, 18
STATE STATUTES
Civil Code § 3369 ................................................................................................................19, 20, 21
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TABLE OF AUTHORITIES (Continued)
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Code of Civil Procedure § 526a ........................................................................................... 8, passim
Code of Civil Procedure § 1085 .................................................................................................18, 19
Code of Civil Procedure § 1086 .......................................................................................................21
Penal Code § 1054 ..................................................................................................................9, 19, 21
Penal Code § 4001.1 .............................................................................................................10, 19, 21
CONSTITUTIONAL PROVISIONS
First Amendment ..............................................................................................................................16
Fifth Amendment ...................................................................................................................9, 10, 16
Sixth Amendment .........................................................................................................................9, 16
Fourteenth Amendment ..........................................................................................................9, 10, 16
California Constitution Article 1, § 7 .....................................................................................9, 10, 18
California Constitution Article 1, § 15 .........................................................................................9, 18
OTHER AUTHORITIES
Anne Abramowitz, A Remedy for Every Right: What Federal Courts Can Learn from California’s Taxpayer Standing (2010) 98 Cal. L. Rev. 1595, 1608 ................................13
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-8- PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ DEMURRER
I. INTRODUCTION
Plaintiffs bring this action to vindicate their rights as taxpayers to end the use of public
money on illegal conduct by the Orange County Sheriff’s Department and District Attorney’s
Office. Defendants’ demurrer challenges Plaintiffs’ ability to end this illegal conduct using
California’s taxpayer standing statute, Code of Civil Procedure section 526a, and argues that
allowing Plaintiffs’ claims to proceed would violate public policy because it would involve
Plaintiffs and their counsel in every discretionary judgment call made by Orange County’s
prosecutors and law enforcement in the daily discharge of their duties. Defendants are wrong on
both the law and the facts.
This is not a case about the manner in which the Sheriff’s Department and District
Attorney’s Office have chosen to discharge their discretionary duties to investigate and prosecute
criminal cases, or about what discovery was, or was not, produced in a specific criminal
prosecution. This is a case about the Sheriff Department’s decision to create and run an
unquestionably unconstitutional Informant Program in Orange County’s jails while repeatedly
denying its existence, and the District Attorney’s Office’s decision to exploit and facilitate that
program and protect its secrecy at any cost. Defendants’ Informant Program has been well-
documented by numerous courts, all while Defendants continued to assert that there is no
Informant Program at all. (See, e.g., People v. Dekraai (2016) 5 Cal.App.5th 1110 (Dekraai).)
California’s Legislature has empowered Plaintiffs, as taxpayers and on behalf of the public
interest, to bring suit to end the expenditure of public funds on this illegal Informant Program.
At bottom, Defendants’ “standing” arguments are not challenges to the sufficiency of
claims pleaded on the face of the First Amended Complaint. Rather, they are an objection to the
existence of section 526a itself, and to the fact that the statute permits Defendants to be taken to
court, subjected to discovery, and held to account for their misconduct. But that grievance is with
the people of California and their elected representatives, not with Plaintiffs or this tribunal.
Defendants’ arguments are both meritless and not a proper basis for demurrer. The demurrer
should be overruled.
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II. STATEMENT OF THE CASE
Plaintiffs People for the Ethical Operation of Prosecutors and Law Enforcement
(P.E.O.P.L.E.), Bethany Webb, Theresa Smith, and Tina Jackson bring this action seeking redress
for Defendants’ violations of the Federal and California Constitutions, as well as state statutes.
Plaintiffs Smith and Jackson are members of P.E.O.P.L.E., an association of Orange County
residents and taxpayers founded to combat the illegal and unconstitutional conduct of the Orange
County District Attorney’s Office (“OCDA”) and Sheriff’s Department (“OCSD”). (First
Amended Complaint (“FAC”) ¶¶ 14-15, 20-25.) Plaintiff Webb is an Orange County taxpayer
who suffered because Defendants’ misconduct delayed justice in the trial of her sister’s murderer,
Scott Dekraai. (Id. ¶¶ 17-19.) As alleged in the FAC, Defendants for years have maintained
polices, practices, and customs that violate clearly established, non-discretionary constitutional
and statutory law designed to ensure the right to due process and the right to an attorney—
fundamental rights aimed at protecting the integrity of the criminal justice system itself.
First, Plaintiffs allege that the OCSD and OCDA routinely suppress evidence to which
accused individuals in criminal cases are entitled, including evidence contained in multiple
databases related to informants, in violation of the 5th and 14th Amendments to the United States
Constitution and the holdings in Brady v. Maryland (1963) 373 U.S. 83, and subsequent cases
(First Cause of Action); article 1, section 7 of the California Constitution (Second Cause of
Action);1 and Penal Code section 1054 (Third Cause of Action). (See, e.g., FAC ¶¶ 29(f), 49, 69,
74, 98-111, 133-147.)
Second, Plaintiffs allege that the OCSD and OCDA systematically use informants to elicit
incriminating information from represented individuals that is used against those individuals in
their criminal trials, in violation of the Sixth and Fourteenth Amendments to the United States
Constitution and the holdings in Massiah v. United States (1964) 377 U.S. 201, and subsequent
cases (Fourth Cause of Action); article 1, section 15 of the California Constitution (Fifth Cause of
1 See People v. Jenkins (2000) 22 Cal.4th 900, 950; People v. Benson (1990) 52 Cal.3d 754, 778.
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Action);2 and Penal Code section 4001.1, subdivision (b) (Sixth Cause of Action). (See, e.g., FAC
¶¶ 50, 55, 64-82, 148-159.)
Third, Plaintiffs allege that the OCSD and OCDA routinely use informants to coerce
information from accused individuals in their custody, often by threats of violence and even death,
and use the coerced information against those accused individuals in their criminal trials, in
violation of the Fifth and Fourteenth Amendments to the United States Constitution and the
holdings in Arizona v. Fulminante (1991) 499 U.S. 279, and subsequent cases (Seventh Cause of
Action); and article 1, section 7 of the California Constitution (Eighth Cause of Action). (See,
e.g., FAC ¶¶ 83-97, 160-167.)
Fourth, Plaintiffs allege that, in carrying out all of these violations, Defendants illegally
expend public funds, violating Code of Civil Procedure section 526a and vesting Plaintiffs with
standing to challenge Defendants’ policies, practices, and customs of violating the aforementioned
constitutional and statutory rights (Ninth Cause of Action). (See, e.g., FAC ¶¶ 89, 168-172.)
Plaintiffs originally brought this action in Orange County Superior Court. Defendants
removed to federal court, invoking federal question subject matter jurisdiction; the federal court
remanded the case back to this Court after determining that it lacked subject matter jurisdiction.
On remand, Defendants filed a demurrer, and Plaintiffs filed their FAC. Defendants then filed the
instant demurrer. All of the FAC’s allegations, which assert serious, ongoing constitutional and
statutory violations, must be taken as true at this stage of the litigation. (E.g., Serrano v. Priest
(1971) 5 Cal.3d 584, 591 (Serrano).)
III. ARGUMENT
A. Plaintiffs Have Taxpayer Standing to Challenge Defendants’ Use of Public Funds to Violate the Federal and California Constitutions
Defendants do not directly challenge Plaintiffs’ standing under Code of Civil Procedure
section 526a, which requires only that plaintiffs show that they pay taxes to the agency or
municipality whose spending they are challenging. (See Weatherford v. City of San Rafael (2017)
2 Cal.5th 1241, 1250 (Weatherford); Assem. Bill No. 2376, approved by Governor, Sept. 10, 2018
2 See In re Wilson (1992) 3 Cal.4th 945, 949.
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[expanding scope of actions permitted under section 526a following Weatherford decision].)
Instead, Defendants make two oblique attacks on Plaintiffs’ taxpayer standing: (1) that a taxpayer
suit is improper if there are other avenues through which the same or similar remedies could be
sought, and (2) that section 526a should not apply, as a matter of public policy, to lawsuits
alleging wrongdoing by law enforcement officials. (Demurrer, pp. 2-6.) Both contentions are
meritless.
1. Plaintiffs Allege Expenditure of Public Funds on Illegal Activity
Plaintiffs have properly alleged both payment of taxes and an unlawful use of funds in
connection with the ongoing, indisputably illegal, Informant Program. Merely “expending the
time” of government officials who are “performing illegal and unauthorized acts” constitutes an
unlawful use of funds that can be enjoined under section 526a. (Wirin v. Horrall (1948) 85
Cal.App.2d 497, 504-505; see also Serrano, supra, 5 Cal.3d at pp. 618-619.) Courts have found
taxpayer standing in precisely these circumstances: when a group of taxpayers seeks to prevent “a
government entity [from] engaging in ‘waste’ by implementing and maintaining a …. system that
violates [constitutional] rights.” (California DUI Lawyers Assn. v. California Dept. of Motor
Vehicles (2018) 20 Cal.App.5th 1247, 1251 (Cal. DUI Lawyers Assn.).)
Plaintiffs’ FAC contains sufficient facts to establish standing to challenge the OCDA and
OCSD’s illegal, unconstitutional, and wasteful conduct under section 526a. (FAC ¶¶ 14-25.)
Plaintiff Webb pays property taxes to Orange County. (Id. ¶ 17.) Plaintiff P.E.O.P.L.E. is an
association of Orange County residents that includes at least one member who pays property taxes
in Orange County. (Id. ¶ 14.) Plaintiffs Webb, Jackson, and Smith are resident in and pay sales
tax to Orange County. (Id. ¶¶ 17-25.) And while Defendants baldly assert that Plaintiffs “plead
no policy or practice of ‘waste’ to be remedied by the Court” (Demurrer, p. 10 [emphasis
removed]), that claim is demonstrably and obviously false. The FAC robustly alleges Defendants’
expenditure of governmental time and resources on the Informant Program, including specific
illegal and unauthorized acts pursuant to Defendants’ policies, practices and customs. (See, e.g.,
FAC ¶¶ 15, 18, 169-172.) These acts include cultivating confidential informants to participate in
the jailhouse Informant Program, placing informants in proximity to target criminal defendants to
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facilitate their interrogation without counsel, taking time off informants’ sentences in exchange for
the collection of incriminating statements, keeping detailed logs and databases of informant
movements and interactions with criminal defendants, and employing special government
personnel in the Special Handling Unit to maintain these records—to say nothing of Defendants
actually paying the informants taxpayer money as part of the illegal scheme. (Id. ¶¶ 29, 36-37, 39,
42, 47-48, 55, 72-73, 76, 81, 89.) OCSD deputies also have expended government time and
resources to lie under oath and shred documents in failed efforts to keep the Informant Program
and its records secret. (Id. ¶¶ 33, 59-60, 77.) Finally, the OCDA has unlawfully spent taxpayer
money by suppressing and/or failing to request evidence that could expose these violations, by
using the illegally-obtained information in criminal trials, and by refusing to produce related
favorable information to defense counsel. (Id. ¶¶ 35, 49-52, 69, 74, 78-80, 82.)
Contrary to Defendants’ assertion (Demurrer, p. 6), the availability of other plaintiffs or
avenues through which to challenge Defendants’ conduct is no bar to Plaintiffs bringing this
action. “This reasoning was rejected decades ago by the Supreme Court.” (Cal. DUI Lawyers
Assn., supra, 20 Cal.App.5th at p. 1263.) Distinguishing Animal Legal Defense Fund v.
California Exposition & State Fairs (2015) 239 Cal.App.4th 1286—on which the OCSD and
OCDA also rely (Demurrer, p. 6)—the Cal. DUI Lawyers Assn. court explained that the Supreme
Court has held that the availability of other, directly injured plaintiffs does not preclude a taxpayer
suit. (20 Cal.App.5th at p. 1263.) In fact, “limiting standing under section 526a by requiring only
actions involving parties with individual interests would undermine the purpose of section 526a,”
which is “‘to give a large body of citizens standing to challenge governmental actions.’” (Id.
(quoting Blair v. Pitchess (1971) 5 Cal.3d 258, 269 (Blair)).)
2. Taxpayer Standing Was Created for the Type of Claims Asserted Here, and Taxpayer Standing Does Not Violate Public Policy
Defendants’ argument that permitting taxpayer standing here would violate public policy is
both an improper basis for demurrer and simply incorrect. First, Defendants’ argument essentially
concedes that Plaintiffs have pleaded taxpayer standing, but asks this Court to determine that
section 526a should not apply here as a matter of policy, including “[c]onsiderations of volume,
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scope, and separation of powers.” (Demurrer, p. 5). That is not a proper basis for demurrer: a
demurrer may attack only the sufficiency of a complaint as pleaded, and a “court should only rule
on matters disclosed in that pleading.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d
868, 881; see also Harboring Villas Homeowners Assn. v. Superior Court (1998) 63 Cal.App.4th
426, 429 [“It is axiomatic that a demurrer lies only for defects appearing on the face of the
pleadings.”].)
Second, Defendants’ reliance on Weatherford, supra, 2 Cal.5th 1241, is misplaced.
Weatherford affirms that “we have always construed section 526a liberally ... in light of its
remedial purpose,” and that courts recognize only “explicit statutory limits” on section 526a
standing. (Id. at p. 1251.) Numerous courts have permitted taxpayer suits against a district
attorney or sheriff, (see, e.g., Williams v. Garcetti (1993) 5 Cal.4th 561; Blair, supra, 5 Cal.3d
258), and Weatherford does nothing to limit the scope of taxpayer standing in such suits.
Indeed, Weatherford actually expands taxpayer standing by holding that section 526a does
not require payment of property tax. (Supra, 2 Cal.5th at p. 1252.) Subsequent legislation in 2018
further enlarged the scope of section 526a, increasing both the kinds of taxes that qualify and the
agencies and individuals that can be sued. (Assem. Bill No. 2376, supra; see also FAC ¶¶ 14-25
[alleging that all Plaintiffs pay taxes that confer section 526a standing pursuant to the statute’s
amendment].) This recent legislative expansion underscores that California’s public policy favors,
rather than forecloses, this lawsuit. It also undermines Defendants’ argument that permitting this
lawsuit to proceed would open the “flood gates” to similar lawsuits that were never intended to be
covered by section 526a (an argument that, in any event, is entirely unfounded). (See Anne
Abramowitz, A Remedy for Every Right: What Federal Courts Can Learn from California’s
Taxpayer Standing (2010) 98 Cal. L. Rev. 1595, 1608 [“One of the rationales behind restrictive
taxpayer standing doctrine is that granting such standing would lead to a flood of lawsuits in
federal court. The statistics concerning taxpayer suits in California show that this fear is
unfounded, as taxpayer suits constitute a negligible fraction of all civil suits filed in California.”].)
Defendants also claim that allowing taxpayer standing in this case would result in
voluminous discovery that would be subject to a “staggering number of privilege claims,” and that
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would not otherwise be available to individual criminal defendants. (Demurrer, pp. 5-6.) First,
like Defendants’ appeal to public policy, this is an inappropriate argument on demurrer.3 Second,
Defendants’ assertion simply assumes that their claims of privilege are correct and will be
sustained. That is not the case. But, again, that is an issue for discovery motion practice, not a
demurrer. The same is true for Defendants’ argument regarding a criminal defendant or crime
victim’s access to files from other cases: it is both incorrect and entirely immaterial to a demurrer.
Defendants’ policy arguments reflect their attempt to misrepresent the scope of this case
throughout their demurrer. This is not a case where Plaintiffs as taxpayers are seeking to get
involved in one or more criminal cases—past, ongoing, or future. This is an independent civil
lawsuit brought by taxpayers to end Defendants’ illegal use of public money on an
unconstitutional Informant Program. Far from seeking to intervene in discretionary prosecutorial
decisions or remedy past personal rights violations, the relief Plaintiffs seek is solely prospective:
to end this illegal program and its waste of taxpayer dollars, and to obtain an order from the Court
that prevents the program from continuing or repeating.
As the Court of Appeal has already recognized with regard to this specific Informant
Program, “[t]he magnitude of the systemic problems cannot be overlooked.” (Dekraai, supra, 5
Cal.App.5th at p. 1149.) This case is a systemic challenge seeking systemic change. Defendants’
suggestion that the only proper challenge to the Informant Program must come through individual
criminal cases is nonsensical: criminal courts cannot order the systemic reform that Plaintiffs seek
and that is so clearly required within Orange County law enforcement. Instead, taxpayer suits
provide an effective vehicle for these kinds of fundamental challenges—indeed, it is exactly what
the doctrine was designed to do. Cal. DUI Lawyers Assn., supra, 20 Cal.App.5th at pp. 1260-
1261 [“Cases that challenge the legality or constitutionality of governmental actions fall squarely
within the purview of section 526a.”].)
3 To the extent that Defendants’ alleged “privilege” claims are in fact about protecting safety and personally identifying information, Plaintiffs agree with those concerns and are willing to work with Defendants to craft a protective order that addresses them. Further, Defendants’ concerns about the scope of discovery can be addressed with the appointment of a special master or discovery referee. Such concerns simply are not grounds for demurrer.
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B. Plaintiffs’ Claims Are Timely
Defendants assert that Plaintiffs’ claims are barred by applicable two- or three-year statutes
of limitations because Plaintiffs knew or should have known of their claims by at least February
2015. (Demurrer, pp. 7-9.) This argument fails because Plaintiffs allege ongoing constitutional
and statutory violations and seek prospective equitable relief—not damages for past injuries. Such
allegations are subject to two exceptions to the statute of limitations: “continuing violations” and
“continuous accrual.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.) A
continuing violation is “a pattern of reasonably frequent and similar acts” that is treated as “an
indivisible course of conduct actionable in its entirety.” (Id. at p. 1198.) Continuous accrual
“applies whenever there is a continuing or recurring obligation” such that “‘a cause of action
accrues each time a wrongful act occurs, triggering a new limitations period.’” (Id. at p. 1199.)
Plaintiffs’ allegations fit both exceptions. Plaintiffs allege that Defendants are engaged in
a pattern of frequent, similar conduct in violation of criminal defendants’ constitutional and
statutory rights through the operation of the Informant Program. Plaintiffs have provided specific
examples ranging from the Payton case in 1980 to the Garcia case in 2018. (E.g., FAC ¶¶ 46-48,
65-69, 80, 94-96, 99-106, 133-136.) Plaintiffs also have clearly alleged that the OCDA and
OCSD are continuing to operate under policies, practices, and customs that violate the U.S. and
California Constitutions and California statutory law. (Id. ¶¶ 6, 11, 28-29, 34-35, 74, 86, 98-99,
106, 111-113, 123-137, 139-172.) Not only have Defendants committed continuing violations
within the limitations period—they are continually breaching their obligations under the law,
triggering new limitations periods each time. Indeed, Defendants continue to publicly insist that
there is no Informant Program at all—undermining their claim that Plaintiffs should have known
earlier about a hidden program they continue to conceal.
C. Plaintiffs Have Stated Claims Under Section 1983
Defendants have separate sections in their demurrer dedicated to Plaintiffs’ federal Brady,
Massiah, and Fulminante claims on both standing and merits issues, but each section boils down
to the same argument: that Plaintiffs have not alleged a personal rights violation. (Demurrer, pp.
2-3, 11-13.) Defendants characterize Plaintiffs’ section 1983 claims as “direct,” and cite People v.
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Badgett (1995) 10 Cal.4th 330, 343-344 (Badgett), for the proposition that Plaintiffs lack standing
to bring section 1983 claims because third parties cannot raise the Fifth and Sixth Amendment
rights of others, and that instead, they must “demonstrate their personal rights have been violated.”
(Demurrer, p. 2.) Defendants then repeat their standing argument as a “merits” argument, citing
Gibson v. United States (9th Cir. 1986) 781 F.2d 1334, 1338 (Gibson)—which provides the
elements of a section 1983 claim against an individual defendant—as proof that Plaintiffs’ claims
fail because Plaintiffs have not alleged personal rights violations. (Demurrer, p. 11.)4
Defendants’ arguments misstate the relevant law and cite cases that simply miss the point.
First, Badgett does not stand for the proposition that taxpayers lack standing to bring section 1983
claims challenging governmental policies, practices, and customs of intentionally violating
criminal defendants’ Fifth and Sixth Amendment rights. In fact, Badgett does not even stand for
the proposition that a party cannot raise the Fifth and Sixth Amendment rights of others—rather,
the Supreme Court in Badgett acknowledged that criminal defendants do have standing to bring
such claims as part of their due process trial rights. (Badgett, supra, 10 Cal.4th at 344-345.) But
more importantly, Badgett is irrelevant here because, unlike Badgett, Plaintiffs are not individual
criminal defendants seeking to prevent the government from offering the involuntary testimony of
another person. This is a taxpayer case, and numerous California courts have heard taxpayer suits
challenging government policies, practices, customs, and actions that violate federal constitutional
rights—including taxpayer suits asserting section 1983 claims—without requiring the plaintiffs to
allege personal rights violations. (E.g., White v. Davis (1975) 13 Cal.3d 757, 762-763
[considering First Amendment claim brought via taxpayer standing]; Blair, supra, 5 Cal.3d at pp.
264-265 [considering Fourth, Fifth, and Fourteenth Amendment claims brought via taxpayer
standing even though the plaintiffs did not allege that they personally suffered under the
unconstitutional government action]; Cal. DUI Lawyers Assn., supra, 20 Cal.App.5th at pp. 1257-
61 & fn. 1 [considering Fourteenth Amendment constitutional claims under 42 U.S.C. § 1983,
4 Defendants also claim, without a shred of legal support, that because criminal defendants who are acquitted cannot raise Brady claims, Plaintiffs must not be able to make those claims here. (Demurrer, pp. 11-12).
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brought via taxpayer standing]; Mendoza v. County of Tulare (1982) 128 Cal.App.3d 403, 407,
415 [considering constitutional claims under 42 U.S.C. § 1983, brought via taxpayer standing].)
Second, Defendants’ demurrer ignores that this suit does not assert “direct” section 1983
claims against individual defendants for the one-time violation of Plaintiffs’ own trial rights—
instead, Plaintiffs have brought Monell claims challenging Defendants’ unconstitutional policies,
practices, and customs of intentionally violating the constitutional rights of criminal defendants
through their confidential Informant Program. (See FAC ¶¶ 28-29; see also Monell v. Department
of Social Services of City of New York (1978) 436 U.S. 658, 690 [Section 1983 claim will lie
where plaintiff alleges “unconstitutional implement[ion] or execut[ion of] a policy statement,
ordinance, regulation, or decision officially adopted and promulgated.”].) As Gibson (cited in
Demurrer at p. 11) itself makes clear, the analysis for Monell claims is different from that for
direct section 1983 claims against individual defendants. (Gibson, supra, 781 F.2d at pp. 1337-
1338.) Quoting Harris v. City of Roseburg (9th Cir. 1981) 664 F.2d 1121, 1130, the Gibson court
noted that “‘the meaning of Monell [encompasses situations] where a municipality ‘impliedly or
tacitly authorized, approved, or encouraged’ illegal conduct by its police officers.’” (781 F.2d at
pp. 1337-1338.) Courts routinely recognize a plaintiff’s ability to challenge unconstitutional
policies, practices, and customs that violate the constitutional rights of criminal defendants
through section 1983 suits. (See, e.g., Lisker v. City of Los Angeles (9th Cir. 2015) 780 F.3d 1237,
1241 [Monell claim based on alleged policies and practices of Brady violations].)5
Plaintiffs allege that Defendants’ ongoing policies, practices, and customs result in the
repeated violation of criminal defendants’ trial rights in Orange County. Specifically, Defendants
operate an unconstitutional jailhouse Informant Program that targets criminal defendants even if
they are represented by counsel, uses informants known to threaten violence in obtaining
confessions, and uses coerced confessions against criminal defendants at trial (FAC ¶¶ 50, 64-74,
76, 80-82, 84-97), and thereby have “tainted numerous cases—the precise number is yet unknown,
5 Defendants also cite numerous federal cases that are wholly irrelevant for two interrelated reasons: they (1) concern Article III standing requirements not present here and (2) address whether defendants had standing to bring individual section 1983 claims. (Demurrer, pp. 11-12.) The cases simply say nothing about California state standing for Monell actions.
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and that uncertainty is part of the reason this lawsuit is necessary.” (Id. ¶ 7.) The FAC also
alleges that Defendants conceal this program and related evidence from criminal defendants in
violation of their obligations under the Constitution and Brady. (Id. ¶¶ 49-52, 62-63, 69, 74, 98-
110.) These allegations identify, among others, Scott Dekraai, Leonel Vega, Derek Adams, Luis
Vega, Henry Rodriguez, Jose Derosas, Joseph Govey, and Nuzzio Begaren, as being involved in
criminal cases actually affected by Defendants’ unconstitutional conduct. (Id. ¶¶ 65-69, 80, 94-96,
99-106.) Plaintiffs have properly pleaded a claim for unconstitutional policies, practices, and
customs under Monell.
D. Plaintiffs Have Properly Asserted California Constitution Claims
Plaintiffs also have brought corresponding civil rights claims under the California
Constitution, article 1, sections 7(a) and 15, through taxpayer and public interest standing. (FAC
¶¶ 12, 14-25, 138-142, 152-155, 164-167.) Notwithstanding the fact that California’s due process
rights are more expansive than those in the United States Constitution (420 Caregivers, LLC v.
City of Los Angeles (2012) 219 Cal.App.4th 1316, 1342), Defendants make the same arguments
against Plaintiffs’ California Constitution claims as they do against the Section 1983 claims:
Plaintiffs’ claims fail because they have not suffered personal rights violations. (Demurrer, pp. 2-
3, 13-14.)
Plaintiffs have adequately pleaded violations of the California Constitution. (See, e.g.,
FAC ¶¶ 138-142, 152-155.) Just as with Plaintiffs’ federal constitutional claims, Plaintiffs’ claims
under the California Constitution do not have to be based on personal rights violations. “[U]nlike
the federal Constitution, [California’s] state Constitution has no case or controversy requirement
imposing an independent jurisdictional limitation on [state] standing doctrine.” (Weatherford,
supra, 2 Cal.5th at pp. 1247-1248.) California courts thus hear taxpayer cases that bring state
constitutional claims regardless of whether the plaintiff alleged a personal rights violation. (E.g.,
Blair, supra, 5 Cal.3d at p. 269.)
E. Plaintiffs Have Standing Under Section 1085 to Receive a Writ of Mandate to Enforce Non-Discretionary Statutory Duties
In their Third and Sixth Causes of Action, Plaintiffs seek a writ of mandate pursuant to
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Code of Civil Procedure section 1085 to enforce Penal Code sections 1054 and 4001.1,
subdivision (b).6 (FAC ¶¶ 143-147, 156-159.) “A writ of mandate may be issued by any court to
any inferior tribunal, corporation, board, or person, to compel the performance of an act which the
law specially enjoins, as a duty resulting from an office, trust, or station ....” (Code Civ. Proc.,
§ 1085, subd. (a).) “Under this section, mandate will lie to compel performance of a clear,
present, and usually ministerial duty.” (Morris v. Harper (2001) 94 Cal.App.4th 52, 58.)
Penal Code sections 1054 and 4001.1 impose “clear, present, and ... ministerial dut[ies]”
on Defendants. Both sections prescribe, in absolute terms, actions that prosecutors and law
enforcement must or cannot take. Penal Code section 4001.1, subdivision (b), prohibits law
enforcement agencies and in-custody informants acting as agents for law enforcement from taking
any action “beyond merely listening to statements of a defendant” to elicit incriminating remarks.
Penal Code section 1054 et seq. guarantees due process by setting forth mandatory, unambiguous
requirements for disclosing evidence in criminal cases, including what evidence must be disclosed
and the timeline on which it must be disclosed. The code’s plain language and interpreting
authority make clear that the duty is mandatory, not discretionary. (See, e.g., People v. Lewis
(2015) 240 Cal.App.4th 257, 266 [“[W]e are unconvinced by the prosecution’s insistence that it
had no obligation to reveal any information related to Switzer’s misconduct. California’s criminal
discovery statutes require the prosecution to disclose ‘[a]ny exculpatory evidence’ to the defense
[citation]. . . .”], italics added; People v. Little (1997) 59 Cal.App.4th 426, 432 [“Section 1054.1
concisely lists six specific items that the prosecution must disclose to the defendant or his or her
attorney, and, consistent with the stated purposes of discovery provisions of Proposition 115, the
prosecution has a duty to inquire in order to satisfy these requirements.”], italics added.)
Defendants rely heavily on Dix v. Superior Court (1991) 53 Cal.3d 442 (Dix), Leider v.
Lewis (2017) 2 Cal.5th 1121 (Leider), and Civil Code section 3369 to argue that Plaintiffs cannot
use a writ of mandamus to enforce any mandatory duty codified in the Penal Code. (Demurrer, 6 Plaintiffs also have standing to pursue a writ of mandate as taxpayers via section 526a. “[T]axpayer standing has been extended to actions for declaratory relief, mandamus and, in some circumstances, damages.” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240, italics added, disapproved on other grounds by Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155.)
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pp. 3, 14-15.) Defendants misunderstand the law. Neither Dix nor Leider nor any related cases
involved enforcement of mandatory statutory duties. Leider merely stands for the common sense
proposition that a private individual cannot prosecute another individual for commission of a
crime through a civil action. (Supra, 2 Cal.5th at pp. 1130-1136.7) The Dix court explicitly
recognized the ability of plaintiffs to bring taxpayer actions about criminal justice issues, and
stated that its decision posed no bar to such actions. (Dix, supra, 53 Cal.3d at p. 454, fn. 7
[“[N]othing we say here affects independent citizen-taxpayer actions raising criminal justice
issues.”], original italics [citing Civ. Proc. Code, § 526a]; Van Atta v. Scott (1980) 27 Cal.3d 429,
447-452.)8 And although Defendants appear to argue that Civil Code section 3369’s reference to
enforcement of “a penal law” means that no writ may be premised on any law codified in the
Penal Code (Demurrer, pp. 3, 14), the rule codified in section 3369 “is but the expression of the
fundamental rule that courts of equity are not concerned with criminal matters and they cannot be
resorted to for the prevention of criminal acts, except where property rights are involved.” (Perrin
v. Mountain View Mausoleum Assn. (1929) 206 Cal. 669, 671, italics added [citing 5 Pomeroy’s
Equity Jurisprudence (2d ed. 1919) pp. 4291-4292].) Obviously, Plaintiffs are not seeking to
prosecute the OCDA and OCSD for the commission of crimes. (See also People v. Brophy (1942)
49 Cal.App.2d 15, 32 [section 3369 “applies where the acts complained of constitute merely a
crime or series of crimes.”] [citing People ex rel. Stephens v. Seccombe (1930) 103 Cal.App. 306,
314].) And the mere location of the statute in a particular code is not determinative of whether a
7 These cases and Civil Code section 3369 are grounded in several concerns, none of which is applicable here. First, the courts were concerned about allowing civil actions to prevent criminal conduct to proceed as nuisance suits because of the vagueness of nuisance cases. (2 Cal.5th at pp. 1130-1131.) Second, allowing enforcement of criminal law through a civil action would deprive a defendant of their constitutional right to a jury trial. (Id. at p. 1131.) Third, doing so would make defendants liable under a lower standard of proof than during a criminal trial. (Ibid.) Fourth, defendants could then be prosecuted and exposed to similar punishments under criminal law. (Ibid.) 8 Also instructive is Bradley v. Lacy (1997) 53 Cal.App.4th 883 (Bradley). There, a taxpayer petitioned for a writ of mandate ordering the district attorney to comply with a Government Code section that requires district attorneys to commence prosecution following a grand jury indictment. (Id. at p. 887.) Like Plaintiffs here, the taxpayer in Bradley had no evident connection to the indictment at issue (ibid.), and the court recognized the district attorney’s broad discretion in criminal matters generally (id. at pp. 890-892). Nevertheless, the court looked to the text of the relevant code provision, determined that it created a non-discretionary duty, and ordered that a writ be issued against the district attorney. (Id. at pp. 887-895.)
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law is a penal law. (E.g., Internat. Assn. of Cleaning & Dye House Workers v. Landowitz (1942)
20 Cal.2d 418, 421 [concluding that an ordinance in San Francisco’s Cleaning and Dyeing Code
was “a penal law” for purposes of Civil Code section 3369 because violating the ordinance was a
misdemeanor and the ordinance provided for the imposition of fines or imprisonment or both].)
Although Code of Civil Procedure section 1086 normally requires petitioners to have a
“beneficial interest” in the enforcement of the non-discretionary duty, “‘where the question is one
of public right and the object of the mandamus is to procure the enforcement of a public duty, the
relator need not show that he has any legal or special interest in the result, since it is sufficient that
he is interested as a citizen in having the laws executed and the duty in question enforced.’”
(Board of Social Welfare v. County of Los Angeles (1945) 27 Cal.2d 98, 100-101 [quoting 35 Am.
Jurisprudence 73, p. 76, § 322].) “‘When the duty is sharp and the public need weighty, the courts
will grant a mandamus at the behest of an applicant who shows no greater personal interest than
that of a citizen who wants the law enforced.’” (Reynolds v. City of Calistoga (2014) 223
Cal.App.4th 865, 875 [quoting McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d
436, 440].) Plaintiffs allege decades of discovery violations and informant misuse. (See, e.g.,
FAC ¶¶ 2-11.) Defendants’ failure to comply with their mandatory statutory duties has
undermined the public’s faith in the OCDA and OCSD and in their ability to pursue and achieve
justice. (Ibid.) The public interest in mandating that Defendants comply with their mandatory
statutory duties, therefore, is significant; Plaintiffs have amply alleged a strong public interest in
enforcing the statutes in question.9
9 Defendants argue that a “public right exists only when expressly established by the Legislature,” (Demurrer, p. 4, fn.1), but they misread the cases on which they rely. Indeed, Doe v. Albany Unified School District (2010) 190 Cal.App.4th 668, 683, stands for the very opposite of what Defendants have claimed. After its discussion of the beneficial interest standard, the Doe court recognized the breadth of the public interest exception. (Id. at p. 685 [“This public interest exception ‘promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right.’”].) And Defendants’ other case simply does not stand for the proposition that the legislature must “expressly establish” a public right. Here, the rights established by Penal Code sections 4001.1 and 1054 apply to every single person living in the state; surely the sanctity of such universal procedural protections central to the functioning of our criminal justice system as a whole is a matter of statewide concern.
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Finally, Defendants assert that Plaintiffs’ claims “do not identify a clear and present duty
owed by OCSD and the OCDA to Plaintiffs.” (Demurrer, p. 15 (emphasis added).) But
Defendants again misunderstand the law. The “clear and present duty” requirement for mandamus
asks only whether, as a matter of statutory construction, a statute creates an obligation on the part
of the government to engage in or abstain from certain conduct. (See Bradley, supra, 53
Cal.App.4th at p. 889 [“‘Whether a particular statute is intended to impose a mandatory duty is a
question of [statutory] interpretation.’”] [quoting Nunn v. State (1984) 35 Cal.3d 616, 624]; Weiss
v. City of Los Angeles (2016) 2 Cal.App.5th 194, 201, review denied Nov. 22, 2016 [“Based on
the language of section 40215, subdivision (a) and relevant legislative history, we hold ... that the
City is required to” comply with the section].) Defendants cite no authority for the proposition
that the required “duty” must be owed to a particular person to merit a writ of mandamus.
IV. CONCLUSION
For the reasons set forth above, the Court should overrule Defendants’ demurrer to
Plaintiffs’ First Amended Complaint in its entirety.
DATED: November 26, 2018 ACLU FOUNDATION OF SOUTHERN CALIFORNIA AMERICAN CIVIL LIBERTIES UNION FOUNDATION MUNGER, TOLLES & OLSON LLP
By: /s/ Jacob S. Kreilkamp JACOB S. KREILKAMP
Attorneys for Plaintiffs
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39430236.1 -1- PROOF OF SERVICE
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 350 South Grand Avenue, Fiftieth Floor, Los Angeles, CA 90071-3426.
On November 26, 2018, I served true copies of the following document(s) described as:
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ DEMURRER TO AMENDED COMPLAINT
on the interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY ELECTRONIC SERVICE: I served the document(s) on the persons listed in the Service List by submitting an electronic version of the document(s) to One Legal, LLC, through the user interface at www.onelegal.com.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on November 26, 2018, at Los Angeles, California.
/s/ Julia A. Muhammad JULIA A. MUHAMMAD
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39430236.1 -2- PROOF OF SERVICE
SERVICE LIST Case No.: 30-2018-00983799-CU-CR-CXC
Leon J. Page [email protected] Wendy J. Phillips [email protected] Rebecca S. Leeds [email protected] D. Kevin Dunn [email protected] Carolyn M. Khouzam [email protected] OFFICE OF THE COUNTY COUNSEL 333 W. Santa Ana Blvd. Suite 407 Santa Ana, CA 92701 Tel. No.: (714) 834-3300 Fax No.: (714) 834-2359
Defendants
