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Decaprio v. City of Berkeley


June 3, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


Defendants City of Berkeley, Berkeley Police Department (BPD), City of Berkeley Public Works, Captain Doug Hambleton, Officer Spencer Fomby, Officer Jessyca Nabozny and Gregory Daniels (collectively, Defendants) move for summary adjudication of Plaintiff Steven DeCaprio's claims against them. Plaintiff, appearing pro se, opposes the motion, and cross-moves for summary judgment in his favor, for a preliminary injunction, and to continue the summary judgment hearing until after the close of fact discovery. Defendants oppose the motions. In addition, Plaintiff has filed a motion to add as additional parties Sergeant Curtin, Sergeant Kelly Gordon, Officer Torrence and Officer Mah; to add additional claims for deprivation of Plaintiff's rights under the First and Fourth Amendments, in violation of 42 U.S.C. § 1983; and to supplement his pleadings. Defendants oppose this motion. Plaintiff also filed a second motion to continue the summary judgment motions in order to allow him to supplement his pleadings. That motion was filed on April 18, 2005 and purportedly noticed for hearing on April 22, 2005, but Plaintiff did not file a written stipulation or a motion to shorten time as required by Local Rule 6-1(b). Thus, no opposition to that motion is required and Defendants have not filed one.

The Court finds the parties' motions for summary judgment appropriate for decision without oral argument as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78. See also Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998), (noting that district court may decide summary judgment issues without oral argument if parties have opportunity to submit written materials) (citing Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991) cert. denied, 503 U.S. 920 (1992)). Accordingly, the matter was taken under submission on the papers.

Having considered all of the papers filed by the parties, the Court grants Defendants' motion for summary judgment, and denies Plaintiff's motions.


The factual issues in the case are undisputed, unless otherwise noted. Plaintiff's complaint arises out of his claim to a house at 1634 62rd Street in Berkeley, California. The residence was owned by George and Essie Thomas, who died in 1981 and 1988, respectively. On March 13, 2004, Plaintiff entered and occupied the empty residence. He claimed title on grounds of his occupancy, pursuant to California Civil Code § 1006, which provides that occupancy "for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession."

On April 29, 2004, Doris Anderson contacted the Berkeley Police Department and reported to Defendant Officer Fomby that she was having a problem with trespassers entering the residence. She told Officer Fomby that, although the title to the residence was in the name of her deceased parents, the Thomases, "she was in the process of having title transferred to her name." Fombly Decl. ¶ 4.*fn1 Officer Fomby checked BPD records and found two form letters, dated December 2, 2002 and April 5, 2004, submitted by Ms. Anderson requesting police to enforce trespassing laws at the residence. He checked Win2Data, a web-based data bank for real property, and found that the owner of the residence was "Thomas Geo H & E," whose address was listed as 1332 Kains Ave., "C/O Doris J. Anderson." Fomby Decl., Ex. B, Win2Data Property Information. BPD records also showed that a citizen had reported that boards were being removed from the residence on April 13, 2004; an officer investigated the property and met Plaintiff, who identified himself by name. Id., Ex. C, April 14 Police Report. BPD records also showed that a neighbor reported possible trespassers on April 16.

Officer Fomby met with Ms. Anderson at the property on April 29 with her handyman to reboard the doors and windows and post a "no trespassing" sign. The next day, a neighbor reported that "someone broke into the rear" of the residence. Fomby Decl., Ex. E, April 30, 2004 Communications Incident Lister.

On May 1, another neighbor reported that people were taking down the boards and the no-trespassing sign. Fomby Decl., Ex. F, May 1, 2004 Communications Incident Lister. According to the police report, Plaintiff identified himself to police as a "property manager" for George Thomas and claimed that he was paying taxes on the property and was entitled to occupy it, but had no other paperwork to support his claim of ownership or tenancy. Id., Ex. F at 2. Plaintiff and two of his friends were removed by Berkeley police officers acting on the authority of a "No Trespassing Letter" signed by Ms. Anderson.*fn2 Plaintiff was advised to contact the City Manager's Office regarding his claim. Id.

On May 4, and again on June 3, Plaintiff filed an application in Alameda County Superior Court for a temporary restraining order (TRO) against Ms. Anderson, on behalf of himself and two housemates.*fn3 Plaintiff represented in his application that Ms. Anderson had "for the purpose of harassment, filed a fraudulent letter of no trespass . . . after plaintiff had established tenancy." Defs.' Req. Jud. Notice, Ex. E, May 4, 2004 Petition for Injunction Prohibiting Civil Harassment at 2. On June 21, 2004, the Alameda Superior Court issued the TRO, which required that Ms. Anderson stay at least ten yards away from Plaintiff and the house. Plaintiff did not serve this TRO on Ms. Anderson.

On July 14, 2004, Defendant Officer Jessyca Nabozny responded to a call for service at the residence, complaining about juveniles and drugs on the property (apparently, no drugs or juveniles were found). After Officer Nabozny arrived at the residence, a neighbor complained that a van had been parked in front of the property for a lengthy period of time. Neighbors told her that the car belonged to people staying "illegally" at the residence. The van belonged to Plaintiff, although at the time Officer Nabozny did not know the identity of the owner.

She asked another officer to check the van's license records, and was informed that there was "no registration of owner information on file." Nabozny Decl. ¶ 3. Believing the vehicle was unregistered, Officer Nabozny had Plaintiff's vehicle towed. BPD later concluded that the information provided to Officer Nabozny was in error. The van was released to Plaintiff on July 16, and BPD paid the towing fee.

On July 27, Officer Fomby responded to a report of a burglary in process at the residence. When he arrived, Officer Crews told him that Plaintiff was using a crowbar to remove boards from the windows. Plaintiff was detained and handcuffed. Plaintiff made several inconsistent statements. He showed Officer Fomby a utility bill addressed to "George Thomas c/o Steven DeCaprio," and asserted that he had an "arrangement with George Thomas." Fomby Decl., Ex. I, BPD Supplemental Report at 4. Yet he also informed the officer that he was in the process of taking over the house through adverse possession, and that he had a restraining order against Ms. Anderson. Plaintiff admitted that he had changed the locks and removed the notrespassing sign. The house was searched without Plaintiff's consent. Afterwards, Plaintiff was released and allowed to remove his personal property. Plaintiff was told that there was insufficient evidence to support an arrest. However, Officer Fomby did cite Plaintiff for violation of California Penal Code § 602.5(a), unlawful entry into a residence. A criminal records check later revealed a report that Plaintiff was a suspect in a breaking and entering the previous year at another vacant dwelling. Fomby Decl., Ex. J, July 30, 2003 BPD Supplemental Report.

On August 6, Plaintiff applied to the Alameda County Superior Court for reissuance of the TRO against Ms. Anderson. The hearing was set for August 27, 2004. Ms. Anderson did not appear at the hearing, although this time she was served. At the hearing, the judge found that Plaintiff's allegations against Ms. Anderson did not qualify as civil harassment. The matter was dismissed and the TRO was dissolved.

Officer Fomby received an August 6, 2004 letter from Ms. Anderson enclosing copies of her previous years' property tax payments. Later, her lawyer wrote to the BPD explaining that he had been engaged to transfer the title of the property to the Thomases' heirs.

On August 13, 2004, a neighbor again called to report Plaintiff attempting to pry boards off the property. When BPD officers arrived, Plaintiff was attempting to remove a board that had a "No Tresspassing" sign on it. Plaintiff again asserted that he owned the property, and presented a photocopy of a "Homestead" application filed with the Alameda County Recorder's office. BPD officers cited Plaintiff again, this time for violation of Berkeley Municipal Code (BMC) § 13.52.010. Both of the citations were later dismissed by Alameda County Superior Court, although the reason for this does not appear in the record.

On December 28, 2004, Ms. Anderson was appointed administrator of Essie Thomas' estate. See Defendants' Request for Judicial Notice, Ex. F, Letters (Probate) of Administration with Will Annexed. As such, she may now administer the estate "with full authority." Id. at 1. According to the Letters (Probate) of Administration, there are three surviving beneficiaries of Ms. Thomas' will, including Ms. Anderson and two grandsons.


Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.

Where the moving party bears the burden of proof on an issue at trial, it must, in order to discharge its burden of showing that no genuine issue of material fact remains, make a prima facie showing in support of its position on that issue. See UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. See id.; see also Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). Once it has done so, the non-moving party must set forth specific facts controverting the moving party's prima facie case. See UA Local 343, 48 F.3d at 1471. The non-moving party's "burden of contradicting [the moving party's] evidence is not negligible." Id. This standard does not change merely because resolution of the relevant issue is "highly fact specific." See id.


Defendants and Plaintiff move for summary adjudication of the complaint's claims under 42 U.S.C. § 1983: (1) violation of the Fourth Amendment based on the July 27 search of the residence and the July 14 seizure of Plaintiff's car and the residence; (2) denial of the Fifth and Fourteenth Amendments' guarantee of due process based on the May 1, July 27 and August 13 seizures of the residence; and (3) denial of equal protection based on Defendants' failure to enforce the TRO. Defendants argue, inter alia, that the undisputed evidence is insufficient to establish a claim against them.

I. Fourth Amendment Violations

The Fourth Amendment proscribes "unreasonable searches and seizures." U.S. Const. amend. IV. The ultimate test of reasonableness requires the court to balance the governmental interest that justifies the intrusion and the level of intrusion into the privacy of the individual. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496 (9th Cir. 1996). The Fourth Amendment generally prohibits warrantless searches or seizures without probable cause or reasonable suspicion. United States v. Sparks, 265 F.3d 825 (9th Cir. 2000). A "seizure" of property occurs whenever "there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113 (1984). Probable cause exists "where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed . . . ." Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979). Absent probable cause, an officer may initiate an investigative stop of an individual upon a reasonable suspicion that criminal activity is taking place. Terry v. Ohio, 392 U.S. 1 (1968).

Defendants argue that Plaintiff has admitted to being a trespasser, and therefore had no reasonable expectation of privacy in the residence. It is true that Plaintiff has not met the requirements for establishment of adverse possession, which include five years of continuous occupancy. Cal. Civ. Proc. Code § 325. However, Plaintiff did not admit that he was trespassing, but claimed title as an occupier pursuant to California Civil Code § 1006. See generally People ex rel. Dept. of Public Works v. Shasta Pipe and Supply Co., 264 Cal. App. 2d 520, 532-36 (1968) (applying § 1006 and observing that it codified the common law rule "that possession gives rise to a presumption of ownership that must prevail in the absence of any other evidence of title").

Nevertheless, Defendants had probable cause to believe that Plaintiff's claim to the property was inferior to Ms. Anderson's, and as a result probable cause existed for BPD officers' May 1 removal of Plaintiff from the property and Officer Fomby's July 27 decision to detain and cite Plaintiff for trespass and to search the house.*fn4 Ms. Anderson, an heir to the property, had twice contacted BPD to enforce trespass laws at the residence, in 2002 and 2004. Her name was associated with the property in the Win2Data property databank. Plaintiff, in contrast, made inconsistent statements, including that he was attempting to gain the property through adverse possession and that he had an arrangement with George Thomas, who had been deceased since 1981. Defendants had reasonable grounds to conclude that Plaintiff's claim to title, as an occupier, was insufficient against that of Ms. Anderson, a daughter of the former owners, whose claim to the title was by will or succession. Defendants therefore had probable cause to believe that Plaintiff was violating Penal Code § 602.5 and to enforce the law pursuant to Ms. Anderson's requests.

Plaintiff was cited again on August 13 for violation of BMC § 13.52.010.*fn5 According to the police report, Plaintiff was in the process of attempting to remove the "No Trespassing" board over door of the residence. Therefore, this citation was also supported by probable cause.

Plaintiff's argument that no probable cause existed because the citations were later dismissed is unavailing. The later dismissal of charges does not show that probable cause did not exist. See Baker v. McCollan, 443 U.S. 137 (1979) (noting that if only the guilty could be legally arrested, "§ 1983 would provide a cause of action for every defendant acquitted--indeed, for every suspect released").

Similarly, Officer Nabozny had probable cause to seize Plaintiff's van. A neighbor had complained that the van had been parked for a long time, and the officer was informed that the van had no registration records. Therefore, she had probable cause to tow the vehicle, and was authorized to do so by California Vehicle Code § 22651(o). Plaintiff has offered no evidence to suggest that the information Officer Nabozny received was deliberately falsified. Plaintiff received his vehicle back promptly and at no cost.

In sum, the undisputed facts therefore show that Plaintiff's Fourth Amendment right to be free of unreasonable searches and seizures has not been violated. Defendants' motion for summary adjudication of this claim is granted, and Plaintiff's cross-motion is denied.

II. Due Process

Plaintiff claims that Defendants violated his due process rights when they "seized" the house that he was occupying. Procedural due process of law generally requires notice and an opportunity for a hearing prior to deprivation of a "significant property interest." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19 (1978). Because Plaintiff has not established an interest sufficient against Ms. Anderson's in the property, he cannot establish that the "seizure" of the residence deprived him of such a protected property interest.

To the extent that Plaintiff brings a claim for violation of substantive due process rights, this also fails. An analysis of the Fourteenth Amendment's guarantee of substantive due process requires that the State actor's conduct be deemed unconstitutional only if it "shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Plaintiff has not offered any evidence of conduct that would fall within this category. Accordingly, Defendants' motion for summary adjudication of Plaintiff's due process claim is granted, and Plaintiff's cross-motion is denied.

III. Equal Protection

Finally, Plaintiff claims that Defendants violated his right to equal protection by failing to enforce the TRO. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)).

Here, as a threshold matter, Plaintiff has failed to show that Defendants had any occasion to enforce the TRO or that Defendants were themselves in violation of the TRO (assuming, arguendo, that the TRO was in effect despite Plaintiff's failure to serve it on Ms. Anderson). The TRO restrained Ms. Anderson from doing things to Plaintiff to "harass, molest, attack, strike, threaten, . . . destroy the personal property of, disturb the peace of, keep under surveillance, or block movements in public places of thoroughfares." Defendants' Request for Judicial Notice, Ex. A. There is no evidence that Ms. Anderson's request for BPD enforcement of trespass laws against Plaintiff constituted harassment or another prohibited activity, and in fact the TRO was later dissolved for that reason. Furthermore, there is no evidence that Defendants have treated Plaintiff differently than others who hold title by virtue of occupancy only, or that those who hold such title are, as a group, subject to discrimination. Therefore, the Court grants Defendants' motion for summary adjudication of Plaintiff's equal protection claim, and denies Plaintiff's cross-motion for summary adjudication.

Because the Court finds that Plaintiff has failed to establish a dispute of material fact as to any of his claims for violation of his rights, the Court does not reach the issue of qualified immunity. However, the Court notes that Defendants provided sufficient evidence to establish that the actions taken by Officer Fomby and Officer Nabozny and other BPD officers were reasonable.

IV. Plaintiff's Motions for Leave to Amend and to Supplement Pleadings and For a Preliminary Injunction

Plaintiff also moves to amend his complaint to add a First Amendment claim and additional individual Defendants, and to supplement his pleadings based on subsequent actions taken against him at the residence after the complaint was filed.

Based on these actions, Plaintiff also moves for a preliminary injunction "to restrain Defendants from disrupting Plaintiff's residency at 1634 62nd Street, Berkeley, Ca." Pl.'s Mot. Prelim. Inj. at 1. The Court grants Plaintiff's request for judicial notice of additional citations against him.

Federal Rule of Civil Procedure 15(a) provides that once a responsive pleading has been served, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Federal Rule of Civil Procedure 15(d) provides:

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense.

Fed. R. Civ. P. 15(d). The Court has broad discretion in deciding whether to permit supplemental pleadings. Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988).

The same standard is used to determine whether to grant leave to amend or to supplement the complaint. The Supreme Court has identified four factors relevant to whether a motion for leave to amend should be granted: undue delay, bad faith or dilatory motive of the moving party, futility of amendment, and prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962).

There is no evidence that Plaintiff unduly delayed his motion. However, Plaintiff did not file a proposed amended pleading as required by Civil Local Rule 10-1. Having reviewing the additional police reports provided by Plaintiff, it is clear that allowing him to amend the complaint to add additional Defendants or to supplement the complaint based on subsequent incidents would be futile. The materials Plaintiff provides refer to several additional citations for trespass at the residence issued to him by BPD officers. None of the facts described therein would alter the Court's finding above that Plaintiff's constitutional rights have not been violated.

The Court also finds that allowing Plaintiff to add a cause of action alleging violation of his rights under the First Amendment would be futile. In his motion, Plaintiff bases this potential claim on Defendants' alleged targeting of him based on his political views and Defendants' "disruption of plaintiff's participation in a film documentary about housing rights."

Pl.'s Mot. Add Parties & Claims at 3-4. Yet none of the supporting documents provided by Plaintiff describe conduct taken against him based on his political viewpoint. Furthermore, the documents do not suggest that Defendants have abridged Plaintiff's right to freedom of speech and association. According to the report of the incident with the film crew, Sgt. Curtin merely enforced BMC § 13.52.020, which prohibits entering property after being personally forbidden to do so. Sgt. Curtin informed one member of the film crew that he suspected Plaintiff had the key to house, where their lighting equipment remained, and then asked a person with a videocamera not to record the exchange. Plaintiff has not explained how Sgt. Curtin's behavior curtailed his protected speech activities. Therefore, the Court denies Plaintiff's motion to amend and supplement his complaint.

For the same reasons, the Court denies Plaintiff's motion for a preliminary injunction restraining Defendants from disrupting his residency. The standard for obtaining a preliminary injunction was set forth in the Court's October 14, 2004 order denying Plaintiff's motion for a temporary restraining order. He has not shown either the required combination of likelihood of success on the merits and risk of irreparable harm or serious questions regarding the merits. As explained in Sections I, BPD officers have probable cause to enforce trespass laws against Plaintiff. Therefore, Plaintiff's motion for a preliminary injunction is denied.

V. Plaintiff's Motion for Continuance

Plaintiff moves for a continuance of the summary judgment hearing to give him an opportunity to discover information possessed by Defendants relevant to their qualified immunity defense. The Court may order a continuance to allow for additional discovery if "it appear[s] from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Fed. R. Civ. P. 56(f). However, Plaintiff has submitted no explanation in his affidavits as to why he is unable to present essential facts, or what those essential facts might be.

In his reply, Plaintiff points to the report of an investigation by the Berkeley Police Review Commission (PRC), which included as an attachment the minutes of a July 14, 2004 meeting of the Alcatraz Avenue Neighborhood Association, at which the following update from Officer Fomby was reported, Previously reported vacant house with squatters: Since the property owner is not concerned, police cannot enforce. Owner does not realize that these squatters can actually take over ownership of her property by setting up residency by putting utilities in their name, etc! There is a group in San Francisco that encourages people to take over houses in this way. Great granddaughter realizes the implications, and Taj and BPD will be working with her to remove squatters.

Berkeley PRC Report of Investigation at 161.*fn6 Plaintiff claims that this statement illustrates the "mindset, motivation, and true intentions behind defendant's actions" and that he is entitled to discovery on these matters. However, the Court did not find it necessary to reach the issue of qualified immunity or Defendant Fomby's state of mind in order to decide this case. Therefore, Plaintiff has not shown that additional discovery is warranted.

Plaintiff further claims in reply that he wishes to take discovery from Ms. Anderson, but does not explain why he has not done so already or what essential facts such discovery might reveal. That Ms. Anderson may not possess actual written recorded title to the property, may not be "concerned" with the property, and may not live in the area are not inconsistent with the evidence offered by Defendants. The Court therefore denies Plaintiff's motion for a continuance.


For the foregoing reasons, the Court GRANTS Defendants' motion for summary judgment (Docket No. 30) and DENIES Plaintiff's cross-motion for summary judgment (Docket No. 42). Defendants' requests for judicial notice are GRANTED (Docket Nos. 33, 38 and 61). Plaintiff's request for judicial notice of citations against him is DENIED as moot (Docket No. 46). Plaintiff's renewed motion for a preliminary injunction (Docket No. 35) and motions for a continuance (Docket No. 41 and No. 52), to amend his complaint to add parties and claims (Docket No. 44) and to strike the documents in support of Defendants' complaint (Docket No. 47) are all DENIED.

Judgment shall enter accordingly. Each party shall bear its own costs.


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