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Manuel Vasquez, et al v. Tony Rackauckas

May 10, 2011

MANUEL VASQUEZ, ET AL., PLAINTIFF-PETITIONERS,
v.
TONY RACKAUCKAS, ET AL., DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Hon. Valerie Baker Fairbank United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER COURT TRIAL

13793623.1

After presiding over the bench trial, considering the evidence and counsel's arguments, and reading the parties' post-trial briefs, this court rendered its Statement of Tentative Decision after Court Trial and made an accompanying order regarding preparation of proposed Findings of Fact and Conclusions of Law. L.R. 52-2 - 52-8. The Statement of Tentative Decision was made after an eleven day court trial on the Plaintiffs' Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus. (Dkts. 1-3). After further considering the evidence and the parties' documents filed in response to the Court's Tentative Decision (Dkts. 396-404), the Court hereby makes its Findings of Fact and Conclusions of Law after Court Trial.

Pursuant to grounds shown by the Plaintiffs as set forth herein, the Court finds for the Plaintiffs and against the Defendants on the First Claim against each Defendant (42 U.S.C. Section 1983 - Procedural Due Process Under U.S. Const. Amend. XIV) and the Second Claim against each Defendant (Procedural Due Process Under Cal. Const. Art. I, Section 7). The Plaintiffs prevail in their challenge to the Defendants' action of enforcing the gang injunction against Plaintiffs after the OCDA dismissed them from the state court suit prior to judgment. Procedural due process required a pre-deprivation hearing in the circumstances presented in this case. The remedies sought by Plaintiffs of declaratory relief and injunctive relief are granted as addressed below. On the other hand, the writ of habeas is denied in that the Plaintiffs have not shown that any of them are in "custody" for purposes of a writ of habeas corpus.

There have been substantial changes since this court denied the Plaintiffs' Motion for Preliminary Injunction. These changes justify a Judgment in favor of the Plaintiffs. First, the Court has now had the benefit of a lengthy trial and live testimony and therefore is in a better position to not only judge the weight of the evidence but also its credibility. As set forth below, the Court finds that the weight of the evidence and the law favors the Plaintiffs.

Additionally, the equitable relief sought by the Plaintiffs has more support, including evidentiary support presented at trial. The injunctive relief sought has been clarified and narrowed. The declaratory and injunctive relief is not inappropriate, unworkable or an affront to comity or an impairment of sovereign powers or dignity of the State of California. This Court is not instructing the state court as to the nature of any hearing. This action and the Court's order are directed to the Defendants, and not the state court. As set forth below, the Defendants are barred from enforcement of the State's Order for Permanent Injunction against the Plaintiffs.

Findings of Fact

The Parties to this Action

1. The Plaintiff-Petitioners Manuel Vasquez, Miguel Lara, and Gabriel Bastida bring this action individually on behalf of a class certified as:

All persons named as individual defendants in People v. Orange Varrio Cypress Criminal Street Gang, et al., Orange County Superior Court, 30-2009 00118739, dated February 17, 2009, who appeared in the Orange County Superior Court to defend themselves and were voluntarily dismissed by the Orange County District Attorney's office, and who did not have contempt proceedings pending against them arising out of the Order for Permanent Injunction against "Orange Varrio Cypress Criminal Street Gang" dated May 14, 2009, as of the date of the filing of this litigation - September 23, 2009. Dkt. 135.

2. Additionally, Plaintiff Randy Bastida brings this action individually and on behalf of a class certified as:

All juveniles named as individual defendants in People v. Orange Varrio Cypress Criminal Street Gang, et al., Orange County Superior Court, 30-2009 00118739, dated February 17, 2009, for whom no guardian ad litem was appointed, who were voluntarily dismissed by the Orange County District Attorney's office, and who did not have contempt proceedings pending against them arising out of the Order for Permanent Injunction against "Orange Varrio Cypress Criminal Street Gang" dated May 14, 2009, as of the date of the filing of this litigation - September 23, 2009. Dkt. 135.

3. The Defendants are Tony Rackauckas, the Orange County District Attorney ("OCDA") and Robert Gustafson, Chief of the Orange Police Department ("OPD").The Defendants are sued only in their official capacities. Compl. ¶ 1. The Complaint in this Federal Action

4. On September 23, 2009, the Plaintiffs Manuel Vasquez, Miguel Lara, Gabriel Bastida, and Randy Bastida, on their own behalf and on behalf of Class Plaintiffs (collectively "Plaintiffs") filed their Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus against the Defendants. The Complaint has two causes of action for procedural due process violations: the first is a 42 U.S.C. Section 1983 claim under the 14th Amendment of the U.S. Constitution, and the second is a claim under the California Constitution, Art. I, section 7. Compl. ¶¶ 97-103.

5. The Plaintiffs seek to enjoin Defendants and their directors, officers, agents and employees from enforcing the terms of the permanent injunction order against them issued in People v. Orange Varrio Cypress Criminal Street Gang, et al., Orange County Superior Court, 30-2009 00118739 and those similarly situated "without first providing them with a full constitutionally-adequate hearing." Compl. Prayer for Relief; Plaintiffs' Closing Brief (dkt. 376), page 50 and Reply Brief (dkt. 387), page 26.

6. Plaintiffs challenge Defendants' tactics in subjecting them to a gang injunction, obtained via default against the gang to which they allegedly belong, after dismissing the Plaintiffs from that suit. Compl. ¶ 4.

7. On September 29, 2009, the Court denied the Plaintiffs' Ex Parte Application for a Temporary Restraining Order, but set an Order to Show Cause re Preliminary Injunction hearing for November 5, 2009. Dkt. 45. On November 17, 2009, the Court denied Plaintiffs' Motion for Preliminary Injunction. Dkt.

86. On September 27, 2010, the Court denied the parties' cross motions for summary judgment. Dkt. 213.

The State Court Action

8. On February 17, 2009, the OCDA, on behalf of The People of the State of California, filed in the Superior Court of California for the County of Orange ("OCSC"), a Complaint for Preliminary and Permanent Injunction to Abate a Public Nuisance. People v. Orange Varrio Cypress Criminal Street Gang, et al., Orange County Superior Court, 30-2009-00118739 (hereinafter, the "State Action"). 11/16 a.m. RT 17:5-14, 64:21-65:5; see also Trial Ex.126.*fn1

9. In the State Action, the OCDA sued not only the Orange Varrio Cypress Criminal Street Gang ("OVC") as an unincorporated association but also 115 individuals and 150 Does alleged to be active members or associates of OVC. Trial Ex. 126.

10. On February 23, 2009, the OCDA filed an ex parte application to serve OVC under California Civil Procedure Code § 416.40(c). Trial Ex. 274. The OCDA requested and obtained permission to serve the gang via a named defendant, Patrick DeHerrera, whom the OCDA alleged was an OVC member. Trial Ex. 275.

11. On or about February 24 and 25, 2009, OPD officers served the summons, complaint, and supporting papers totaling at least 500 pages on numerous individuals named in the state court complaint, including Plaintiffs. 11/16 a.m. RT 78:9-20; see also 11/9 a.m. RT 6:5-10.

12. Ultimately, 32 defendants (adults and represented juveniles) -- including Plaintiffs Lara, Vasquez, and Gabriel Bastida -- filed an answer, general denial, or otherwise formally appeared in response to the complaint. Trial Exs. 68, 80, 174; Pls.' RJN Ex. 3 at Dkt. Nos. 63 & 207; Pls.' RJN Exs. 25 through 46,

114, 53, 101 through 104.

13. On May 12, 2009, the OCDA filed a request for dismissal against 62 individual defendants in the State Action. This group included the 32 individuals who responded to the complaint either by filing a general denial and/or an answer and approximately 27 unrepresented juveniles. The dismissal was entered by the Clerk of the OCSC on May 12, 2009. 11/16 p.m. RT 39:3-23; Trial Ex. 17.

14. On May 14, 2009, the OCSC granted the OCDA's request for default and judgment against OVC and those individual defendants who had not filed a response to the complaint and had default entered against them. See Trial Ex. 267. The OCSC then signed the Order for Permanent Injunction (the "Order"). Trial Ex. 19.

15. The Order states that it applies to OVC and to all OVC's "members, participants, agents, associates, servants, employees, aiders, and abettors whose membership, participation, agency, association, service, employment, aid or abetment is more than nominal, passive, inactive, or purely technical and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with the OVC criminal street gang in any manner that is more than nominal, passive, inactive, or purely technical." The terms of the Order applied to a limited gang operation area in the City of Orange, which the state court termed the "Safety Zone." Trial Ex. 19.

16. In early June 2009, the OCDA, by and through the OPD, began to serve the Order for Permanent Injunction. 11/16 p.m. RT 46:6-8. As of September 3, 2009, 98 individuals were served with the Order for Permanent Injunction, including at least 48 individuals who had been named in the litigation against OVC and its members but were voluntarily dismissed by the OCDA. 11/16 p.m. RT 46:15-47:8; compare Trial Ex. 17 with Trial Ex. 78; see also 11/23 a.m. RT 55:21-57:13.

17. Along with the Order for Permanent Injunction, the OCDA and OPD served a notice stating:

YOU ARE HEREBY PUT ON NOTICE THAT ON MAY 14, 2009, JUDGE KAZUHARU MAKINO SIGNED AN ORDER FOR PERMANENT INJUNCTION AGAINST THE ORANGE ...


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