Beruflich Dokumente
Kultur Dokumente
(408) 217-8282
theodore _ knock@mac.com
Plaintiff in pro per
COUNT I ..................................................... #
Promise Without Intent To Perform
COUNT I ..................................................... #
Inducement of Breach of Contract
COUNT II .................................................... #
Defamation
COUNT III.................................................... #
Interference with Prospective Economic Advantage
JURISDICTION
PARTIES
#.
This systematic pattern of criminal gang activity consisted of the
commission of (or attempted commission of), or the conspiracy to
commit, and the solicitation of the following predicate acts:
�
Robbery [Pen. Code � 211]
�
Sale, possession for sale, transportation, manufacture, offer
for sale, or offer to manufacture controlled substances
[Health & Safety Code �� 11054, 11055, 11056, 11057, 11058]
�
Intimidation of witnesses and victims [Pen. Code � 136.1]
�
Grand theft [Pen. Code � 487(a),(c)]
�
Burglary [Pen. Code � 459]
�
Mayhem [Pen. Code � 203]
�
Aggravated mayhem [Pen. Code � 205]
�
Torture [Pen. Code � 206]
�
Felony extortion [Pen. Code �� 518, 520]
�
Felony vandalism [Pen. Code � 594(1)(b)]
�
The sale, delivery, or transfer of a firearm [Pen. Code � 12072]
�
Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person [Pen. Code � 12101(1)(a)]
�
Threats to commit crimes resulting in death or great bodily
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 6
injury [Pen. Code � 422]
�
Theft and unlawful taking or driving of a vehicle [Pen. Code
� 10851]
�
Felony theft of an access card or account information [Pen.
Code � 484e]
�
Counterfeiting, designing, using, attempting to use an access
card [Pen. Code � 484f]
�
Felony fraudulent use of an access card or account information
[Pen. Code � 484g]
�
Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information [Pen. Code
� 530.5]
�
Wrongfully obtaining Department of Motor Vehicles documentation
[Pen. Code � 529.7]
#.
Defendant, Jonathan Paul Harrington, was an active member of
a criminal street gang, as defined by Section 186.22(a) of the
California Penal Code, and was the self-described leader of D.M.F.,
who willfully promoted, furthered, and assisted in the felonious
criminal conduct by members of DMF against the plaintiff; Defendant
Harrington sustained a juvenile petition for the criminal acts
described herein, and, in particular, Defendant, Josh Williams.
#.
Defendants, Daniel Cortez, Daniel Napolitan, Paul Casey, Robert
Bradford (aka �Malnburg, Jr.�), and DOES TWENTY-ONE through FIFTY,
were convicted felons and/or active members of D.M.F., or other
affiliations, as defined by Section 186.22(d) of the California Penal
Code, and commited criminal acts against the plaintiff for the
#.
Defendants, Julie Hoene, Joshua Williams (aka �Koppenhaver�), and
DOES ONE through TWENTY, inclusive, actively participated in the
acts described herein, with the specific intent to promote, further,
and assist the criminal conduct visited upon plaintiff by other
members of D.M.F.
#.
Defendant, Josh Koppenhaver, a juvenile, was petitioned by Defendant
Harrington and officers of the Sunnyvale Department Public Safety to
participate in the criminal acts described herein.
#.
Between February 14th, 2006, and until August 15th, 2006, Defendant,
Sunnyvale Department of Public Safety, and its officers and
employees, together with Defendants, Jonathan Harrington, Daniel
Cortez, Daniel Napolitan, Robert Bradford, Joshua Williams, Paul
Casey, and Julie Hoene, and the remaining DOE defendants, acting
under color of law, intentionally agreed with and conspired with
one and each other, and, on information and belief, entered into
an agreement to commit wrongful acts upon Plaintiff to deprive
him of a constitutionally protected property interest, and, in
particular, his home, on account of plaintiff�s sexual orientation
and disabilities, e.g., plaintiff�s HIV-positive status, and other
#.
In furtherance of the conspiracy, Defendants, Jonathan Harrington,
Daniel Cortez, Daniel Napolitan, Robert Bradford, Joshua Williams,
Paul Casey, and Julie Hoene, and DOES ONE to TWENTY, inclusive,
knowingly entered into a conspiracy of annoyance and vexation
designed to interfere with plaintiff�s quiet and peaceable
possession and enjoyment of his home and to force plaintiff to
vacate the premises; specifically, the defendants committed the
following unlawful and/or overt acts, including, but not limited
to, mail theft, wiretapping, burglary, assault and battery, false
imprisonment, identity theft, vandalism, and interfering with the
plaintiff�s ability to seek and maintain employment.
Interference with income, obstruction of mail, interception of
communications (where intent is to prevent or hinder ability to
pay bills) actionable under � 1983 per case law. The right of a
party not to have a state impair its obligations of contract is
protected by U.S. Const., art. I, � 10, cl. 1 [So. Cal. Gas Co. v.
City of Santa Ana (9th Cir. 2003) 336 F.3d 885, 887].
#.
On information and belief, Defendants, Kathy Bickel, Richard
Schreiber, Opal Schmedel, Long Cao, Connie Ferguson, Fran Hirsch,
Sylvana Healy, Steve DOE, and Todd Su, the remaining DOE defendants,
and other persons, whose names are presently unknown to plaintiff,
#.
On information and belief, Defendant, Sunnyvale Department of
Public Safety, and its officers and employees, aided and abetted
in the performance of the above-described unlawful acts, and did
conspire and agree between themselves and with the remaining
defendants, for the purpose of impeding, hindering, obstructing, or
defeating the due course of justice in the State of California, and
with the intent to deny to plaintiff the equal protection of the
laws because of his sexual orientation and perceived disabilities,
and to injure plaintiff for lawfully attempting to obtain his right
under the Constitution and laws of the United States to equal
protection of the laws.
#.
In furtherance of the object of said conspiracy, Defendant,
Sunnyvale Department of Public Safety, and its officers and
employees, and each of them, in violation of Title 42 U.S.C.S.
� 1985(2), did conspire and agree between themselves and with
others, for the purpose of impeding, hindering, obstructing, or
defeating the due course of justice in the State of California,
and with intent to deny to plaintiff the equal protection of the
laws, and to injure plaintiff for lawfully attempting to obtain his
right under the Constitution and laws of the United States to equal
#.
Defendant, Sunnyvale Department of Public Safety, carried out the
agreement within the actual or ostensible authority of its agent
and their actions were carried out in and during the course of the
employment by its� officers and employees.
The trustee�s or beneficiary�s fraudulent conduct during foreclosure
proceedings can give rise to tort damages. [South Bay Bldg.
Enterprises, Inc. v. Riviera Lend-Lease, Inc., supra, 72 CA4th at
1121-1122, 85 CR2d at 652�trustee and senior creditor fraudulently
conspired to prevent others from bidding in order to buy property
at low price, thereby causing junior lienholder to lose its security
interest; see also CC � 2924h(g)�criminalizing acts operating as
fraud or deceit on any beneficiary or junior lienholder]
#. All defendants did the acts and things herein alleged pursuant
to and in furtherance of the conspiracy and above-alleged
agreement, by interfering with Plaintiff�s economic and contractual
relationships, and his ability to acquire employment, and his
ability to pursue judicial and civil remedy for the tortious acts
of the defendants.
Per Defendant, Jonathan Harrington, in a phone conversation with
Plaintiff, on May 17th, 2006, at 11:54 PM, regarding the conduct of
the other defendants:
HARRINGTON: They�re actively making it so you [Plaintiff] cannot
sell your home, and [are] driving you into the ground
even...even further.
#.
All defendants acted in a manner, positively and tacitly, and
#.
Defendants� conduct was intentional, and each defendant knew that
their conduct would result in loss to the Plaintiff. [Hawkins v.
Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 475 (1999)]
#.
Furthermore, the loss of Plaintiff�s home and the expected economic
proceeds from its sale was proximately caused by the acts of the
defendants, and, consequently, the defendants are liable. [Buckaloo
#.
Defendant, Sunnyvale Department of Public Safety, and its
individual members, Defendants, Devon Klein, Robin Smith, Anthony
Sult, James Anton, Benjamin Holt, Jeffery Schlesinger, Sean Werner,
Theodore Zitney, Stuart Glasgow, Kirk Kim, Erik Golembriewski,
Anthony Sult, PSO Whitaker, Joel Whitmer, Carl Rushmeyer, Michael
Rose, Shannon Griffiths, Michael (aka �Mick�) Fontaine, Jon Crouch,
Detective Moscowitz, and Detective Lawrence, who are officers
and employees of the aforementioned respondent agency, together
with Defendants, Jonathan Harrington, Joshua Williams (aka
�Koppenhaver�), Daniel Cortez, Daniel Napolitan, Robert Bradford
(aka �Malnburg, Jr.�), Paul Casey, Julie Hoene, Kathy Bickel, Kandis
#.
Plaintiff is ignorant of the true names and capacities of
defendants sued herein as DOE OFFICERS ONE through FIVE, and DOES
ONE through FIFTY, inclusive, and therefore sues these defendants
by such fictitious names. Plaintiff will amend this complaint to
allege their true names and capacities when ascertained. (Plaintiff
is informed and believes and thereon alleges that each of the
fictitiously named defendants is responsible in some manner for the
occurrences herein alleged, and that plaintiff�s damages as herein
alleged were proximately caused by their conduct.)
#.
At all times hereinafter mentioned, Defendants, Devon Klein,
Robin Smith, Anthony Sult, James Anton, Benjamin Holt, Jeffery
Schlesinger, Sean Werner, Theodore Zitney, Stuart Glasgow,
Kirk Kim, Erik Golembriewski, Anthony Sult, PSO Whitaker,
Joel Whitmer, Carl Rushmeyer, Michael Rose, Shannon Griffiths,
Michael (aka �Mick�) Fontaine, Jon Crouch, Detective Moscowitz, and
Detective Lawrence were law enforcement officers in the Sunnyvale
Department of Public Safety, and in doing all of the things
hereinafter mentioned, acted under color of their authority as such,
#.
Upon information and belief, between February 23rd, 2006, and
until August 15th, 2006, Defendants made defamatory and slanderous
statements regarding the plaintiff�s conduct and deeds.
#.
Among the numerous reckless, malicious, and unsubstantiated
falsehoods and unprivileged publication of information contained
therein were that plaintiff:
�
trafficked controlled substances and narcotics from his residence,
and was considered a source of nuisance within his neighborhood
[Civ. Code � 46(1)].
Per Defendant, Joshua Williams, on July 12th, 2006:
WILLIAMS: He [Defendant Stuart Glasgow] said you were a
well-known drug dealer, who�s been causing a lot of
problems up in Adobe Wells.
�
was addicted to the excessive use of drugs;
�
was arrested multiple times for being under the influence of a
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 15
controlled substance;
Per Defendant, James Anton, on May 18th, 2006:
CSI ANTON: I had knowledge that James Bush has been arrested
�
was either a negligent contributor to the criminal conduct by which
he was victimized, or was a party or witness to, and not a victim
of, the crimes committed;
� intended to engage, was likely to engage, or had engaged, in sexual
misconduct with a minor;
Per Defendant, Jonathan Harrington, on May 18th, 2006:
HARRINGTON: Two police officers that were...that have been at
your home consistently on the graveyard shift went
to day shift�er, I�m sorry, uh...worked an early...
early swing--like, two-hour earlier shift than they
normally worked...
PLAINTIFF: Right.
HARRINGTON:
...a couple of weeks ago. Now, as soon as they saw
me walking in downtown Sunnyvale near my friend�s
house, they stopped me and they approached me and
then, you know, Joshua [Defendant Joshua Williams]
came through to that same house later on while we
PLAINTIFF:
What?!
HARRINGTON:
�...the one that looked too fucking young.� He stated
that in front of me and, like, he pushed that. And,
I was like, �You know what? You guys are fucking
way off track...�
HARRINGTON:
I was worried about it because your laptop is still
in custody [and] is being... [laughs] The only, the
only things that I ever [unintelligible] off is
viewing of certain web pages and there�s...they�re
doing evidence gathering on...on a whole different
subject.
infection.
On or about Mid-October, 2005, paramedics from Sunnyvale Department
of Public Safety answered an emergency call from Plaintiff at his
residence; while treating the plaintiff, the paramedics openly
discussed his confidential medical information with plaintiff�s
neighbors [Civ. Code �� 56-56.37 (Confidentiality of Medical
Information Act); Francies v. Kapla (2005) 127 CA4th 1381, 26 CR3d
501 (medical malpractice); Pettus v. Cole (1996) 49 CA4th 402,
57, CR2d 46; Susan S. v. Israels (1997) 55 CA4th 1290, 67 CR2d 42
(negligent infliction of emotional distress and other damages)].
The paramedics were the same police officers that waged a campaign
of defamation against plaintiff, and violated his right to privacy
by publicizing private facts about him, beginning on February 23rd ,
2006.
2nd
PINTO:
During this same time period [June , 2006,
to August 30th , 2006], Mr. PINTO also received
telephone calls and visits from Plaintiff�s mother,
expressing concern that Plaintiff was a danger to
himself and others. Plaintiff�s mother confirmed a
history of schizophrenia in Plaintiff�s family and
that Plaintiff had a history of significant mental
illness.
#.
Defendant, Sunnyvale Department of Public Safety, through its
officers, agents, employees, and representatives, acting within
the scope of their employment and authority, without plaintiff�s
consent, express or implied, violated plaintiff�s right to privacy
and invaded his seclusion, solitude, and private affairs by, but not
limited to, the following means, instrumentalities, and methods:
�
By interviewing under false pretenses persons who knew the
plaintiff, questioning them about, and casting aspersions on,
his political, social, economic, racial, and religious views,
tendencies, and possible prejudices, integrity, sexual proclivities
and inclinations, and personal habits, such as use of intoxicants,
narcotics, and other stimulants.
�
By conducting a continuing investigation of plaintiff in a manner
that with reasonable foreseeability would, and did, violate
plaintiff�s right to privacy, subject plaintiff to harassment and
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 19
intimidation, and invade plaintiff�s seclusion, solitude, and
private affairs; and,
�
By trailing and shadowing the plaintiff on streets, in buildings,
and other places, including his property; such actions were
accomplished by unreasonable means for an unreasonable length of
time and without legitimate or justifiable purpose.
Per Josh Williams, on June 8th, 2006:
PLAINTIFF: Officer Klein was standing behind some bush all by
himself...
WILLIAMS: Yes!
PLAINTIFF: ...waiting. Why was he standing outside? Officer
right?
WILLIAMS: Not really spying. Like, he parks fucking a couple of
WILLIAMS: houses down the road and then just walks up...[cups
his
hand around his ear]...and that�s fine. He�s
PLAINTIFF:
They brought me back here with groceries and, then,
they started to leave; and, then, Officer Klein was
standing outside waiting for, uh, um, someone. I
mean, so, as soon as Shane came out, he [Defendant
Devon Klein] just jumped out...
#.
Defendants� aforementioned statements, suggestions, misstatements,
innuendos, insinuations, and the inferences therefrom are
defamatory and slanderous, per se, in that they falsely attribute
criminal, unethical, immoral, dangerous, and improper conduct
to the plaintiff without justification or privilege, and in the
absence of supporting facts; and, they were made by Defendants with
knowledge of their falsity and/or with reckless disregard for their
truth or falsity [Civ. Code � 46].
#.
By defaming plaintiff, and portraying him in a false light to
neighbors, family, and business associates, Defendants irreparably
injured his reputation and standing in the community, and
maliciously, negligently, and inexcusably exposed plaintiff to
contempt, ridicule, aversion and ostracism, and deprived him of
the confidence and free intercourse of society, and impeached his
#.
Defendants� campaign of defamation against the plaintiff impaired
and/or destroyed his business and contractual relationships, which
resulted in the loss of plaintiff�s home, and the expectancy of
economic gain from its sale.
#.
Defendants� defamatory statements prejudiced opinion against the
plaintiff among other police officers and agencies, and caused
unfair and unwarranted bias in the exercise of their discretion in
the performance of their duties.
#.
Defendants have performed this character assassination of Plaintiff
to:
�
impair or destroy Plaintiff�s business and contractual
relationships;
�
eliminate Plaintiff�s expectancy of economic gain;
�
counter or mitigate damages arising from claims by Plaintiff
against them;
�
deprive Plaintiff of gainful employment and of future earning
capacity;
#.
Defendants� statements were made with knowledge that such
statements were false and/or with reckless disregard for the truth
of the same, and defendants acted with malice and wanton disregard
#.
The conduct engaged in by Defendants and described herein was the
proximate cause of the loss or impairment of Plaintiff�s business
relationship with Defendant, Advantage Homes, which resulted in the
plaintiff�s loss of the expectancy of economic gain by causing the
sale of his home not to occur.
#.
As a result of the impairment or loss of Plaintiff�s business
relationship with Defendant, Advantage Homes, Plaintiff suffered
a loss of the economic expectancy arising from the relationship,
including damages in the form of lost equity and the proceeds from
the sale of Plaintiff�s home, amounting to at least $40,000.
#.
Defendant was not justified or privileged to induce the termination
of the contract between Plaintiff and Defendant, Advantage Homes.
�
On April 9th, 2007, at 9:18 AM, Defendant, Opal Schmedel, admitted
to taking correspondence from Plaintiff�s home, between August 13th ,
2006, and August 22nd, 2006, in violation of Title 18 U.S.C. � 1701
(obstruction of mail):
PLAINTIFF:
Did you...did you ever talk to, um, mom about,
uh, er, about my situation, as far as like, uh,
DEFENDANT:
Well, I sent you a piece of paper they put on
the front door ... because Kathy, Kathy would not
accept it. And, that was when it said that they...we
had to be out in three days ... and, that�s what we
did. That�s all we could do. We had no legal right
to do anything. The best I remember, that�s how
it...how it...I know that the...they put the...I know
that they put the, uh, notice on the front door,
after Kathy wouldn�t accept it; but, anyhow, that�s
all I know about it. I sent you the thing that
they put on the front door.
�
On June 8th, 2006, per Defendant, Joshua Koppenhaver:
PLAINTIFF: Were they stealing my mail? I know they were
because Bobby...
DEFENDANT: [mumbles] And, Danny was, like, �Yeah, bro, I put
his mailbox by his door.� [mumbles]
PLAINTIFF: So, Danny was stealing from me?
DEFENDANT: [nods]
�
Between April, 2006, and July, 2006, Defendant, Daniel
Napolitan, unlawfully intercepted phone communications between
Plaintiff and Defendants, Adobe Wells, Advantage Homes, Golden
State Realty, and Origen Financial, in violation of Title 18
U.S.C. � 2511(1)(a) (unlawful interception, disclosure, or use of
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 28
communication by a nongovernmental defendant).
NAPOLITAN: I listen to their phone calls; I listen to
everything...
�
Between February, 2006, and August, 2006, Defendants, Jonathan
Harrington, Daniel Napolitan, Robert Bradford, and [list],
wrongfully entered upon Plaintiff�s land, with the intent
of dispossessing him of ownership of his home and depriving
him of proceeds from its sale by diminishing its value and/
or preventing its sale altogether by removing the For Sale
sign in front of Plaintiff�s house and turning away realtors
and potential buyers from his home, constituting trespass to
chattels, as defined by The Restatement (Second) of Torts � 217.
�
Defendants, Robert Bradford and Daniel Napolitan, obstructed
the delivery of U.S. mail intended for the plaintiff, in
violation of Title 18 U.S.C. � 1701 (obstruction of mail).
#.
Between February, 2006, and August, 2006, Defendants,
Jonathan Harrington, Josh Williams, Daniel Napolitan, and
Robert Bradford, vandalized Plaintiff�s home, as defined by
The Restatement (Second) of Torts � 218(b), to diminish its
quality and condition, impairing its value, thereby1 [insert
cost repair estimate from Allstate as exhibit]. State v.
Johnson, 265 A.2d 722, 46 A.L.R.3d 1414 (Me. 1970); Henderson v.
City of Greenwood, 172 S.C. 16, 172, S.E.689 (1934); Bountiful
City v. De Luca, 77 Utah 107, 292 P. 194, 72 A.L.R.657 (1930);
Inman v. Sandvig, 170 Wash. 112, 15 P.2d 696 (1932).
�
Defendant, Todd Su and Realty World (Golden State Realty),
stated that Defendant, Fran Hirsch, breached a contractual
obligation between Plaintiff and Defendant, Adobe Wells, by
refusing to accept applications from prospective home-buyers,
[and, according to Todd, there were two].
�
Defendants, Connie Ferguson, Fran Hirsch, and Adobe Wells
refused to review the applications of the prospective
homeowners, in violation of Civ. Code � 798.4. Plaintiff had a
signed agreement with two prospective purchasers of his home
and had a reasonable expectancy of economic gain. The only
impediment to the execution of the agreement was Defendants
refusal to review the applications of the purchasers;
�
Between February, 2006, and August, 2006, Defendants,
Jonathan Harrington, Josh Williams, Daniel Napolitan,
Daniel Cortez, Laurene Reber, and Robert Bradford,
vandalized Plaintiff�s home to diminish its quality,
condition and value, constituting vandalism, as defined by
The Restatement (Second) of Torts � 218(b), and ... removed
the For Sale sign in front of Plaintiff�s house, and turned
away realtors and potential buyers from his home, constituting
trespass to chattels, as defined by The Restatement (Second) of
Torts � 217.
6.
In engaging in the conduct described in Paragraph IV, Defendants
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 30
intended to impair or destroy Plaintiff�s business relationship with
the third parties, Advantage Homes and Golden State Realty (Realty
World), thereby destroying Plaintiff�s expectancy of economic gain.
Defendant engaged in the interfering conduct with malice toward
Plaintiff and a desire to injure Plaintiff economically, and with
wantonness and disregard for Plaintiff�s rights. Defendants� conduct
was improper, unlawful and unfair, in that it [describe how conduct
was improper, e.g., that it involved a restraint of trade, was
defamatory, etc.].
#.
Between February 23rd, 2006, and August 15th, 2006, Defendants,
Jonathan Harrington, Daniel Napolitan, Robert Bradford, and [list],
and, DOES ONE through TWENTY, inclusive, wrongfully entered upon
Plaintiff�s land, constituting trespass to chattels, as defined by The
Restatement (Second) of Torts � 217, with the intent of dispossessing
him of ownership of his home, and depriving him of proceeds from its
sale, by diminishing its value and/or preventing its sale altogether
through acts of vandalism, obstruction of mail, interception of
phone communications, and other tortious conduct.
#.
Plaintiff is informed and believes, and on the basis of that
information and belief alleges, that each of those defendants was in
some manner intentionally, negligently, recklessly, or as the result
of an extrahazardous activity, proximately responsible for the
events and happenings alleged in this complaint and for plaintiff�s
injuries and damages.
#.
Plaintiff is informed and believes, and on the basis of this
information and belief alleges, that at all times mentioned in
this complaint, defendants were the agents and employees of their
codefendants, and in doing the things alleged in this complaint
were acting within the course and scope of such agency and
employment.
##. Between February 23rd, 2006, and August 15th, 2006, Plaintiff was
##. At various times between February 23rd, 2006, and August 15th, 2006,
Defendants, without the consent or authority and against the will
of Plaintiff, entered onto the above-described property as follows:
�
Per Defendant, Joshua Williams, on June 8th, 2006:
PLAINTIFF: Officer Klein was standing behind some bush all by
himself...
WILLIAMS: Yes!
PLAINTIFF: ...waiting. Why was he standing outside? Officer Klein
WILLIAMS:
Not really spying. Like, he parks, fucking, a couple
of houses down the road and then just walks up [cups
hand around ear]...and that�s fine. He�s quiet, you
understand?
�
Per Defendant, Jonathan Harrington, on May 17th, 2006:
HARRINGTON:
Hey, this is you-know-who! I had the weirdest
fucking dream last night that you were having
PLAINTIFF:
HARRINGTON:
PLAINTIFF:
HARRINGTON:
PLAINTIFF:
HARRINGTON:
PLAINTIFF:
HARRINGTON:
PLAINTIFF:
HARRINGTON:
PLAINTIFF:
HARRINGTON:
PLAINTIFF:
HARRINGTON:
HARRINGTON:
PLAINTIFF:
##. The intrusion was into a place or thing which was private and
entitled to be private in that it involved an unconsented invasion
into Plaintiff�s home.
#.
Between February, 2006, and August, 2006, Defendants,
Jonathan Harrington, Josh Williams, Daniel Napolitan, and
Robert Bradford, vandalized Plaintiff�s home, as defined by
The Restatement (Second) of Torts � 218(b), to diminish its quality
and condition, impairing its value, thereby1 [insert cost repair
estimate from Allstate as exhibit]. State v. Johnson, 265 A.2d 722,
46 A.L.R.3d 1414 (Me. 1970); Henderson v. City of Greenwood, 172 S.C.
16, 172, S.E.689 (1934); Bountiful City v. De Luca, 77 Utah 107, 292 P.
194, 72 A.L.R.657 (1930); Inman v. Sandvig, 170 Wash. 112, 15 P.2d 696
(1932).
#.
Defendants, Officer Devon Klein, [officers], stalked, eavesdropped
and harassed Plaintiff, and is liable for injuries suffered by
himself...
DEFENDANT: Yes!
PLAINTIFF: ...waiting. Why was he standing outside? Officer Klein
DEFENDANT:
Not really spying. Like, he parks, fucking, a couple
of houses down the road and then just walks up [cups
hand around ear]...and that�s fine. He�s quiet, you
understand?
#.
The aforementioned Defendants willfully, repeatedly and continually
harassed Plaintiff to intentionally cause him to feel terrorized,
frightened, intimidated, threatened and harassed, which actually
caused him to feel terrorized, frightened, intimidated, threatened
and harassed.
#.
The aforementioned defendants knowingly and willfully directed
their course of conduct towards the plaintiff in such a way as to
seriously alarm, annoy, and harass the plaintiff, which served no
legitimate purpose.
#.
Defendants� conduct caused the plaintiff to suffer substantial
emotional distress.
#.
Defendants� pattern of conduct began in February 2006, and is
composed of a series of acts of unlawful violence, including,
stalking, assault and battery, false imprisonment, making of
harassing telephone calls, and sending of harassing correspondence,
including, but not limited to, the use of public mails and computer
e-mail, and continues to this day, evidencing a continuity in
purpose.
#.
Defendant�s conduct was intentional, as was their ability to carry
out threats of violence were apparent and credible, resulting in
Plaintiff�s reasonable fear for his safety.
#.
By virtue of the broker-client relationship that existed between the
defendant and plaintiff, the defendant owed to plaintiff a fiduciary
duty2, and by virtue of plaintiff�s having placed confidence in the
fidelity and integrity of defendant and in entrusting defendant with
the timely sale of his home, a confidential relationship existed at
all times herein mentioned between plaintiff and defendant.
#.
Despite having voluntarily accepted the trust and confidence of
plaintiff with regard the timely sale of his home, defendant abused
the trust and confidence of plaintiff on or about May 18th, 2006, by
delisting Plaintiff�s home in the absence of consent or knowledge of
Plaintiff4,5.
Between March 18th, 2006, and August 3rd, 2006, Plaintiff reasonably
#.
Prior to commencing a broker-client relationship with the defendant,
Plaintiff was experiencing serious personal and legal difficulties,
of which the defendant had full knowledge, and that required him to
sale his home within three months.
#.
In spite of such knowledge, the defendant failed to exercise
reasonable care, skill and diligence in that he failed to disclose
#.
On or about [date], Plaintiff commenced a business relationship
with Defendants, Todd Su and Golden State Realty, which contemplated
the sale of Plaintiff�s home, situated at 1220 Tasman Drive SPC 379,
City of Sunnyvale, County of Santa Clara, State of California,
whereby Plaintiff had a reasonable economic expectancy arising from
the relationship, including proceeds from the sale of Plaintiff�s
home, and from its equity, amounting to at least $40,000.
Adobe Wells, Margaret Ecker Nanda, and Brandenburg, Staedler & Moore)
#.
On or about May 8th, 2006, Defendants began the process of unlawful
detainer against Plaintiff by filing a Proof of Personal Service for
a �Combined Three (3) Day Notice to Pay or Have Tenancy Terminated
and Sixty (60) Day Notice of Termination of Tenancy� at the
Superior Court of California, County of Santa Clara, Civil Division.
�
failing to properly serve plaintiff with a copy of the above-
described document on the date listed thereon, and executing a
false declaration of service thereby [Kappel v. Bartlett (1988)
200 Cal. App. 3d 1457, 1463-1467, 246 Cal. Rptr. 815]; in August,
2006, Defendants, Brandenburg, Staedler & Moore, provided
plaintiff with a copy of a 60-day Notice of Termination of
Tenancy, which was dated June 2nd, 2006;
�
refusing to accept plaintiff�s lease payment for the month of
July 2006. Defendant, Connie Ferguson, promised to extend the
due date of Plaintiff�s monthly lease payment. Plaintiff paid
the lease payment on the revised due date, as agreed upon by
the two parties; however, Defendant, Adobe Wells, attached a
notice of late payment letter as an exhibit in an unlawful
detainer complaint.
�
taking action pursuant to judicial authority, i.e., an action
for unlawful detainer, and attaching property that had a value
greatly in excess of the amount of the defendant�s claim [White
Lighting Co. v. Wolfson (1968) 68 Cal. 2d 336, 347, 66 Cal. Rptr.
697, 438 P.2d 345].
#.
The ulterior purpose and motivation of defendants in so misusing
the process in the above-described manner was to obtain the
following collateral advantage over the plaintiff: to force a
default on plaintiff�s mortgage and obtain a default judgment
#.
By assisting Defendant, Adobe Wells, in prosecuting the unlawful
detainer case against the plaintiff, Defendant, Margaret Ecker
Nanda, is liable for the misuse of legal process, and is likewise a
co-conspirator in the deprivation of plaintiff�s property.
#.
As a proximate result of the actions of defendants, plaintiff has
been damaged generally.
agreement.
#.
On [date], Plaintiff notified Defendant, Adobe Wells, of his
intention to sell his mobilehome through a real estate agent, and,
in particular, Defendant, Todd Su.
#. On July 11th, 2006, Defendant, Todd Su, agent for the plaintiff,
notified Defendant, Adobe Wells, that two prospective homeowners
proposed to purchase the plaintiff�s home; however, Defendant, Fran
Hirsch, notified Defendant, Todd Su, that any applications from
prospective buyers of plaintiff�s home would be refused.
Per Defendant, Todd Su, in a phone conversation with Plaintiff, on
July 12th, 2006, at 8:22 PM:
SU: Yesterday, I called her. I said [that] I wanted to make an
appointment for an application; and, uh, she said, �Let me
talk to Fran and make sure it�s okay� (Fran, which is her
boss).
SU: �Ooh, I�ll give you a call back, Todd.� I didn�t get a call
back; but...so, I followed up today to see what happened,
�How come I didn�t get a call?� And...and, she replied to
me, �I cannot discuss the situation with you any further.
Please...if...we...it�s been referred over to our lawyers;
#.
By refusing to review the applications of the prospective
homeowners, Defendants, Fran Hirsch and Adobe Wells, violated
Mobilehome Residency Law [Civ. Code � 798.4], in that, approval of
either prospective homeowner was withheld for a reason other than:
�
their inability to pay the rent and charges of the park, and
their failure to secure approval for their respective home
loans; and,
�
their inability to comply with the rules and regulations of
the park, based on their prior tenancies, as determined by
management.
#.
Defendants are liable for all damages proximately resulting
therefrom.
#.
Defendant, Connie Ferguson, cited the defamatory statements made
by various officers of Defendant, Sunnyvale Department of Public
Safety, as the reason for rescinding the agreement after the fact.
#.
Plaintiff brings his cause of action1 for attorney malpractice
and professional negligence against Defendants, Steve Blackman,
Alpert & Barr, Steve Brotman, and Origen Financial, ...
#.
An attorney-client relationship is created if a person reasonably
relies on an attorney to provide services and the attorney, aware
of the reliance, does nothing to negate that reliance. The client�s
reliance on ther attorney�s anticipated action created an attorney-
client relationship regardless of whether the action was brought in
contract or tort.17
#.
In their representation of the legal interests of the plaintiff,
defendants assumed a duty to exercise the degree of care,
diligence, and skill that is ordinarily exercised by attorneys,
and to take only that action that served the best interests of the
plaintiff.
#.
Notwithstanding the duties imposed on the defendants by the
standards of practice established by the State of California, the
defendants breached their duty to the plaintiff by failing to
comply with the statutory notice requirements set forth in Civ. Code
� 2924, prior to commencing nonjudicial foreclosure proceedings, in
that:
�
they failed to notify the plaintiff of his right to avoid
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 51
foreclosure by paying all overdue amounts, plus permitted costs
and expenses, within the time allowed by law for reinstatement
[Civ. Code � 2924c(b)(1)];
�
they failed to record the Notice of Default and Notice of Sale
with the county recorder; and,
�
they failed to post (and publish) the Notice of Sale in the
manner required by Civ. Code � 2924f(b)(1).
#.
That as a direct and proximate result of the negligence,
misfeasance, malfeasance, misconduct, and intentional acts of
defendants as already set forth, plaintiff has suffered damage to
his property and reputation, including, but not limited to:
�
loss of the plaintiff�s security and ownership interest in his home,
and its use incident to possession;
�
loss of reputation, including credit rating; and,
� extreme mental anguish.
#. [damages]
#. [absence of defense]
#. As a result of Defendants� failure to provide Plaintiff the Notice
of Sale, Plaintiff was denied his statutory right of reinstatement
under Civ. Code � 2924c(e).
#.
Liability of attorney to party from whom he receives no
compensation. The fact that attorney is receiving all his
compensation from one party to a transaction does not prevent the
relationship of attorney and client from existing with respect to
the other; an attorney who voluntarily undertakes to record for the
#.
That the client-mortgagee, Origen Financial, had not foreclosed
the plaintiff�s mortgage, and that the mortgagor was not insolvent
and had not defaulted in payment of the debt, invalidates any
defense to malpractice and/or negligence on behalf of the defendant
[Gardner v. Wood, 37 Misc 93, 74 NYS 750; Lawall v. Groman, 180 Pa
532, 37 A 98; Miller v. Wilson (1854) 24 Pa 114].
#. ...
#.
On [date], defendant notified plaintiff that defendant intended
to sell plaintiffs� automobile at private sale on _ [date] unless
plaintiffs� paid the entire alleged balance due on the installment
sales contract
#.
#.
For his cause of action against Defendant, Kathy Bickel, Plaintiff
incorporates each and every allegation and averment set forth in
this complaint as though fully set forth in Paragraphs 1 through 17.
�
Constructive fraud arises when one party in a transaction is seen
to have a special duty to the other because of his superiority
of knowledge, position, or fiduciary relationship, and he exploits
or abuses this position. A special duty may be inferred from the
disproportionate power and knowledge a large institutional bank or
broker wields in relation to ordinary individuals; the willingness
of a seller to provide financing for a buyer as an indication of
trust and confidence; blood relations; a partnership relationship.
In a constructive fraud situation, a negligent representation that a
plaintiff believed and relied on to his detriment may be sufficient
to allow a remedy.
�Kathy Bickel
� There also are constructive fraud type exceptions. For
example, where one party has special knowledge not apparent to
the other, and is aware that the other party is acting under a
misapprehension as to the facts that would affect his decision. In
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 57
other words, when the fraud-feasor is in a special position relative to
the victim, i.e. he has a duty to disclose and there is an obligation
to act in good faith. Even if a party owes no duty to disclose facts,
should he voluntarily assume such a duty, then any �suppression
or disguise of, or distraction from the truth� renders the matter
actionable and the common law requires full disclosure.
#.
Between February 14th, 2006, and until August 15th, 2006, Defendant,
Devon Klein, Robin Smith, Stuart Glasgow, Eric Grolembiewski,
[officers], who are agents and employees of the Sunnyvale Department
of Public Safety, together with Defendants, Jonathan Harrington,
Daniel Cortez, Daniel Napolitan, Robert Bradford, Joshua Williams,
Paul Casey, and Julie Hoene, and persons unknown to plaintiff,
acting under color of law, subjected plaintiff to a pattern of
conduct consisting of gang activity, as defined by Section 186.22(e)
of the California Penal Code, on account of plaintiff�s sexual
orientation and perceived disabilities, and other pretenses, in
denial of rights, privileges, and immunities guaranteed by the
Fourteenth Amendment of the United States Constitution, and by the
California Street Terrorism Enforcement and Prevention Act.
#.
This systematic pattern of criminal gang activity consisted of the
commission of (or attempted commission of), or the conspiracy to
commit, and the solicitation of the following predicate acts:
�
Robbery [Pen. Code � 211]
�
Sale, possession for sale, transportation, manufacture, offer
for sale, or offer to manufacture controlled substances
[Health & Safety Code �� 11054, 11055, 11056, 11057, 11058]
�
Intimidation of witnesses and victims [Pen. Code � 136.1]
�
Grand theft [Pen. Code � 487(a),(c)]
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 59
�
Burglary [Pen. Code � 459]
�
Mayhem [Pen. Code � 203]
�
Aggravated mayhem [Pen. Code � 205]
�
Torture [Pen. Code � 206]
�
Felony extortion [Pen. Code �� 518, 520]
�
Felony vandalism [Pen. Code � 594(1)(b)]
�
The sale, delivery, or transfer of a firearm [Pen. Code � 12072]
�
Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person [Pen. Code � 12101(1)(a)]
�
Threats to commit crimes resulting in death or great bodily
injury [Pen. Code � 422]
�
Theft and unlawful taking or driving of a vehicle [Pen. Code
� 10851]
�
Felony theft of an access card or account information [Pen.
Code � 484e]
�
Counterfeiting, designing, using, attempting to use an access
card [Pen. Code � 484f]
�
Felony fraudulent use of an access card or account information
[Pen. Code � 484g]
�
Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information [Pen. Code
� 530.5]
�
Wrongfully obtaining Department of Motor Vehicles documentation
[Pen. Code � 529.7]
#. Defendants, [officers], conspired to deprive plaintiff of his
right to personal security and to be protected from harm caused
#.
By and through their acts and/or omissions, Defendants, [officers],
placed plaintiff in a more dependent and vulnerable position than
would have otherwise occurred. These affirmative acts include, but
are not limited to, ignoring pleas from plaintiff to intervene, and
abandoning the plaintiff to private violence by failing to restrain
persons exhibiting criminal conduct or propensities. Moreover, by
adopting a policy of restraint towards the criminals, the police
emboldened participants in the violence and increased the danger
to the plaintiff, which entitled him to the broader right to be
protected from harm [United States v. Koon, 34 F.3d 1416, 1447 (9th
Cir. 1994); Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L.
Ed. 2d 28 (1982)].
#.
Defendants, [officers], owed a duty of care to the plaintiff, in
that the defendants were advised, or knew, that an inherent danger
existed, in view of the propensity of criminal defendants to
violence and revenge, and could have reasonably been expected to
have foreseen that a breach of that duty would result in harm to
the plaintiff.
#.
The harm suffered by Plaintiff was proximately caused by
Defendants� willful disregard and deliberate indifference for his
safety, in that the failure to exercise reasonable care due the
plaintiff increased the risk of danger that specifically affected
the plaintiff, and not the community-at-large.
�
Freedom from invasion of privacy and defamation;
�
Petition the government for redress of grievances;
�
Freedom from illegal seizure of his person, papers, and
effects;
�
Freedom from unlawful arrest and conviction without evidence in
support thereof (i.e., a fair trial);
�
Freedom from illegal detention and/or imprisonment; and,
�
Freedom from physical abuse, coercion, or intimidation;
#.
All of these rights are secured to plaintiff by the provisions of
the First Amendment and the Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States, and by Title 42
United States Code Section 1983 and Section 1985; and, by Title 18
United States Code � 245 [(1968) Pub Law 90�284, 90th Cong, HR 2516,
82 Stat 73].
#.
Despite the fact that they knew or should have known of the fact
that this pattern of conduct was being carried out by their agents
and employees, Defendants, Sunnyvale Department of Public Safety
and City of Sunnyvale, took no steps or made any effort to order a
halt to this course of conduct, to make redress to the plaintiff,
or to take any disciplinary action whatsoever against any of their
Allegational Requirements:
1.
Duty owed by defendant to plaintiff to exercise due care to protect
the plaintiff from harm (e.g., admonishment of suspects creates
�duty of care� and �special relationship�; a liability exists where
the suspects ignore the admonishment, and the defendants fail to
respond appropriately)
2.
Breach of such duty by defendant
3.
Psychological trauma (i.e., emotional stress) sustained by plaintiff
as proximate result of defendant�s breach of duty
-fright
-shock
-other forms of emotional stress
4.
Posttraumatic anxiety neurosis sustained by plaintiff as proximate
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 63
result of such psychological trauma
-acute phase of plaintiff�s anxiety (the traumatic syndrome)
-chronic phase of plaintiff�s anxiety (the actual neurosis)
5.
Physical examination of plaintiff showing no physiological reason
for his anxiety symptoms
6.
Psychiatric examination of plaintiff indicating presence of
posttraumatic anxiety neurosis
7.
Symptoms of acute anxiety phase
- fear
- palpitation
- intense perspiration
- �startle� reaction
- repetitive nightmares in which accident trauma is reexperienced
- headaches
- dizziness
- excessive fatigue
- decrease in appetite
- decrease in sexual drive
- irritability
- excitability
- increased sensitivity to noise
- various other manifestations of fear and incapacitation
- Symptoms of chronic anxiety phase
- nervousness
- restlessness
- irritability
COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 64
- excitability
- headaches
- excessive fatigue
- insomnia
- periodic appearance and disappearance of the above symptoms
- varying degrees of severity of the above symptoms
- Normal predisposition of plaintiff towards developing posttraumatic
neurosis
- fact that plaintiff�s preexisting susceptibility was shared by
substantial number of other persons
[The following proof presents evidence to show the development by the
plaintiff of posttraumatic anxiety neurosis as a proximate result
of psychological trauma - that is, emotional stress - experienced
by the plaintiff in an automobile accident negligently caused by
the defendant. Although in any posttraumatic neurosis the clinical
picture is generally mixed,� it is assumed for the purposes of
this proof that the plaintiff�s neurotic symptoms are only those
of posttraumatic anxiety neurosis. This proof is intended only as
an illustrative method of proving the development of posttraumatic
anxiety]