EJ 65-Dischargeability - other

Transcription

1 FORM (0/0 ADVERSARY PROCEEDING COVER SHEET (Instructions on Page 0 USBC, Central District of California ADVERSARY PROCEEDING NUMBER (Court Use Only PLAINTIFFS RAYMOND NEWBERRY; PATRICIA MENDOZA; MARIA ABOYTIA; JUANA PULIDO; JESUS PULIDO; ET AL ATTORNEYS (Firm Name, Address, and Telephone No. LAW OFFICES OF MARJORIE BARRIOS, PO BOX 00 SAN BERNARDINO, CA PARTY (Check One Box Only O Debtor O U.S. Trustee/Bankruptcy Admin ~ Creditor O Other D Trustee DEFENDANTS CITY OF SAN BERNARDINO ATTORNEYS (If Known STRADLING, YOCA, CARLSON & RAUTH 0 WILSHIRE BLVD. FOURTH FLOOR SANTA MONICA, CA PARTY (Check One Box Only Ill Debtor O U.S. Trustee/Bankruptcy Admin O Creditor D Trustee O Other CAUSE OF ACTION (WRITE A BRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED DETERMINATION OF DISCHARGEABILITY OF INTENTIONAL POST-PETITION TORTS UNDER U.S.C. NATURE OF SUIT (Number up to five ( boxes starting with lead cause of action as, first alternative cause as, second alternative cause as, etc. FRBP 00(- Recovery of Money/Property 0 -Recovery of money/property - turnover of property 0 -Recovery of money/property - preference 0 -Recovery of money/property - fraudulent transfer 0 -Recovery of money/property - other FRBP 00(-Validity, Priority or Extent of Lien 0 -Validity, priority or extent of lien or other interest in property FRBP 00 ( - Approval of Sale of Property D -Approval of sale of property of estate and of a co-owner - (h FRBP 00(- Objection/Revocation of Discharge 0-0bjection I revocation of discharge - (c,(d,(e FRBP 00( - Revocation of Confirmation 0 -Revocation of confirmation FRBP 00 ( - Dischargeability 0 -Dischargeability- (a(,(,( A priority tax claims 0 -Dischargeability - (a(, false pretenses, false representation, actual fraud 0 -Dischargeability- (a(, fraud as fiduciary, embezzlement, larceny FRBP 00( - Dischargeability (continued 0 -Dischargeability - (a(, domestic support 0 -Dischargeability - (a(, willful and malicious injury D -Dischargeability - (a(, student loan 0 -Dischargeability - (a(, divorce or separation obligation (other than domestic support EJ -Dischargeability - other FRBP 00( - Injunctive Relief 0 -lnjunctive relief - imposition of stay 0 -lnjunctive relief - other FRBP 00( Subordination of Claim or Interest 0 -Subordination of claim or interest FRBP 00( Declaratory Judgment IRJ -Declaratory judgment FRBP 00( Determination of Removed Action 0 0-Determination of removed claim or cause Other O SS-SIPA Case - U.S.C. aaa et.seq ther (e.g. other actions that would have been brought in state court if unrelated to bankruptcy case (continued next column O Check if this case involves a substantive issue of state law!; Check if a jury trial is demanded in complaint O Check if this is asserted to be a class action under FRCP Demand $ Other Relief Sought

2 FORM (0/0, page 0 USBC, Central District of California BANKRUPTCY CASE IN WHICH THIS ADVERSARY PROCEEDING ARISES NAME OF DEBTOR IN RE CITY OF SAN BERNARDINO BANKRUPTCY CASE NO. :-00-MJ DISTRICT IN WHICH CASE IS PENDING DIVISIONAL OFFICE NAME OF JUDGE CENTRAL RIVERSIDE MERIDITH A. JURY RELATED ADVERSARY PROCEEDING (IF ANY PLAINTIFF DEFENDANT ADVERSARY PROCEEDING NO. DISTRICT IN WHICH ADVERSARY IS PENDING DIVISIONAL OFFICE NAME OF JUDGE SIGNATURE OF ATTORNEY (OR PLAINTIFF ~ DATE // PRINT NAME OF ATTORNEY (OR PLAINTIFF MARJORIE BARRIOS INSTRUCTIONS The filing of a bankruptcy case creates an "estate" under the jurisdiction of the bankruptcy court which consists of all of the property of the debtor, wherever that property is located. Because the bankruptcy estate is so extensive and the jurisdiction of the court so broad, there may be lawsuits over the property or property rights of the estate. There also may be lawsuits concerning the debtor's discharge. If such a lawsuit is filed in a bankruptcy court, it is called an adversary proceeding. A party filing an adversary proceeding must also complete and file Form, the Adversary Proceeding Cover Sheet, unless the party files the adversary proceeding electronically through the court's Case Management/Electronic Case Filing system (CM/ECF. (CM/ECF captures the information on Form as part of the filing process. When completed, the cover sheet summarizes basic information on the adversary proceeding. The clerk of court needs the information to process the adversary proceeding and prepare required statistical reports on court activity. The cover sheet and the information contained on it do not replace or supplement the filing and service of pleadings or other papers as required by law, the Bankruptcy Rules, or the local rules of court. The cover sheet, which is largely selfexplanatory, must be completed by the plaintiffs attorney (or by the plaintiff if the plaintiff is not represented by an attorney. A separate cover sheet must be submitted to the clerk for each complaint filed. Plaintiffs and Defendents. Give the names of the plaintiffs and defendants exactly as they appear on the complaint. Attorneys. Give the names and addresses of the attorneys, if known. Party. Check the most appropriate box in the first column for the plaintiffs and the second column for the defendants. Demand. Enter the dollar amount being demanded in the complaint. Signature. This cover sheet must be signed by the attorney of record in the box on the second page of the form. If the plaintiff is represented by a law firm, a member of the firm must sign. If the plaintiff is prose, that is, not presented by an attorney, the plaintiff must sign.

3 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of LAW OFFICES OF MARJORIE BARRIOS Marjorie Barrios, Esq. (Bar No.: P.O. Box 00 San Bernardino, CA 0 Office: (0-000 Facsimile: ( mbarrios@mbarrios.com Counsel for Plaintiffs, Newberry, et al. In re: CITY OF SAN BERNARDINO, CALIFORNIA UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA RAYMOND NEWBERRY; PATRICIA MENDOZA; MARIA ABOYTIA; JUANA PULIDO; JESUS PULIDO; JONATHAN PULIDO; RICHARD GONZALEZ LOZADA; MELINDA MCNEAL; BERTHA LOZADA; MILDRED LYTWYNEC; NICHOLAS LYTWYNEC; GLORIA BASUA; LIZBETH BANUELOS, CARLOS OCHOA vs. CITY OF SAN BERNARDINO Case No.: :-BK-00-MJ ADV. No.: CHAPTER COMPLAINT FOR NON- DISCHARGEABILITY OF DEBT INCURRED BY DEBTOR FOR A WILLFULL, MASS VIOLATION OF CIVIL RIGHTS AND NON- DISCHARGEABILITY OF FEES INCURRED UNDER U.S.C. DECLARATORY RELIEF HEARING DATE TO BE SET BY SUMMONS Page

4 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of I. JURISDICTION AND VENUE. Jurisdiction is conferred on this court by the provisions of U.S.C.. Venue is proper because the bankruptcy is pending in this district and under U.S.C. 0. This is a core proceeding under U.S.C.. II. GENERAL ALLEGATIONS. The City of San Bernardino filed bankruptcy under Chapter in August of, a voluntary petition.. Due to a quirk in the bankruptcy law, the date of discharge is the date of confirmation of filing of the plan in a Chapter filing for most debts; not the date that the petition was filed, as is the case with Chapter filings.. In this case, no plan has been confirmed or will be confirmed for some time. This means there will be a three year plus, lag of time between the filing of the petition and confirmation of the plan.. Debts incurred post-petition, and pre-confirmation would be dischargeable by the City under this filing, that is those from August, until roughly May,. The City intends, and has intended for some time, to discharge all lawsuits filed against it for violations of civil rights that occurred after the City had filed the bankruptcy petition. The effect of this would be to make the City immune for civil rights violations incurred post-petition and act as a get out of jail free card, in the parlance of Monopoly, for violations of civil rights, even intentional ones, inflicted post-petition and pre-confirmation. This period will Page

5 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of exceed three years, as the City filed for bankruptcy in August of and confirmation is not expected until May of.. Because the City also enjoyed the protection of the automatic stay provisions of the Code, it also could not be subject to legal process, or sued for post-petition violations of civil rights, as such, a lawsuit would violate the automatic stay provisions. This stay has existed for the three plus years the City s bankruptcy petition is, and was, pending.. This atmosphere led the City to conclude it was unaccountable to its citizens for violations of civil rights that it inflicted post-petition, as it could not be sued due to the automatic stay, or be compelled to pay for its behavior, as any lawsuits against the City would be dismissed with the confirmation of the plan.. Into this milieu stepped Mayor Carey Davis and the City s Chief of Police in August of.. Prior to August of, the City had a policy, program, and custom of entering entire complexes with one inspection warrant. Three times complexes with fifteen to forty units, were entered with one inspection warrant. The warrants always sought forcible entry, entry without the tenant present, and were nonotice warrants, meaning residents of the complexes were awoken to armed police officers demanding entry. The warrants were alleged to be inspection warrants procured under the Civil Code, but were in fact, criminal search warrants. The warrants were not directed to code inspection personnel, but law enforcement. Page

6 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of. The policy, program and custom, however, had a darker side. County Probation, State Parole, and a host of other agencies were invited by the City or conspired with the City, to use an inspection warrant to allow police authorities, including County Probation officers to search homes, question occupants, make lists of who lived in the homes, and in general, raid apartment complexes in poor neighborhoods.. What complexes were to be raided was left to the sole discretion of the Police Department, and how the searches were conducted under the sole discretion of whomever conducted the searches. Armed County Probation officers entered apartments with firearms drawn and searched the apartments for people. The effect of this policy, custom, and program was to engage in the wholesale violation of the civil rights of the occupants of the homes. The neighborhoods where the searches took place were always minority neighborhoods. The rights of those occupants to be free from unreasonable searches and seizures rested on the caprice of law enforcement.. The custom, policy, and program of searching apartment complexes with an inspection warrant was a clandestine one until August of.. In August of, the Mayor unveiled a new get tough on crime program. The Chief of Police would later label it be good or be gone. The policy program and custom was the same as had been going on prior to this time extensive searches of multiple homes with a pre-textual code inspection warrant would take place, searches by County Probation and every other agency the City could think of to search the complexes, compiling lists of tenants including Page

7 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of their identification numbers. The idea was to harass occupants of the complex to such an extent that those who the City viewed as the criminal element and those who stand in direct defiance of us would be compelled to move. The target this time was another complex in another minority neighborhood Edgehill Apartments on West rd Street in San Bernardino.. A pre-textual warrant was procured. It had the standard provisions no notice, forcible entry, entry without the renter present. The warrant was a charade and violated every known tenet of the Fourth Amendment. A media consultant was hired to broadcast the raid. News reporters from television and print media were invited to tag along and film and photograph the raid. The City knew that the media presence was illegal under Wilson v. Layne, U.S. 0 (, but chose to have the media at the raid regardless because it knew the bankruptcy stay and discharge would prevent any suits. The City enjoyed the immunity of bankruptcy, and abused it. The entire complex was raided, apartments searched, people rousted from their homes at gunpoint. Children witnessed their parents rousted from their homes, identification demanded, and questions asked about who lived at their homes and if they did drugs, were criminals, and what they were doing. It is hard not to imagine that the children were left with the impression that their parents were criminals, for that is how they were treated. The City Attorney and the Chief of Police went on live television and announced their new tough on crime policy.. The grossest insult, however, was left for social media. The Mayor and the Chief of Police posted photographs of the interiors of the tenants apartments Page

8 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of that had been forcibly entered into, including bedrooms and bathrooms and ranted about how the people who lived in places like this could be good or be gone and that this is just the beginning.. The City undertook this policy with the explicit knowledge it could not be sued due to the automatic stay and any judgments as a result of the conduct would be discharged. For the first time in history, a municipality used a bankruptcy stay to enact, enforce and excuse a blatantly unconstitutional, intentional, violation of civil rights.. This complaint challenges the dischargeability of the debts incurred as a consequence of the City s intentional torts, post-petition. FIRST CLAIM FOR RELIEF. Plaintiffs re-allege all prior allegations from this complaint as if fully set forth herein.. The debts incurred by the City in the form of the claims filed against it for those persons who were victims of the City s intentional violation of citizens rights should not be discharged and are not dischargeable, and Plaintiffs petition this Court to make that ruling.. Congress, as a matter of law, never intended the bankruptcy laws to shield a municipality from an unconstitutional policy that was intentionally enacted by the municipality to violate citizens rights. The claims incurred cannot be discharged based on the fact that they are willful, intentional violations of civil rights. Page

9 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of. Plaintiffs have a First Amendment right to petition the government for relief that cannot be traduced by the bankruptcy code.. Plaintiffs constitutional rights as national citizens under the Fourth, Fifth and Fourteenth Amendment cannot be abrogated by the bankruptcy code.. Plaintiffs requests that the Justice Department be requested to intervene in this action pursuant to U.S.C. 0(a.. Plaintiffs request reasonable attorney s fees and costs of bringing this action in this forum under U.S.C.. SECOND CLAIM FOR RELIEF. Plaintiffs re-allege all prior paragraphs of this complaint as if fully set forth herein.. As a consequence of the City s conduct, the Plaintiffs have incurred attorney s fees in enforcing their civil rights. The City is obligated to pay this cost, if its policy was unconstitutional, under U.S.C... The City seeks to have this debt discharged.. The debt is a non-dischargeable necessary cost of administering the City s business as it was incurred pursuant to the City s policy, program and custom. Congress clearly indicated in U.S.C. that attorney s fees awarded were awarded as costs and such costs do not fall within the rubric of a dischargeable claim, or indeed any claim at all, in the bankruptcy code.. If attorney s fees awards under Section are a claim within the bankruptcy code and not a necessary expense incurred by the City then the fees still remain an undischargeable claim. Congress never intended for attorney s Page

10 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of fees to pursue civil rights actions to be dischargeable where they were incurred as a consequence of an intentional violation of civil rights. Plaintiffs seek this Court rule that attorney s fees are non-dischargeable for deliberate civil rights violations perpetrated post-petition by a debtor municipality. 0. Plaintiffs requests that the Justice Department be requested to intervene in this action pursuant to U.S.C. 0(a.. Plaintiffs request reasonable attorney s fees and costs of bringing this action in this forum under U.S.C.. THIRD CLAIM FOR RELIEF. Plaintiffs re-allege the prior paragraphs of this complaint as if fully set forth herein.. Whereas, an actual controversy exists between the City of San Bernardino and the Plaintiffs whether the damages accrued for an intentional post-petition violation of civil rights by a debtor in a municipal bankruptcy may be discharged in Chapter and whether attorney s fees accrued thereunder are dischargeable in this Court, Plaintiffs hereby request public judgment that the debts accrued as a result of the intentional post-petition civil rights violations by the City are not dischargeable and the costs incurred under U.S.C. equally are not dischargeable.. Under U.S.C. Plaintiffs pray for declaratory judgment on the first two causes of action of this complaint. Page

11 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of. Plaintiffs seek attorney s fees and costs of bringing this action in this forum under U.S.C.. FOURTH CLAIM FOR RELIEF. Plaintiffs re-allege the prior paragraphs of this complaint as if fully set forth herein.. Implementation of the unconstitutional policy, program, practice and/or scheme was undertaken by numerous City employees.. Those employees are liable to the Plaintiffs and others for the actions that they undertook, both in their individual and official capacity.. The City in its initial disclosures has amorphously stated that the plan of discharge shall include certain third parties without identifying them; 0. On information and belief, the Plaintiffs believe the City intends to attempt to discharge non-parties to the bankruptcy, specifically, City employees for their actions in this case.. Such discharge would be contra to existing law as the City employees are not parties to the bankruptcy.. Whereas an actual controversy exists between the parties as to the dischargeability of third parties, specifically, City employees, the Plaintiffs request a public judgment that the current filing does not discharge third party City employees from their liabilities in this case and has no effect of the legal relationship between the Plaintiffs and City employees. Page

12 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of. Plaintiffs further seek attorney s fees and costs of suit for this cause of action. FIFTH CLAIM FOR RELIEF. Plaintiffs re-allege all of the prior paragraphs of the complaint as if fully set forth herein.. The City is statutorily obligated, and is believed to be contractually obligated, to indemnify the employees for any damages and/or actions arising in the course of the employees employment.. The City in its initial disclosures has stated that it intends to discharge certain third parties with its filing, without identifying how or what legal theory allows the discharge and whom is being discharged.. Plaintiffs, on information and belief, allege that the City intends to discharge its statutory duty to indemnify City employees in the final discharge plan.. Plaintiffs assert that such a discharge would be contra to existing law, and the City cannot discharge its statutory duty under existing case law.. Wherefore Plaintiffs pray for a public judgment that the City s duty to indemnify City employees is not discharged or dischargeable in this proceeding. 0. The Plaintiffs seek costs of this suit and reasonable attorney s fees for this cause of action. Page

13 Case :-bk-00-mj Doc - Filed /0/ Entered /0/ :: Desc Complaint Page of WHEREFORE PLAINTIFFS PRAY:. That the claims for damages that were incurred as a result of the City s postpetition program, policy, and/or custom of searching entire apartment complexes with an inspection warrant, without notice, forcibly, be declared non-dischargeable in its bankruptcy;. That the claims for attorney s fees pursuant to U.S.C. that arise or have arisen, be declared non-dischargeable as necessary expenses; or that the fees be deemed non-dischargeable;. That declaratory judgment be made that the debts incurred as a result of the policy and the attorney s fees incurred thereby are not dischargeable expenses and that the Bankruptcy Code does not protect the actions the City undertook in this case;. That this Court request that the Attorney General intervene to determine the constitutionality of the discharge provisions in the bankruptcy code which allow a municipality to discharge post-petition debts incurred as a consequence of intentional violation of citizens rights by a municipality and/or attorney s fees arising under USC s provisions for those violations.. Reasonable attorney s fees for this action and costs of suit. Dated: October, LAW OFFICES OF MARJORIE BARRIOS /s/ Marjorie Barrios Marjorie Barrios, Esq. Counsel for Plaintiffs, Newberry, et al. Page