2017-00224503-CU-CR

Dwayne Lamont Burgess vs. The State of California

Nature of Proceeding: Hearing on Demurrer

Filed By: Longyear, Van

This matter was set for this date for oral argument on the tentative ruling issued for the August 7, 2018 hearing.

The litigation coordinator shall make plaintiff available for the oral argument at 2:00 p.m. on August 29, 2018

The tentative ruling issued for the August 7 hearing is as follows:

Defendant Steve White’s Demurrer to the Complaint is unopposed, taken as a concession to the merits (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].), and is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action.

On April 19, 2018 the court sustained the demurrer of defendant Anne Marie Schubert’s, without leave to amend, to the complaint filed by self-represented plaintiff Dwyane Burgess.

The complaint commences with the following recitation: “Now Comes Aggrieved party (U.C.C. §1-201(2)) Dwayne Lamont Burgess (hereinafter Aggrieved

party), Sui Juris, Secured Party (U.C.C. §9-105), NON-PERSON (U .CC. §1-201 (27)), NON CITIZEN, NON-RESIDENT, NON-DEBTOR (28 U.S.C. §3002 (4)), NON-CORPORATED, NON FICTION, NON-SUBJECT, NON-PARTICIPANT in any government programs, a Living flesh and blood Man standing on the ground, Sovereign, under Special Appearance (Rule 8 (E)) not Generally, NON-DEFENDANT (U.C.C. §1-201 (14)), Holder-In-Due -Course (U.C.C. §3-302 (A) (2)) fall documentation (U.C.C. §5-102 (6)) of the “Entity” Cestui Que Vie trust Dwayne Lamont Burgess ©TM, representing the Corporate Fiction DWAYNE LAMONT BURGESS ©TM. Under no circumstances is the Plaintiff “Pro Se” as this Complaint is filed under the Holder-In-Due-Couse; Dwayne Lamont Burgess of the “Cestui Que Vietrust” of DWAYNE LAMONT BURGESS.”

Plaintiff’s Complaint seeks to have his criminal judgment of conviction overturned (Exhibit 3, p.3:15-21), contending that the court never had jurisdiction or “subject matter jurisdiction” to prosecute him. (Complaint, p.2, l. 7) He alleges no facts whatsoever regarding his conviction or any underlying facts. The complaint is confused. Burgess states he is “Appearing specially and not generally…” and “moves this Court for an Order which would obligate the State of California.. .to produce its alleged proof.. .of jurisdiction over this real flesh and blood man….” He has sued the

State, Steve White, presently a sitting Sacramento Superior Court judge and the former Sacramento County District Attorney, and the present District Attorney Anne Marie Schubert. He alleges that he was “prosecuted” by Defendant Steve White and seeks to overturn his criminal conviction. He alleges “that Steve White and or Successors prosecuted this Case without full disclosure of said jurisdiction of plaintiff…

.It is, in fact, the Prosecutors D/B/A: Steve White responsibility to prove, on the record .” [emphasis in original].

The demurrer is predicated on the following grounds: 1. Defendant, Steve White, is entitled to absolute prosecutorial immunity from this suit pursuant to California Government Code Section 821.6; 2. Defendant, Steve White, is entitled to immunity from this suit pursuant to California Government Code Section 818.4; 3. Plaintiff has failed to state sufficient facts to state a cause of action against Defendant, Steve White.

The plaintiff is incarcerated at the Deuel Vocational Center in Tracy, California. (Declaration of Van Longyear at ¶ 4)

California Government Code Section 821.6 provides absolute immunity from suit for ” .

. . [instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Plaintiff has not in any way alleged how Steve White, in his role as the District Attorney, harmed plaintiff other than by his role as prosecutor. To the extent plaintiff would argue Defendant is in some way responsible for somebody else’s conduct, Government Code Section 820.8 prevents recovery in this regard. Plaintiff has not pled a statutory exception to the immunity afforded by Section 820.8 and, when taken together with 821.6, there are no facts that will support a claim against the District Attorney based on a criminal prosecution. As noted in the moving papers there are no pleaded facts alleged that support a cause of action against White on any theory– whether based on statute, tort or contract. (MPA, p. 3, ll. 2-3). In any event, prosecuting a criminal action within the scope of his employment is an immune function, and this is so even if he acts “maliciously and without probable cause.” (Id.) Parenthetically, no such facts are alleged, the salient argument being that there was no “jurisdiction.”

As has been observed, the general rule and policy favors immunity for law enforcement officers, and Government Code section 821.6 bars the instant claims. By operation of Government Code sections 820.2 and 820.8, the district attorney is likewise immune. (see, e.g. Weaver v. State of California (1998) 63 Cal.App.4th 188, 197, 202. Hence, the district attorney is shielded from liability. County of Los Angeles v. Superior Court (2009) 181 cal. App. 4th 218, 230.

A court may sustain a demurrer with or without leave to amend. CCP 472a(c). Leave to amend a defective complaint should be denied where no liability exists under substantive law. Rotolo v San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.

A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. Blank v Kirwan (1985) 39 Cal.3d 311, 318. The burden of proving such reasonable possibility rests squarely on the plaintiff. Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041. Plaintiff has not met that burden as he has filed no opposition to the motion stating how the defects in the Complaint can be cured.

In this regard, a self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. ( Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944.) Indeed, a party may choose to act as his or her own attorney, but “such a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) As with attorneys, in propria persona litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

The prevailing party shall prepare a formal order of dismissal for the Court’s signature pursuant to C.R.C. 3.1312.