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If you haven't already done so, please read Defect # 6 and Defect # 10 on the
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Added 2-16-05, updated 10-25-10

Costa Mesa Documents - Set # 11 / Santa Ana Documents - Set # 2

Fischetti Appeal Decisions

These two cases are examples of a foundational defense (see Defect # 6 and Defect # 10 on the Home page).

Fischetti won two appeal decisions, one in 2005 and one in 2008.   Both are discussed on this page.

The 2008 Fischetti Decision

The 2008 decision, on a Santa Ana ticket, clarified the requirement for warning tickets.  The decision said that a city must issue warning tickets at each camera it installs, not just the first one in town.

The Appellate Division ordered that the case be published, but the cities of Santa Ana and West Hollywood petitioned the Supreme Court to de-publish it, and in Feb. 2009 the Supreme Court ordered depublication.  

2008 Decision

The Anna V. Decision

The December 2008 Fischetti decision was the third time the Orange County Appellate Division had ruled on the warning ticket issue.  The first time was in the 2005 Fischetti case involving a Costa Mesa ticket (details below).  Then, in August 2008 the Appellate Division ruled a second time - in Anna V. - on a Santa Ana ticket.

  The 2005 Fischetti Decision

The 2005 decision was on a Costa Mesa ticket.  Fischetti won his appeal, but the City tried to overturn the decision.  On May 11, 2005 the California Supreme Court denied the City's petition for review and application for stay.  So, the decision in favor of appellant Fischetti is final.  But it was not published.  The documents from the 2005 decision are on this page, a little further down.

The issue, in a nutshell (excerpted from Defect # 6 on the Home page) -

Vehicle Code Section 21455.5 says, in part:  "Prior to issuing citations under this section, a local jurisdiction utilizing an automated traffic enforcement system shall commence a program to issue only warning notices for 30 days."

But it doesn't make it clear whether a city having a pre-existing system is required to issue warning notices when it adds a new camera.

In January 2005 an appellate court ruled, in favor of Defendant/Appellant Fischetti, that Costa Mesa erred when it failed to provide 30 days of warning notices when it added the camera that ticketed the Defendant.  In that decision, the appellate judge wrote, "Nor would it make sense, from the perspective of the motorists for whom the statutory requirements were intended to provide protection, for the geographic scope of the 30-day grace period to depend arbitrarily upon the size of each municipal jurisdiction."

History -  In a request dated March 1, 2005, the City of Costa Mesa asked a higher appeals court (Fourth District)  to "stay" the decision, pending review at that higher court. 
However, per the March 16 Orange County Register newspaper, the Fourth District Court of Appeals denied the appeal and the stay, and the City decided to  take the case to the California Supreme Court.  The City also had requested a re-hearing in county Superior Court, but a March 22 Register article said that the court denied the request.
The City filed its Petition for Review with the Supreme Court on March 14.  The Court can take as much as ninety days to decide whether it will review.  On May 11 the Court declined to review and the appeal decision immediately became final.  
However, the decision was not published, so cannot be cited as precedent in other cases, except possibly in Orange County.  In 2008 there was a very similar decision - see P. vs. Anna V., on the Index page linked below.  The general issue of which decisions get published, and which don't, is under study.  See for more information.

Click on these links for the other documents in the 2005 Fischetti appeal (these are in chronological order):
Appellant's Opening Brief
City's Response Brief
Appellant's Closing Brief
The 2005 Appeals Decision (on this page, below)
City's Petition for Rehearing
Feb. 28 Minute Order Denying City's Petition
City's Request for Stay
March 15 Minute Order Denying City's Request for Reconsideration
City's March 14 Petition for Review by the CA Supreme Court
Other Cities' Letters (to Supreme Court) in Support of Petition for Review

This appeal decision (below) was re-typed from the original document.
Edits or explanatory notes by the editor are in double square brackets [[  ]].
This decision may be freely copied and distributed, so long as credit is given to .
Many other cases and /or transcripts are available - see the Index to Transcripts, Briefs, and Court Decisions.

For more details about the City of Costa Mesa, see the City's entry on the Camera Towns page.

Appeal Decision - 2005


FILED:  JAN. 31, 2005

CASE NO. AP-14168

Plaintiff and Respondent,


Defendant and Appellant.
from the

[[Originally heard by]] HON. MARK J. SHEEDY, COMMISSIONER


     Vehicle Code Section 21455 (c) [[21455.5 (c)]] requires that "a" single governmental agency, such as respondent City, undertake "all" the listed activities comprising operation of an automated enforcement system.  However, the evidence in this case is undisputed that the signal phasing "and the timing thereof" at the intersection in question was controlled not by respondent City as required by Section 21455.5(c) (2) (E), but rather by Caltrans.  (Settled statement at 2:4-6.)  Respondent's reliance on Section 21455.5(d) is misplaced, since that provision only applies where operation of the system has been "contracted out" and "the governmental agency" maintains overall control and supervision - the record does not indicate any contractual agreement between respondent City and Caltrans with regard to the system, and respondent's own evidence shows that overall control of the intersection resided with CalTrans.
     In addition, reversal is warranted based upon respondent's failure to implement a 30-day grace period.  (Settled statement at 2:3.)  Respondent's construction of Section 21455.5(b) appears to be inconsistent with the structure and purpose of Section 21455.5 as a whole.  Because Section 21455.5(a) provides that "the intersection" may be equipped with an automated enforcement system, "automated enforcement system" in Section 21455.5(b) cannot refer to a municipality's overall automated enforcement plan, but must instead refer to each individual automated system operated at an intersection within the municipal jurisdiction.  Nor would it make sense, from the perspective of the motorists for whom the statutory requirements were intended to provide protection, for the geographic scope of the 30-day grace period to depend arbitrarily upon the size of each municipal jurisdiction.  Tellingly, respondent itself offers legislative history of a proposed 2003 amendment to Section 21455.5 (SB 780) which would have expressly provided for the grace period "during the first 30 days after the first recording unit is installed" - the omission of this language from the amendments enacted in 2003 [[by AB 1022 - see Action page]] must be viewed not as an intention to adopt the omitted language, as respondent asserts, but rather as legislative rejection of a link between the grace period and the installation of the municipality's first automated enforcement system.
     Respondent's request for judicial notice is granted as to Exhibits A, B and D.  The judgment is reversed, with direction that the charge be dismissed.

CHARLES MARGINES, Judge [Appellate Division]