City's Request for Stay

Case No.
Orange County Superior Court
Harbor Justice Center
Case/Citation No.: CM46167PE
Hon. Mark J. Sheedy, Commissioner

THE CITY OF COSTA MESA
Petitioner,
v.

APPELLATE DIVISION OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, ORANGE COUNTY, CENTRAL JUSTICE CENTER
Respondent

[[  ]] FISCHETTI,
Real Party in Interest

[STAY REQUESTED]

VERIFIED PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION OR OTHER APPROPRIATE RELIEF AND REQUEST FOR IMMEDIATE STAY; MEMORANDUM OF POINTS AND AUTHORITIES

CITY OF COSTA MESA
Kimberly Hall Barlow, City Attorney
State Bar No. 149902
Marianne Milligan, Sr. Deputy City Attorney
State Bar No. 170740
77 Fair Drive
Costa Mesa, California
Telephone:        (714) 754-5399
Facsimile:         (714) 754-4949

Attorneys for Petitioner
City of Costa Mesa

INTRODUCTION

On or about October 3, 2003, the City of Costa Mesa installed an automatic red light enforcement camera (the “Camera”) at the intersection of Newport Boulevard and 19th Street pursuant to California Vehicle Code section 21455.5. On or about January 12, 2004, Defendant was issued a citation (No. CM46167PE) for violation of California Vehicle Code section 21453(c), entering an intersection on a red light. The Camera at the southbound left turn lane of Newport Boulevard and 19th Street captured said violation.  At the Court trial on March 1, 2004, Costa Mesa Police Officer Wadkins testified on behalf of the People at the trial and Defendant, [[  ]] Fischetti testified on behalf of himself. There were no further witnesses and the Trial Court’s Settled Statement on Appeal is included in the Court’s record on appeal.

This case presents serious and urgent questions as to the interpretation of California Vehicle Code § 21455 et, seq. which could affect many cities throughout California.

The issues presented are:

1.         Whether California Vehicle Code § 21455(c) prohibits more than one governmental agency from operating an automated enforcement system.

2.         Whether California Vehicle Code § 21455(b) requires a 30 day notice and warning period before the installation of each individual “approach” or only before the installation of a city’s overall automated enforcement “program”.

AUTHENTICITY OF EXHIBITS

All exhibits accompanying this petition are true and correct copies of original documents on file with respondent court. There is no transcript of the original trial, only a Settled Statement on Appeal into which Petitioner did not have input, because Petitioner was not provided with notice to enable Petitioner s participation in the preparation of said Settled Statement. All pleadings filed by Petitioner and Defendant in regard to the Appeal are attached as Exhibits "1” and “2” to Petitioner’s Request for Judicial Notice, filed separately herewith. The exhibits are incorporated herein by reference as though fully set forth in this petition.

DESIGNATION OF PARTIES

Petitioner is the City of Costa Mesa (hereinafter “City” or “Petitioner”). Defendant [[  ]] Fischetti is the Defendant (hereinafter “Defendant’).

IMMEDIATE STAY ORDER REQUESTED

The Respondent Court by decision dated January 31, 2005 has effectively shut down all operations of the City’s automated enforcement system (“AES”) at three of the busiest intersections in the City. Not only is this costing the City and taxpayers hundreds of thousands of dollars a month, but the safety aspects of the AES cannot be used. The issues presented are matters of statewide importance as AES are used by numerous governmental agencies throughout the State.

It is the City’s contention that not only is the Respondent Court’s decision erroneous, but that issuance of an immediate stay order, staying enforcement of the Respondent Court’s order pending a determination by this Court of these very important issues presented by this Petition is necessary.

PETITION

By this verified petition, Petitioner hereby petitions this Honorable Court for an Immediate Stay and Writ of Mandate and/or Prohibition or for such other relief as may be deemed appropriate, directed to the Appellate Department of the Superior Court of the State of California, for the County of Orange, commanding said court to set aside its decision and to reinstate Defendant’s Conviction. By this verified Petition it is alleged as follows.

1.         On or about September 17, 2001, City held a public hearing and the City Council approved the establishment of a red light automated enforcement system citywide at various intersections.

2.         On or about May 21, 2001 a 30-day warning period was placed into effect for the first intersection where the automated red light enforcement equipment was installed at Harbor and Adams in the City of Costa Mesa. Additionally, press releases were issued informing the public of the new system.

3.          On or about October 3, 2003, the City of Costa Mesa installed an automatic red light enforcement camera (the “Camera”) at the intersection of Newport Boulevard and 19th Street pursuant to California Vehicle Code section 21455.5.

4.         On or about January 12, 2004, Defendant was issued a citation (No. CM46167PE) for violation of California Vehicle Code section 21453(c), entering an intersection on a red light. The Camera at the southbound left turn lane of Newport Boulevard and 19th Street captured said violation.

5.         On or about March 1, 2004, in Department H14 of the Orange County Superior Court, Harbor Justice Center, Defendant appeared and entered a plea of not guilty and a trial date was set for April 15, 2004.

6.         On or about April 15, 2004, the trial was held in Department H14 of the Orange County Superior Court, Harbor Justice Center before the Honorable Mark J. Sheedy, Commissioner.

7.         Costa Mesa Police Officer Wadkins was the only representative of the City at the trial and testified on behalf of the People at the trial.

8.         Defendant testified on his own behalf.

9.         Commissioner Sheedy took the matter under submission and later that same day, found the Defendant guilty of the charge of a violation of California Vehicle Code section 21453(c), entering an intersection on a red light and ordered payment of a fine plus penalties and assessments totaling $321.00.

10.       Defendant thereafter filed a Notice of Appeal on May 13, 2004 and a Proposed Statement on Appeal on May 28, 2004.

11.       City filed a Proposed Amendment to Proposed Statement on Appeal on June 14, 2004.

12.       The Court did not notify the City regarding the hearing date for the proposed settled statement and proceeded to final the Settled Statement at a hearing on July 7, 2004 with only the Defendant present. Although the City had filed a proposed amendment, the Court failed to take into consideration the City’s proposed amendment.

13.       The Engrossed Statement was certified by Commissioner Sheedy and made a part of the record on July 13, 2004. A true and correct copy of said Engrossed Statement is attached hereto as Exhibit “A” and incorporated herein by reference.

14.       On September 17, 2004, the Appellate Division of the Orange County Superior Court dismissed Defendant’s appeal for having failed to comply with the briefing schedule.

15.       On October 27, 2004, Defendant was heard on his motion to vacate the Dismissal which was granted. At that same hearing, the City requested that the Engrossed Statement be remanded to the trial court to allow its participation. This motion was denied.

16.       A new briefing schedule was ordered and complied with by the parties and the hearing on appeal was set for January 27, 2005.

17.       On January 27, 2005, the parties submitted on their briefs and no oral arguments were heard.

18.       The Appellate Court rendered its decision on or about January 31, 2005. A true and correct copy of this decision is attached hereto as Exhibit “B” and incorporated herein by reference. The court reversed defendant’s conviction. The court ruled that California Vehicle Code Section 2 1455(c) requires that “a” single governmental agency must undertake all the listed activities comprising operation of an AES and since Petitioner shared the control of the intersection with Caltrans, petitioner had violated section 2 1455(c). Further, the court found Petitioner had not complied with section 2 1455.5(b) because City failed to implement a separate 30-day grace period upon the installation of an AES at each intersection. City was not served with a copy of said decision.  Despite having personally appeared at the hearing on appeal and having filed briefs in this matter, the Court, erroneously mailed the Notice of Entry of Judgment of the Appellate Division’s decision to the Orange County District Attorney’s Office and not to the City as it should have.

19.       City filed a timely Petition for Rehearing and Application for Certification on February 24, 2005 which is still under consideration by Respondent Court.

20.       The City alleges and believes that the Appellate Division erroneously interpreted California Vehicle Code § 21455.5 et. seq. and such interpretation has a substantial impact on not only City but on numerous other governmental agencies throughout California which have installed automated enforcement systems.

21.       The contentions in support of this Petition are fully set forth in the accompanying Memorandum of Points and Authorities which are incorporated by reference herein.

22.       Because the Appellate Division failed to give the City proper notice of its decision, Petitioner was not able to fully exhaust all procedural measures on appeal prior to filing this Petition for Writ; however, Petitioner has filed a Petition for Rehearing and for Certification to the Court of Appeal in connection with the Respondent Court’s decision, as to which no decision has yet been made by the Respondent Court.

23.       Petitioner has no plain, speedy or adequate remedy at law save this extraordinary Writ Petition.

PRAYER

Petitioner prays that this court:

1.         Grant an immediate stay of all further proceedings in the Respondent and Trial Courts pending a final decision of this court.

2.         Issue a peremptory writ directing the Respondent Court to vacate its order dated January 31, 2005, reversing the Trial Court’s finding of guilty and dismissing the charges against Defendant.

3.         Alternatively, first issue an alternative writ directing Respondent Court to vacate its January 31, 2005 order reversing the Trial Court’s finding of guilty and dismissing the charges against Defendant or, in the alternative, show cause why it should not do so and, thereafter, issue a peremptory writ directing Respondent Court to vacate its January 31, 2005 order and enter a new order to reinstate Defendant’s conviction.

4.         Award Petitioner its costs in this proceeding; and

5.         Grant such other relief as may be just and proper.

Respectfully submitted,

Dated: March 1, 2005 

CITY OF COSTA MESA

By:   [[signature]]
Marianne Milligan
Sr. Deputy City Attorney
City of Costa Mesa

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