The seizure laws in CA are both convoluted while appearing specific, and they tend to work only for the government, and often the government will lie or get witnesses that end up lying, in order to push the seizure impound fees/costs.
For example, Penal Code Section 597.1– a postseizure hearing under this section was, in 2012, used for hearings concerning such administrative issues as the validity of the seizure or impoundment, the return of the animals, the liability for costs regarding the animals’ seizure and care. The hearing is designed to take place quickly before any criminal proceedings are commenced and does not concern ultimate decision on the issue of abuse or neglect.
Where an appellant in CA [Shasta County] appealed a case claiming that a postseizure hearing under the same code section, was an administrative hearing with criminal implications and should have offered a right to counsel, the Appeals Court stated that in a postseizure civil administrative hearing involving property DEPRIVATION, due process is afforded where notice and opportunity to be heard on the seizure is afforded.
So we would think that if NO opportunity was ever afforded to be heard, then due process was NOT afforded, right?
HSUS in past several years, filed to have the law changed where NO postseizure hearing is required when a WARRANT (upon probable cause) has issued. NOW– why do we think HSUS wanted to get rid of that pesky postseizure hearing? We can tell you why.
Just in case the warrant was NOT any good– this would eliminate the owner’s right to contest it in a CA administrative hearing, it would force the owner to get into criminal court, it would cost the owner more money, and by then the fees for impound will have already been levied– THAT’S why….!
Also note, from FN#4 in Mr. Painter’s unpublished case at: http://www.courts.ca.gov/opinions/nonpub/C068408.PDF , involving horse seizure, that “Painter has also forfeited, for “[o}obvious reasons of fairness,” his argument, raised for the first time in his REPLY BRIEF (our emphasis) — that the county failed to demonstrate exigency or any other basis, to excuse it from first obtaining a warrant before seizing Painter’s horses.”
[Mr. Painter is NOT the Susanville 70 horse owner;]
…..Painter took a plea deal and now cannot file a 42 USC 1983 claim since taking a plea is equal to a guilty plea; we were told he did not intend to enter a guilty plea + his judgment was deferred entry of judgment but that indicated he could not appeal anything since there was no judgment. The moral of the story is IF you have a good case of improper seizure by or for the seizing authority, you cannot take a plea deal and then sue the government in California. You must be either exonerated or win at trial first.
This area of law is fraught with exceptions and unless your case is extremely clear cut, the cases tend to take many years, like 5-10 years, and they are usually appealed. Also the discretionary equitable tolling rears its ugly head and in some cases, defendants believe they have X time to file their cases but in fact have Y time to file, and miss the statute of limitations [SOL]. See http://www.justia.com/trials-litigation/docs/caci/400/457.html general claims; and http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=05-1240 for 42 USC 1983.
Also in government cases there is often a mandated tort claim statute of limitations which is very very short, it could be only several months. It does not hurt to file a claim early but it is deadly to miss the SOL.
This is EXACTLY why we keep harping on the “Susanville 70” horse case seizure:
1. Notorious Timothy M. Ryan of Irvine, Bank attorney for B of A and Wells Fargo,drafted+ filed the “Receiver’s” motion to seize horses, but attorney Ryan termed it ‘surrender horses’ to Lassen County, and said there was medical exigency in court. Note that a “Receiver” is considered an arm of the Court, and must be NEUTRAL. Horse owner was never allowed to oppose a seizure nor present witnesses, even if termed surrender. Lassen County/Receiver left the horses on premises of owner for nearly a month, and there were no exigent medical conditions; had there been such conditions, the seizing parties would have had to address it very quickly, since they had no warrant.
1.1 Then Grace Fdn and others removed horses after banks purportedly paid Grace Fdn $40,000 to take them into what was allegedly, temporary custody. Owner had no abuse charges pending, no citations, no nothing. Owner filed bankruptcy to stop the banks and Lassen county. Although Lassen has alleged up to 65 or 70 counts– apparently now, the seized horses are not the horses that are counted in the alleged abuse?
It was at that point that attorney Ryan went to Bankruptcy Court, and gave court the idea that “the police power” was used to seize the owner’s horses, when in FACT, Ryan himself drafted the “Receiver’s” motion to seize/give horses purportedly, to Lassen County. Only Lassen County never took physical possession. It was not Lassen County filing the motion. It was allegedly Lassen County claiming they were just handing the property off? Really? Did Lassen County bother to check the law re seizure of animals? Did Ryan pretend his “Receiver” had actual authority to seize personal property due to medical exigency when there was no such thing? …Can one just start seizing property of another based upon contracts with “Receivers” who then are paid and further indemnified by the same seizing party, who already engaged in fraudulent and improper conduct in litigation?
1.2 As we can see, it was the attorney Timothy M. Ryan’s MOTION to seize and remove the horses, and it was attorney Ryan that DRAFTED the “Receiver’s” motion to do so, and it was attorney RYAN that filed and argued the seizure of the horses to the court, At all times, attorney Timothy M. Ryan controlled the “Receiver” which was only a rents and profits receiver, NOT an equity Receiver. AND Ryan also executed a written indemnification of the RECEIVER by signing a contract with her !! To best of our knowledge, that is illegal. Only an equity recovery receiver can normally start seizing property/assets.
1.3 In Lassen county Court, on cross examination, the “Receiver” admitted she had NEVER done a “receivership” in her life before, and that she got legal information from the Ryan firm and Eugene Chittock, Esq. Further, attorney Ryan and underling attorney Beardsley who no longer works for Ryan, actually prohibited the horse owner from EVER going to his own land to view or retrieve his OWN personal possessions inside the residence since 2011, PLUS the “Receiver” was instructed to call police if owner should try and even LOOK at his property, or be on the land. Thus horse owner’s case was worsened after the Chapter 7 Trustee was replaced by the “Receiver” who then never allowed horse owner ANY access to anything he ever owned. Instead, Receiver allowed the ex girlfriend of horse owner to take whatever she claimed was hers from the property.
1.4 Nonetheless, the “Receiver” quietly sued the banks/Ryan last December 2012, and was paid off, and she dismissed the lawsuit. So what we have here, is a bank attorney (Ryan) committing fraud, then indemnifying the Receiver” who, on paper, is helping to do the fraud, then the banks pay off the “Receiver” or Ryan pays off “Receiver” for having helped do it. Does anyone see something very very wrong here? Would anyone be surprised if attorney Ryan had started selling off his own property in 2011 after client was forced into bankruptcy?
1.5 Remarkably, many of these facts are recorded into the Eastern District Bankruptcy Court file, Sacramento, documenting that this happened [fact that Ryan was actually acting as the Receiver himself– a puppeteer, no less] .. Ryan made no opposition. Also filed, were some of the choice “Facebook” postings done by Ryan re his personal dislike and disparagement of horse owner, while Ryan held out the horse owner’s ex girlfriend to be a saint. That ex girlfriend “saint” who was seen by witnesses on horse owner’s property in middle of night, when animals were being poisoned or killed? The same saint that threw out kittens she bred/then drowned to death, which she then threw in the trash??! That is the person that attorney Ryan took sides with. Yes, he took sides with the “ex girlfriend” to try and massacre the horse owner.
1.6 But Ryan did lie to the bankruptcy court, by filing a copy of an order from the state court, that had never been served on either owner or his bankruptcy attorney. Ryan claimed that Ryan got a signed order [for equitable lien/mortgage, morphed into reformation+first deed of security over the horse owner’s land] from Nov- December 2011 from Judge—it is doubtful whether this order is any good, since the order was purportedly signed, but NEVER entered into the Superior Court official record. Many documents can be filed, but if not entered, they should be stamped filed but not entered or similar. Or received, but not entered,etc.
All State courts have an entry (received) file and an actual filed “file.” A document can be entered which is not considered or allowed to be “filed” such as if it is late or has other issues. Instead, a naked proof of service of an order was filed by Ryan–which is not a judgment, nor did it have an order or judgment attached. Then in July 2012, the judgment for the same thing, was actually entered and filed, thereby giving horse owner the right to appeal. At that point Ryan or banks claimed it was too late for horse owner to appeal?
2. Lassen County AC filed nothing, issued nothing, drafted nothing, and did not give proper testimony, if any, nor did they issue a warrant, citation, or any other form of administrative document, to horse owner, that we are aware of, prior to seizure, during seizure or within 2 months of seizure.
3. Lassen County suddenly issued a warrant in October 2011, approximately 3 months after all animals had been seized and removed from the property, …and that’s AFTER attorney Ryan GAVE the district Attorney–the “prosecution package” to nail the horse owner?
Ryan even handed over a FLASH DRIVE with all the data? Since when do bank attorneys produce prosecution packages for the government unless they are working some deal? There is a written document (letter) written by Ryan which goes along with the flash drive. Hard to believe but true. Do we have a copy ? Yep. There are thousands of pages submitted that really have nothing to do with any evidence in the case.
3.1 A witness came forward indicating that a certain attorney offered incentives to snitch or lie about horse owner, or otherwise engage owner’s property via stealth. Another witness is purportedly in a local county jail under some kind of protective custody. It was later found that horse owner’s friend (an attorney) had his email hacked and then the District Attorney ended up with confidential emails from and to horse owner and friends, and even owner’s attorney in the litigation?
4. In current litigation, Lassen’s attorneys are claiming they only followed the “Receiver’s order” filed by the bank attorney Ryan. In other words, they had nothing to do with any seizure, they just followed Ryan’s nonsense without even knowing what they were doing? Then more than 3 months later, Lassen files 70 counts of animal abuse? Had there been any “abuse” at all, it should have been noted and filed at the time it was discovered. Failing to do that indicates that AC would have been negligent and guilty of not doing anything–thus it is apparent that there was nothing to report.
Because there never was any animal “abuse” Lassen had never filed anything because there was nothing to file.
5. Instead, attorney Timothy M. Ryan the bank’s attorney, simply seized upon USING the ANIMALS TO GET HIS FORECLOSURE DONE, TO TAKE OWNER’S LAND, TO MAKE MORE MONEY–AND TO BRAG ABOUT IT ON FACEBOOK AND wherever online.
The banks ADMIT they do NOT own the horse owner’s 40 acres. They do not have anything proving colorable title, They pretend they do. But they do not have it. What they have is a strung-together-nightmare set up by attorney Ryan, and even the court clerks were involved (and likely paid off or were switching out documents or something) — as we were told that at least one clerk got laid off the job. We did not try and verify that. However it could easily be true.
6. Then Ryan got a “prosecution” package to the District Attorney, and bragged about that. The end result is that attorney Ryan is in some deep shit, is being sued, was taken off the case, the foreclosure was halted, an appeal was filed, and now the banks have to FIX whatever Ryan ruined. And we havent even started talking about violating the bankruptcy stay and other rules. Let’s just say it’s probably several million bucks (being nice–it’s way more than several) and the fraud that Ryan created….. Now THAT’S legendary.
7. He (bank attorney Timothy M. Ryan) should go down in history as one of the most egotistical attorneys that ever lived, who could not stand to be confronted, and who would manage to do so many improper actions within one case that was covered up by more than several people, and then this attorney used his own personal vendetta to string up a horse owner so the banks could more easily take land that they did not own, using a fake “Receiver” who was indemnified personally by bank attorney and then paid off, all the while attorney Ryan is treated to his “free” malpractice attorney because he had “insurance.” His insurance should not cover FRAUD. Especially the fraud appearing in the Lassen court case.