Alameda County Defendants' Request for Judicial Notice and ...

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219-21). The Plaintiffs continue by asserting that under Proposition 36 that a drug offender "...may have his or her probation revoked if the court finds that the probation violation ... [by thedrug offender] ... is proved ... " (Complaint, p. 4:23-26)In contrast, Plaintiffs argue that SB 1137 modified Proposition 36's provisions byallowing that: "... SB 1137 authorizes a courtto impose jail sanctions ..." (emphasis added,Complaint, p. 5:20-22) and further "[ilf a second drug-related violation is proved but probation isnot revoked, SB 1137 authorizes a court to impose jail sanctions ..." (emphasis added,Complaint, p. 527-28). Plaintiffs further allege that "SB 1137 authorizes courts to remand thedefendant into custody for up to 30 days [and]... if a court keeps the defendant on Proposition36 probation, the court may impose jail sanctions ..." (emphasis added, Complaint, p. 6:4-7)"Additionally, SB 1137 authorizes courts to exclude certain defendants from Proposition 36probation ..."(emphasis added, Complaint, p. 6:14-15) Finally, Plaintiffs' assert that SB 1137will cause irreparable harm (Complaint, p. 7.:4), but they fail to allege how such harm would becaused to these Plaintiffs or how such harm could possibly be caused to themselves by CountyDefendants. Indeed, other than being named as parties, County Defendants are otherwisenever even mentioned in Plaintiffs' Complaint, Points and Authorities or Declarations.Plaintiffs allege that," ... incarceration that will result under SB 1137 - incarceration that isprohibited by the terms of Proposition 36 -will itself constitute irreparable injury to unnameddrug offenders," yet utterly fail to assert how this harm would be caused to them by CountyDefendants. (Complaint, p. 7:8-15) Indeed, Plaintiffs' prayer for relief in the Complaint (p.10:6-8) requests "[a] temporary restraining order, preliminary injunction, and permanentinjunction restraining Defendants from implementing, enforcing, or giving effect to any of theprovisions of SB 1137 because certain of them are unconstitutional ...," yet Plaintiffs fail toallege facts that assert that County Defendants have or are "implementing, enforcing or givingeffect to any of the provisions of SB 1137."Ill//I111County Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 3
IV.COUNTY DEFENDANTS GROUNDS FOR DEMURRER ANDMEMORANDUM OF POINTS AND AUTHORITIES1. Plaintiffs have failed to allege facts of any irreparable harm by CountyDefendants to Plaintiffs and therefore have failed to state a cause of actionfor injunctive relief, under C.C.P. 5 430.10(e).This action is illogical and unwarranted as to County Defendants because none of thelamed Plaintiffs, or even their declarants, assert that he or she is a non-violent drug offendervho is about to be prosecuted or is otherwise threatened to be placed in the County jail by the:ounty Defendants under SB 1137. Though the Plaintiffs allege harm to their pocketbooks will)e caused by the waste of tax dollars (but fail to allege that they will have to pay any greateraxes) by the incarceration of non-violent drug offenders, they fail to allege that the County3efendants -- named in their official capacities as elected district attorney and sheri - have?ither adopted SB 1137 or have threatened to enforce it against the named Plaintiffs.4dditionally, there are no facts alleged that either of the two County Defendants, unlike the:ourts, has the ability to incarcerate or place "non-violent drug offenders in jail". Indeed,'laintiffs' Complaint makes clear that under both Proposition 36 and SB 11 37 incarceration is athe discretion of the California courts. The sole alleged basis for relief against CountyIefendants is that Petitioners are taxpayers and, under C.C.P. 5 526(a), that they can assert;ome waste of taxpayers' funds as a result of the implementation of SB 1137; that bare claimalone, however, is insufficient for relief against County Defendants. "Nowhere in the Complaint)r elsewhere has ...[ taxpayer] ... asserted any threat or injury to himself personally from thexdinance. His interest appears to be limited to his taxpayer's pocketbook, an interest which is;ufficient to confer statutory standing to maintain ...[ an action under section 526(a)] ... but to~hich to our knowledge has never been a substitute for the high degree of existing orhreatened injury required for prejudgment injunctive relief." (Citations omitted, Leach v. City ofSan Marcos (1 989) 213 Cal.App.3d 648-662).A fundamental basis for declaratory relief is that an actual, present controversy existsIver a proper subject. (Levy v. City of Santa Monica (2004) 114 ~al.~pp.4* 1252-1259):ounty Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 4
Page 1: I1I II IRICHARD E. WlNNlE [68048]Co
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Page 6 and 7: TABLE OF AUTHORITIESSTATE CASES'978
Page 8 and 9: I. INTRODUCTIONThis demurrer is bro
Page 12 and 13: Indeed, Plaintiffs' Complaint and M
Page 14 and 15: unconstitutional, as of this point
Page 16 and 17: in favor of the Legislature's actio
Page 18 and 19: defendant). For the foregoing reaso
Page 20: I II IDECLARATION OF SERVICEGardner

Alameda County Defendants' Request for Judicial Notice and ...

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