2-16-05, updated 10-25-10
Mesa Documents - Set # 11 / Santa Ana
Documents - Set # 2
two cases are examples of a foundational defense (see
Defect # 6 and Defect # 10 on the Home page).
Fischetti won two
one in 2005 and one in 2008. Both are
discussed on this page.
The 2008 Fischetti
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.
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.
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
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 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
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
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 nonpublication.com
for more information.
these links for the other documents in the 2005
Fischetti appeal (these are in chronological
The 2005 Appeals Decision (on this page, below)
28 Minute Order Denying City's Petition
Order Denying City's Request for Reconsideration
Petition for Review by the CA Supreme Court
Letters (to Supreme Court) in Support of Petition for
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 highwayrobbery.net .
Many other cases and /or transcripts are available - see
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.
Decision - 2005
JAN. 31, 2005
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
CASE NO. AP-14168
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff and Respondent,
[[ ]] FISCHETTI
Defendant and Appellant.
JUDGMENT ON APPEAL
HARBOR JUSTICE CENTER
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]