Mariposa Gazette

October 13, 2022

By GREG LITTLE Editor

A federal judge has handed another setback to Mariposa County in the case involving local resident Jerry Cox, who was falsely accused of rape and then had his property taken from him through the Mariposa County Superior Court.

Senior District Judge Anthony Ishii of the U.S. District Court, Eastern District of California, has ordered Mariposa County, along with two sheriff’s office deputies, to respond to the court by this week in regard to the case.

The case involves Cox, who once owned more than 400 acres of property near Bear Valley in Mariposa, and his federal lawsuit against Mariposa County, Ashley Smith and sheriff’s deputies William Atkinson and Wesley Smith. Ashley Harris is the woman who falsely accused Cox of rape and is now part of the federal lawsuit brought by Cox.

The judge just recently issued an order saying Harris remains part of the case and on Sept. 30, he issued another ruling after the county had filed a motion for dismissal. In fact, it was the seventh motion for dismissal filed by the county, something the judge emphasized in his ruling.

The complicated case against Cox has been in the court system for years. At one point, the Mariposa County Superior Court, through former Judge Dana Walton, ordered Cox’s property to be sold in order to pay a receiver who had been assigned to the case. The property was sold for $700,000, which at the time was roughly half of the assessed value.

Nonetheless, the judge went forward with the sale of the property and that, in part, is what prompted the federal lawsuit by Cox, which has now been working its way through the system for about two years.

Although the judge did allow two parts of the matter to be dismissed with prejudice, he also was straightforward in ruling key elements of the case will go forward and that could mean a date to set a trial in the near future.

In fact, the judge ordered pieces of the matter to be sent to U.S. Magistrate Judge Barbara McAuliffe, who also serves in the U.S. District Court, Eastern District of California.

In many cases, multiple judges are involved in cases. Ishii is the lead judge in this case, and in his recent ruling, he referred the case back to McAuliffe “for further proceedings” in the matter. In many cases, that means the magistrate judge’s office is handling some of the case, but the meat of the matter rests with Ishii, a senior federal judge who was appointed to the bench in 1997 by President Bill Clinton.

Complicated matters

The Cox case has been front and center in Mariposa County for years and involves more than one matter. Besides the receivership component of the case, there was the other matter in which Cox was charged, falsely, with 17 sex-related crimes and could have spent the rest of his life in prison.

That case involved Harris, who accused Cox of rape but it was later dismissed by former Mariposa County District Attorney Thomas Cooke. Judge Ishii also referenced that dismissal in the latest order, including the fact former Mariposa County Superior Court Judge Dana Walton not only dismissed the case the very day the request was made, but also was presiding over the receivership case.

Cox and his attorneys have claimed from the beginning the cases are related while the county has said that isn’t the case. It appears Ishii isn’t buying what the county is saying and he referenced the links between the cases in the most recent order.

The ruling by the judge included references to 2015, when Harris met Cox via the dating website farmersonly.com. Harris stayed briefly on the property and, according to the court documents, she was asked by Cox to vacate a cabin because he was going to have paying guests.

“Harris became upset and falsely reported to the Mariposa County Sheriff that Cox had raped and otherwise sexually abused her,” the judge wrote in the decision.

The judge also pointed out that her claims were contradicted by cell phone records, eyewitness testimony and other evidence.

However, he then said the sheriff’s office “deliberately failed to collect obvious exculpatory evidence and numerous meritless charges were brought against Cox on Nov. 13, 2015. Wrongdoing with respect to the collection, preservation and presentation of evidence continued as the criminal case against Cox was being prosecuted,” the judge wrote.

Ishii then noted in October 2016, the sheriff’s office executed a civil search warrant against Cox, alleging various code violations at his property.

“The warrant was based on an affidavit containing false allegations about Cox in connection with the criminal case,” the judge wrote in his ruling, seemingly connecting the rape case and the receivership case, something the county has denied from the beginning.

It was in March 2017 when the county filed a “verified complaint for nuisance and abatement or receivership” complaint against Cox and JDC Land Co., which he owns. By June of that same year, the county had requested from Walton the case be placed in receivership.

In July 2017, Walton issued an order appointing a receiver over the property. In California, receiverships are ordered by judges against property owners, many times those who have apartment buildings or other revenue generating properties. Judges routinely allow receivers to borrow money and then the property owners are ordered to pay it back once the violations are fixed.

“Further,” wrote Ishii, “the superior court gave the receiver ‘full and complete possession and control’ of the property and to seek permission from the court to sell the property to recover such funds.”

The judge said the “superior court did not conduct an evidentiary hearing or allow JDC to cross-examine witnesses in opposition to the motion … and the order appointing the receiver was issued as drafted by the county, with no facts as to any specific code violations.”

Less than a month later, the judge pointed out the district attorney filed a request to dismiss all criminal charges against Cox in the false rape case.

“The superior court granted the request the same day,” wrote Ishii.

Just under a year later, Walton issued an order confirming the sale of the receivership property and authorized its sale for $700,000, the proceeds of which were to be used to collect payment for various costs in the case.

Cox did appeal that ruling, however, the judge wrote he “could not afford a bond or undertaking, as necessary to halt the sale pending appeal.”

The case did make its way to the California Court of Appeal, which issued a split decision that upheld Walton’s order. The dissenting judge in the case, Charles Poochigian, said he felt Cox was in the right because he had requested a trial in the matter and it was denied by the superior court.

In April 2020, the court of appeal did rule, saying the appeal was moot because the property had already been sold. In its ruling, that court did acknowledge “the costs of a bond or an undertaking necessary for a stay may be beyond the reach of many parties,” wrote Ishii.

Receiver discharged

In January 2021, Walton retired from the bench in Mariposa County. At some point thereafter, Ishii pointed out that a retired superior court judge from Monterey County was appointed. Judge Robert Moody was assigned to take over what remained of the receivership case.

In February 2022, Moody did dismiss the receivership case. But as Ishii pointed out in the recent order, Moody set forth “some casual and some specific observations” about the receivership. That included the fact Moody characterized the case as a “13-year odyssey/fiasco.”

Although lengthy, here is the passage written by Moody:

• the asset forfeiture laws promulgated by the State of California over the years … have turned out to often incentive misuse by police and governmental agencies, whose power and leverage over citizens to seize their property strongly outweigh the powers of property owners to defend against seizures;

• asset forfeitures constitute increasingly significant proportions of the budgets of law enforcement agencies.;

• the placement of property worth $700,000 into receivership and sold, without a trial, to effect nuisance abatements seems on its face draconian;

• he was “haunted … by Justice Poochigan’t dissenting contention that … federal constitutional due process principles should have required an evidentiary hearing” before appointing a receiver over the property;

• “the appointment of a receiver … created a second lopsided power situation which raises due process issues,” in that the receiver “operate(d) as a quasi-law enforcement entity and a quasi-public service attorney” that was “arguably incentivized by the very statuatory scheme that creates asset forfeitures … (to) sell the property with little actual court oversight.”;

• “due process” in cases such as the receivership action “means determining the actual facts on the ground by the presentation of witnesses who get cross-examined by interested opponents.”;

• the court oversight in the receivership action was insufficient to ensure due process because “the reality is that the court had no way to effectively evaluate whether, for instance, it was going to take $475,000 or $26,000 to abate nuisance based upon statements or declaration without the presentation of evidence challenged by cross-examination.”

In addressing the county’s arguments for dismissal, Ishii made various points in his opinion.

One, he noted, was that the “records subject to judicial notice show that the property was put into receivership based solely on declarations proffered by the county, without trial or even an evidentiary hearing in which JDC could offer testimony or cross-examine declarants.”

Ishii also wrote his court “agreed” with Judge Poochigian assessment “as to the constitutionality of the receivership action (which was echoed by Judge Moody) and declines, for lack of due process, to give the receivership action preclusive effect here.”

He also wrote Mariposa County has “not met their burden to show which relevant issues were supposedly decided in the receivership action.” The judge added: “And second, the fact that JDC was not afforded a ‘full and fair opportunity’ to litigate alleged code violations in the receivership action precludes collateral estoppel, regardless of the constitutional due process considerations addressed above.”

The bottom line, wrote Ishii, is “the court finds that the receivership action does not bar litigation of any claims or issues in this case.”

Later in the ruling, the judge said the court found “that JDC has stated a substantive due process claim based on abuse of due process.”

Due process

Portions of the case brought by Cox include due process issues and those were further addressed by Ishii in the ruling.

That part revolves around Cox’s claim the county abused its power in both the criminal and civil matters in an effort to “hobble Cox,” according to filings from Cox’s legal team.

Cox’s team also argued the county secured the warrant for the “overbroad” inspection of the property “through affidavits they knew to contain false information; grossly exaggerated the number and magnitude of code violations on the property; and selected an unscrupulous receiver practiced in the art of expropriation that would go along with their scheme.”

The judge seemed to agree with this sentiment.

“The court therefore finds that JDC has stated a substantive due process claim based on abuse of process.”

The judge also addressed, head on, the issue of whether the criminal case against Cox, which was eventually dismissed, was tied directly to the code violations case.

“The court has already found that Cox’s claim against the county defendants in connection with the management of the criminal case is in the vein of malicious prosecution and that Cox has adequately alleged improprieties on the part of state actors in the perpetuation of the criminal case, including allegations that the county defendants continued to engage in evidentiary improprieties after the case commenced and continued to prosecute Cox even though they knew he was innocent.”

The judge then refused to dismiss Cox’s due process claim against the county for failure to state a claim.

The county did get a couple of favorable rulings from Ishii in the case.

One involved Cox claiming “civil conspiracy.” The judge agreed, saying the court “sees no reason to believe either the plaintiff can cure the pleading defects identified here” and he dismissed that claim with prejudice.

Another involved Cox’s claim of illegal search and seizure. The county argued the statutes of limitations prevented this from going forward. The judge agreed, saying that portion of the claim will be dismissed on the grounds it is time-barred.

Toward the end of his ruling, the judge pointed out the federal court “has already adjudicated at least seven pre-answer motions in the case. The defendants — including the county defendants and Harris — will therefore be ordered to answer the Second Amended Complaint unless there is a good faith basis, consistent with Rule 11 of the Federal Rules of Civil Procedure and prior orders in this case, for responding in some other fashion.”

In the end, the judge ordered the county, the two deputies and Harris to respond to the order within 14 days and also referred it to the magistrate judge “for further proceedings,” including his previous order denying Harris’s motion to dismiss.

A hearing on the matter was originally scheduled for Oct. 25, however, the judge in the case recently continued that hearing until Nov. 30 at the federal court in Fresno before the magistrate judge.

NCFM Jerry Cox case update, “Judge orders county officials to submit answers about case”

Tags: Anthony Ishii, jerry cox, Judge Ishii, mariposa county, Mariposa Gazett