Douglas v. Kalanta

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7

8 RICHARD WILLIAM DOUGLAS, JR., et al., Case No. 1:21-cv-01535-JLT-EPG (PC) 9 Plaintiffs, FINDINGS AND RECOMMENDATIONS 10 TO: v. 11 (1) GRANT THE MOTION TO DISMISS WILLIAM JOSEPH KALANTA, et al., OF DEFENDANTS WILLIAM JOSEPH 12 KALANTA, MICHAEL JAMES Defendants. KALANTA, AND KIMBERLY JO 13 HURTT;

14 (ECF No. 18)

15 (2) SUA SPONTE DISMISS THE CASE AGAINST DEFENDANT MODESTO 16 POLICE DEPARTMENT;

17 (3) DISMISS THIS ACTION WITH PREJUDICE; 18 (4) DENY PLAINTIFFS’ MOTION FOR 19 DEFAULT JUDGMENT; AND

20 (5) DENY DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AS 21 UNNECESSARY

22 (ECF Nos. 18-2, 34)

23 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 24 25 Plaintiffs Richard William Douglas, Jr., and Christine Anne Hurtt1 filed a complaint on 26 October 18, 2021, accusing the Defendants of conspiring to murder Ms. Angela Dawn 27 28 1 David Henderson, a former Plaintiff in this case, was dismissed as a plaintiff on March 24, 2022, after failing to prosecute this case and failing to comply with a court order. (ECF No. 35). 1 Kalanta,2 who was Richard’s ex-wife and was Christine’s sister. (ECF No. 1). 2 Defendants William Joseph Kalanta (Angela’s husband), Michael James Kalanta (the 3 son of Plaintiff Douglas and Angela), and Kimberly Jo Hurtt (Angela’s sister) have moved to 4 dismiss the case, arguing that Plaintiffs lack standing and this Court lacks jurisdiction over the 5 case, that the complaint fails to state any claim upon which relief can be granted, that the 6 statute of limitations bars Plaintiffs’ claims, and that the doctrines of claim and issue preclusion 7 bar this action. (ECF No. 18). Plaintiffs move for a default judgment against the only other 8 remaining Defendant in the case, the Modesto Police Department, who has not appeared in this 9 action. (ECF No. 34). On October 6, 2022, the assigned District Judge referred the motion to 10 dismiss for the preparation of findings and recommendations. (ECF No. 40). 11 As explained below, the Court will recommend that: (1) the Defendants’ motion to 12 dismiss (ECF No. 18) be granted; (2) the case against Defendant Modesto Police Department 13 be sua sponte dismissed; (3) this action be dismissed with prejudice; (4) the Plaintiffs’ motion 14 for default judgment (ECF No. 34) be denied; and (5) Defendants’ request for judicial notice 15 (ECF No. 18-2) be denied as unnecessary. 16 I. SUMMARY OF THE ALLEGATIONS 17 Plaintiffs’ complaint alleges as follows: “Defendants are involved in organized crime, 18 human trafficking and racketeering influenced corrupt organizations.”3 (ECF No. 1, p. 1). In 19 December 2008, Angela called Plaintiff Douglas, expressing a fear of dying in Modesto, 20 California, and asking him to come see her. Plaintiff Douglas arrived in January 2009 and 21 stayed with Angela and their son, Defendant Michael Kalanta, for the next five and a half 22 months at Michael’s home in Waterford, California, which is near Modesto. During this stay, 23 Plaintiff Douglas “witnessed constant mental and emotional abuse towards Angela from 24 25

26 2 The Court will refer to Ms. Angela Dawn Kalanta as “Angela” in this order to distinguish her from the 27 Defendants with whom she shares a last name. The Court intends no disrespect by using her first name in this order. 28 3 Minor alterations, such as altering capitalization and correcting misspellings, have been made to some quotations from Plaintiffs’ filings without indicating each change. 1 Defendants Michael and William Kalanta” and “also witnessed mental and emotional abuse 2 from Defendant Kimberly Hurtt.” (Id. at 2). 3 In March 2009, Angela filed for divorce from Defendant William Kalanta “because he 4 had been abusive physically, emotionally and mentally to Angela throughout their sixteen years 5 of marriage.” (Id.). 6 In July 2005, Defendant William Kalanta was arrested and convicted for injuring 7 Angela, resulting in her hospitalization “in [an] intensive care unit on life support.” (Id.). Right 8 after this incident, Defendant Michael Kalanta applied to have his named changed from 9 Michael James Douglas to Michael James Kalanta, with the application citing the reason for 10 this change as “respect for William and at his request.” (Id.). Defendant William Kalanta has an 11 extensive domestic violence record. Defendant Michael Kalanta is an attorney in Modesto, 12 California. 13 Angela told Plaintiff Douglas that Defendant William Kalanta pushed her down the 14 stairway in her home in December 2009 during an argument and while there was still a 15 restraining order against Defendant William Kalanta. There was an ongoing argument between 16 Angela and Defendant William Kalanta regarding $75,000 that Angela said that Defendant 17 William Kalanta had stolen. Angela was in constant fear of Defendant William Kalanta the 18 entire time that Plaintiff Douglas was living with Defendants, with Angela telling Plaintiff 19 Douglas that Defendant William Kalanta “told her he would smash her head on their cement 20 floor like he did his last wife if she tried to divorce him.” (Id. at 3). Angela also told Plaintiff 21 Douglas that “she found a huge cash hoard in the ceiling” of Defendant William Kalanta’s 22 office; that Defendant William Kalanta owns several properties in California and Arizona, 23 including “a mini storage near Modesto”; and that she believed that Defendant William Kalanta 24 had hidden the huge cash hoard in the mini storage. (Id.). 25 In May 2009, Colleen Douglas, Angela’s friend, heard Defendant Michael Kalanta tell 26 Angela, “I will get your house after you are dead.” (Id.). Angela told Plaintiff Douglas that 27 Defendant William Kalanta has “a secret insurance agent.” (Id.). Defendant William Kalanta 28 1 “constantly threatened Angela if she divorced him that she ‘will see what happens to her if she 2 pulls the plug on this family.’” (Id.). 3 Angela died the same day that she had an appointment with her attorney to finalize her 4 divorce. Her three primary care doctors said that they believed that Defendant William Kalanta 5 had something to do with her death. Angela’s divorce attorney told Plaintiff Hurtt that 6 Defendant Michael Kalanta and his Uncle Tyler Hurtt tried to get Angela’s retainer refunded to 7 them but the attorney refused. The attorney’s car was broken into soon thereafter and Angela’s 8 file was stolen. 9 Plaintiffs are especially harmed by Angela’s murder because they “have not been able 10 to work in any employment of [their] professions.” (Id. at 3-4). And both have lost the love and 11 affection of Angela. 12 Angela reported the abuse from Defendants William Kalanta, Michael Kalanta, and 13 Hurtt “for years to local authorities, women’s shelters, doctors, friends and family to no avail.” 14 (Id. at 4). One of Angela’s doctors told her not to go to Defendant William Kalanta’s “home 15 because bipolar people are too dangerous to live with.” (Id.). On the day that Defendant 16 Michael Kalanta graduated from law school, Defendant William Kalanta called Angela ‘“a 17 stupid (expletive)4 whore’ because she accidentally lost the keys to their home.” (Id.). This 18 “verbal assault on her in front of many people” caused Angela to cry uncontrollably. (Id.). 19 Plaintiffs possess “third-party stalking of Plaintiffs, including witness statements of 20 [Defendant Michael Kalanta] requesting from witnesses the location and photos of Plaintiffs’ 21 vehicles on or about March 1, 2016.” (Id.). A few days after location information was given to 22 Defendant Michael Kalanta, “a car attempted to run over [Plaintiff Douglas].” (Id.). In October 23 2009, Defendant Michael Kalanta was riding in a car with his niece that tried to run over 24 Plaintiff Douglas. Defendant Michael Kalanta’s stepdaughter was ran over and killed in 25 February 2010, with the responsible truck being “linked to this family through Angela’s niece 26 Cassandra Blair.” (Id.). Prior to these incidents, Plaintiff Hurtt “was almost ran over at her 27

28 4 The use of the word “expletive” in this quote is contained in the complaint itself. 1 place of employment” by associates of Defendants Michael Kalanta and Kimberly Hurtt. (Id. at 2 4-5). 3 Plaintiffs possess a phone recording of the Defendants discussing Angela’s murder, but 4 Defendant Modesto Police Department has refused to accept it or get the message from the 5 phone company and has refused to cooperate with Angela’s family since the beginning of this 6 case. Defendant Modesto Police Department continues to ignore Plaintiffs’ request to examine 7 the recording. 8 In October 2011, Defendants sued Plaintiffs in California state court for defamation, 9 slander, and libel and “won by default.” (Id. at 5). Plaintiff Douglas was never legally served 10 until months later. Plaintiffs requested a phone hearing because they lived in other states, were 11 unable to travel, and feared Defendants, but were denied a phone hearing by Defendants’ 12 attorney, who is now permanently disbarred. 13 Defendant Hurtt, Angela’s older sister, is a real estate agent in Colorado and has 14 extensive organized crime contacts. She was staying with Angela and was evicted from 15 Angela’s home just before she died. Defendant Hurtt was involved in murders committed by 16 her ex-husband, but has avoided prison. 17 Ashley Henderson, the daughter of former Plaintiff David Henderson, and Defendant 18 Michael Kalanta’s stepdaughter, was killed after being run over in 2010. Ashley said that 19 Defendant Michael Kalanta records everything in his house. Plaintiff Douglas located, at 20 Ashley’s direction, a recording device in the attic of Defendant Michael Kalanta’s home while 21 living there in 2009 just before Angela died. “Defendants had Ashley murdered because she 22 knew too much and was telling her father what was going on at [Defendant Michael Kalanta’s] 23 home.” (Id. at 6). Plaintiff Douglas, Angela, and Ashley were constantly monitored by 24 Defendant Michael Kalanta by telephone and vehicle tracking. 25 Defendants are involved in human tracking and have extensive contacts with a gangster 26 from Dayton, Ohio. 27 Defendants testified in state court that Angela died of an accidental overdose of her 28 prescription medication, which was prescribed in the same office that Defendant William 1 Kalanta worked. The coroner’s office produced an autopsy report concluding that Angela died 2 from “undetermined circumstances.” (Id. at 7). Defendant William Kalanta tried to stop the 3 autopsy, and after it was completed, had Angela cremated the same day. While at the coroner’s 4 office, Defendant Hurtt “demanded to see the body and cut off hair.” (Id.). 5 A Stanislaus County district attorney has never answered Plaintiff’s questions and is 6 withholding evidence regarding the investigation into Angela’s murder. Stanislaus County and 7 Defendant Modesto Police Department committed malfeasance regarding the investigation. The 8 California Department of Justice has generally ignored formal requests to investigate the 9 district attorney’s handling of the investigation and has committed malfeasance in the case. 10 All the Defendants “conspired to murder Angela to prevent alimony, child support, 11 divorce, eviction of [Defendant William Kalanta], to collect life insurance, mortgage insurance 12 and to shut Angela’s mouth forever because she knew too much” and “Kimberly aided and 13 abetted this operation with her extensive background in organized crime procedures.” (Id. at 8). 14 A police detective has blocked Plaintiff Douglas’s emails and phone calls, the 15 California Medical Board took no action against Defendant William Kalanta after being 16 informed of his record of domestic abuse, Defendant Modesto Police Department did not 17 investigate Angela’s home or vehicle despite her suspicious death, and numerous agencies all 18 over the United States have been of no help. The coroner and others, including Angela’s 19 primary care physician, believe Angela was murdered and her body should have not been 20 released to Defendant William Kalanta for cremation. 21 In March 2014, a deputy district attorney agreed to accept a phone recording from 22 Plaintiff Douglas, with the recording being mailed to him the next day. However, the deputy 23 district attorney was never heard from again. The Stanislaus County District Attorney’s Office 24 told Plaintiff Douglas that the attorney did not work there any longer and the Office had no 25 information about the recording being sent. 26 Plaintiffs have no answers about what happened to Angela between May 31, 2009, and 27 June 2, 2009, and have lost all faith in these agencies to provide help and answers to their 28 questions about Angela’s death and are thus forced to seek help from this Court. Plaintiff 1 Douglas called the coroner on June 2, 2009, “and told them that he believed Angela was 2 murdered by her husband.” (Id. at 11). 3 Angela told Plaintiff Douglas that Defendant William Kalanta was sneaking into her 4 room while she was sleeping and injecting her in her thigh with an unknown substance. 5 Plaintiff Douglas saw that Tramadol was prescribed to Angela and the bottle was supposed to 6 contain 200 tablets. However, the bottle had only two tablets left. In April 2009, Angela was 7 instructed by Defendant Hurtt to travel to Hurtt’s home in Colorado because their grandfather 8 wanted to see her before she died. Angela left for Colorado with approximately 200 tablets of 9 Tramadol in a baggy. A few days after Angela arrived in Colorado, her grandfather died and 10 was cremated without an autopsy. Defendant Hurtt collected $75,000 from their grandfather’s 11 reverse mortgage. 12 Angela told Plaintiff Douglas that Defendants William Kalanta and Kimberly Hurtt 13 have “a secret insurance agent” that secures life insurance payments to them for the people that 14 they murder. (Id. at 13). 15 Plaintiffs state that, as a result of the above allegations, they have suffered “loss of 16 income and severe depression and disability.” (Id.). They seek monetary damages and for this 17 Court to order Defendants to answer their questions. 18 The civil sheet attached to the complaint indicates that the basis of the Court’s 19 jurisdiction is diversity jurisdiction and lists “murder” as the cause of action. 20 II. MOTION TO DISMISS 21 A. Summary of the Parties’ Arguments 22 Defendants’ motion to dismiss, filed on January 24, 2022, pursuant to Federal Rules of 23 Civil Procedure 12(b)(1) and 12(b)(6), seeks to dismiss this case on multiple grounds. (ECF 24 No. 18). Defendants argue that Plaintiffs’ allegations do not demonstrate that Plaintiffs have 25 standing, or that the Court has subject jurisdiction over this matter, because civil RICO claims 26 must be premised on injuries to business or property, which Plaintiffs fail to allege. Similarly, 27 Plaintiffs have failed to sufficiently allege the necessary elements of a civil RICO claim so as to 28 state a claim upon which relief may be granted. Additionally, Defendants argue that civil RICO 1 claims have a four-year statute of limitations, and Plaintiffs were required to assert their 2 allegations in this case by no later than 2013. Lastly, Defendants argue that the state court 3 defamation suit mentioned in the complaint bars Plaintiffs from proceeding with their civil 4 RICO claim under the doctrines of claim and issue preclusion. 5 As part of their motion to dismiss, Defendants have filed a request for judicial notice, 6 asking the Court to take judicial notice of the first amended complaint and judgment in the state 7 court defamation proceeding, which documents they have attached as exhibits. (ECF No. 18-2) 8 Plaintiff’s response, filed on February 16, 2022, includes a host of factual allegations 9 not included in the complaint, along with approximately 300 pages of attachments that appear 10 intended to be offered as factual support for their allegations. (ECF No. 24). Plaintiffs offer no 11 meaningful opposition to Defendants’ standing, subject-matter jurisdiction, or failure-to-state- 12 a-claim arguments; however, they assert that this is “a RICO and violation of civil rights” case 13 (id. at 3) that “should not be dismissed with prejudice on grounds of procedural law because it 14 is far more important for justice to be served in a murder than damage to property and or a 15 business” (id. at 27). Plaintiffs argue that the “four-year statute of limitations is not up because 16 in 2015 Plaintiff Christin [Hurtt] was assaulted with a firearm in her own home by Thomas 17 Banfield,” who was sent at the behest of Defendant Kimberly Hurtt. (Id. at 3). Plaintiffs also 18 assert that “capital crimes such as the alleged capital crime in Plaintiffs’ complaint have no 19 statute of limitation under RICO.” (Id. at 20). Lastly, they argue that the state court defamation 20 case was never adjudicated on the merits and is not the same as this action. (Id. at 2-3). 21 Defendants’ reply, filed on February 22, 2022, argues that Plaintiffs have improperly 22 alleged new facts and submitted new documents with their opposition. (ECF No. 26). 23 Additionally, Plaintiffs have failed to offer any substantive response to their arguments in favor 24 of dismissal. Lastly, Defendants assert that the state court defamation case was decided after a 25 trial where evidence was heard and argue that Plaintiff Hurtt’s allegation about being assaulted 26 with a firearm in 2015, even if accepted as true, would not render the RICO claim timely. 27 B. Standards 28 In considering a motion to dismiss, the Court must accept all allegations of material fact 1 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). “[T]he court must 2 construe the complaint in the light most favorable to the plaintiff, taking all [of the plaintiff’s] 3 allegations as true and drawing all reasonable inferences from the complaint in [the plaintiff’s] 4 favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). In addition, pro se pleadings 5 “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. 6 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 7 A motion to dismiss pursuant to Rule 12(b)(1) is a challenge to the court’s subject 8 matter jurisdiction. See Fed. R. Civ. P. 12 (b)(1). “A Rule 12(b)(1) jurisdictional attack may be 9 facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a 10 facial attack, the challenger asserts that the allegations contained in a complaint are insufficient 11 on their face to invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. “By contrast, in a 12 factual attack, the challenger disputes the truth of the allegations that, by themselves, would 13 otherwise invoke federal jurisdiction.” Id. 14 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 15 complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Rule 8(a)(2) requires only “a short 16 and plain statement of the claim showing that the pleader is entitled to relief” in order to “give 17 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 19 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant 20 is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236. 21 The first step in testing the sufficiency of the complaint is to identify any conclusory 22 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 23 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. 24 at 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires 25 more than labels and conclusions, and a formulaic recitation of the elements of a cause of 26 action will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 27 After assuming the veracity of all well-pleaded factual allegations, the second step is for the 28 court to determine whether the complaint pleads “a claim to relief that is plausible on its face.” 1 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6) 2 standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when the plaintiff 3 “pleads factual content that allows the court to draw the reasonable inference that the defendant 4 is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 5 The standard for plausibility is not akin to a “probability requirement,” but it requires “more 6 than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. 7 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the 8 complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Gumataotao v. 9 Dir. of Dep’t of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001). 10 C. Analysis 11 1. Civil RICO claim 12 a. Standing Defendants argue that Plaintiffs lack standing to bring a civil RICO claim because they 13 have not sustained the type of injuries—to business or property—that the civil RICO statute 14 provides for. (ECF No. 18-1, p. 24). And they argue that, without standing, this Court lacks 15 subject-matter jurisdiction over this case. 16 As an initial matter, although Defendants argue that this Court lacks jurisdiction 17 because Plaintiff’s do not have statutory standing under RICO, Defendants’ argument 18 implicates Plaintiffs’ ability to state a claim under Rule 12(b)(6), not the Court’s jurisdiction 19 under Rule 12(b)(1). See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (“It is 20 firmly established in our cases that the absence of a valid (as opposed to arguable) cause of 21 action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional 22 power to adjudicate the case.”); Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174-75 (9th Cir. 23 2004) (discussing difference between Article III standing, which implicates a court’s subject- 24 matter jurisdiction, and statutory standing, which implicates a plaintiff’s ability to state a 25 claim). 26 Turning to the statute, “[t]he Racketeer Influenced and Corrupt Organizations Act 27 (RICO or Act), 18 U.S.C. §§ 1961–1968, provides a private right of action for treble damages 28 1 to “[a]ny person injured in his business or property by reason of a violation” of the Act’s 2 criminal prohibitions. § 1964(c).” Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 641 3 (2008); § 1964(c) (“Any person injured in his business or property by reason of a violation of 4 section 1962 of this chapter may sue therefor in any appropriate United States district court and 5 shall recover threefold the damages he sustains and the cost of the suit, including a reasonable 6 attorney’s fee . . . .”).5 7 “To have standing under § 1964(c), a civil RICO plaintiff must show: (1) that his 8 alleged harm qualifies as injury to his business or property; and (2) that his harm was ‘by 9 reason of’ the RICO violation, which requires the plaintiff to establish proximate causation.” 10 Canyon Cnty. v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008) (quoting § 1964(c)). 11 As an initial matter, the Court must determine what allegations are properly before it. 12 As noted above, Plaintiffs’ opposition contains a host of allegations not contained in the 13 complaint and attaches approximately 300 pages of new documents. The Court agrees with 14 Defendants that new allegations in an opposition to a motion cannot be used to defeat dismissal 15 and the only proper allegations for the Court to consider are those contained in the complaint 16 itself. See Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) 17 (concluding that new allegations in opposition were irrelevant for Rule 12(b)(6) purposes and 18 that “court may not look beyond the complaint to a plaintiff’s moving papers, such as a 19 memorandum in opposition to a defendant’s motion to dismiss”). However, even if the new 20 allegations in the opposition could be considered to defeat dismissal, none of the new 21 allegations suffice to establish standing. 22 Parts of Plaintiffs’ opposition brief appears to argue that their complaint need not allege 23 any injury to achieve standing under RICO. (See ECF No. 24, p. 19 – “This compliant should 24 not be dismissed because this case involves the taking of a Human Life, not just the taking of 25 money or damages to property.”; p. 27 – “The murder of a battered wife . . . should not be 26 dismissed with prejudice on the grounds of procedural law because it is far more important for 27

28 5 Section 1962, referenced in § 1964(c), generally prohibits activities involving racketeering. 1 justice to be served in a murder than damage to property and or a business again . . . .”). 2 However, any such argument fails in light of the authority noted above. See Canyon Cnty., 519 3 F.3d at 972 (noting that a plaintiff “must show” such injury to have standing). 4 Turning to the injuries that Plaintiffs allege, the complaint states: “As a proximate result 5 of the above-described allegations, Plaintiffs have suffered substantial loss of income and 6 severe depression and disability from the death of [our] loved one, Angela. Plaintiffs have lost 7 their loved one and have no answers from Modesto police.” (ECF No. 1, p. 13). Elsewhere, 8 Plaintiffs state that they “have not been able to work” since Angela’s murder and that Plaintiff 9 Hurtt “lost her career as a direct result.” (Id. at 3-4). 10 Plaintiffs’ allegations that Angela’s death has caused them personal suffering, such as 11 depression, do not constitute losses to business or property under the civil RICO statute. Lauter 12 v. Anoufrieva, 642 F. Supp. 2d 1060, 1085 (C.D. Cal. 2009) (“[P]laintiff’s alleged emotional 13 distress and humiliation are personal injuries not compensable under RICO.”). As for Plaintiffs’ 14 alleged loss of income and employment, “[a]n injury is compensable under RICO if it 15 constitutes ‘harm to a specific business or property interest’ and if the alleged business or 16 property interest is cognizable under state law.” Id. at 1084. The Ninth Circuit, observing that 17 California recognizes as torts both intentional interference with contract and interference with 18 prospective business relations, has recognized a qualifying injury where a plaintiff was unable 19 to “fulfill his employment contract or pursue valuable employment opportunities because he 20 was in jail.” Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005). However, the Court also 21 concluded that its approach should not be taken as conferring standing simply because a 22 plaintiff was “suave enough to allege lost employment.” Id. at 901. That is what Plaintiffs have 23 done here by alleging “loss of income” and employment without any supporting facts. Such 24 conclusory allegations are insufficient to identify a harm to “a specific business or property 25 interest.” Accordingly, Plaintiffs have failed to sufficiently allege standing under the civil 26 RICO statute and thus fail to state a claim upon which relief may be granted.6 27 28 6 Defendants offer additional reasons for why Plaintiffs have failed to state a claim. However, the Court need not reach these arguments given the other bases to dismiss this case. (See ECF No. 18-1, p. 21-24). 1 b. Statute of limitations 2 Additionally, Defendants argue that Plaintiffs’ civil RICO claim is barred by the statute 3 of limitations. (ECF No. 18-1, p. 20). One court within this District has explained the governing 4 law as follows: 5 The statute of limitations for civil RICO actions, imported from the Clayton Act, is four years. Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 6 143, 156 (1987); Pincay v. Andrews, 238 F.3d 1106, 1108 (9th Cir. 2001). When applying this statute of limitations, courts in the Ninth Circuit follow the “injury 7 discovery” rule, which has two components. Grimmett v. Brown, 75 F.3d 506, 8 510 (9th Cir. 1996). “First, the civil RICO limitations period begins to run when a plaintiff knows or should know of the injury that underlies [the] cause of 9 action.” Id. (internal quotation omitted); Pincay, 238 F.3d at 1109 (noting that 10 either “actual or constructive notice” begins statute of limitations). The second component is the “separate accrual rule,” “which provides that a new cause of 11 action accrues for each new and independent injury, even if the RICO violation causing the injury happened more than four years before.” Grimmett, 75 F.3d at 12 510. 13 Gianelli v. Schoenfeld, No. 2:21-cv-00477J-AM-KJN (PS), 2021 WL 4690724, at *6 (E.D. Cal. 14 Oct. 7, 2021), report and recommendation adopted, 2021 WL 5154163 (E.D. Cal. Nov. 5, 15 2021). 16 The complaint demonstrates that Plaintiffs knew the facts underlying their civil RICO 17 claim in 2009 when Angela was murdered. For example, Plaintiff Douglas told the coroner in 18 June 2009 that he believed that Angela had been murdered by Defendant William Kalanta. 19 (ECF No. 1, p. 11). Moreover, as to both Plaintiffs, the complaint recites facts relating to events 20 preceding Angela’s death that led them to later believe that she had been murdered—such as 21 Plaintiff William Kalanta’s alleged 2005 assault on Angela and the allegedly unusual 22 circumstances surrounding the death of Angela’s grandfather. (Id. at 2, 12-13). Perhaps most 23 notably, Plaintiffs’ complaint acknowledges that, in 2011, they were sued based on their 24 allegations that some of the Defendants had murdered Angela. (Id. at 5). Regardless of whether 25 Angela’s 2009 death or the 2011 defamation suit is used as the date for when Plaintiffs knew 26 the injury underlying their civil RICO claim, the four-year statute of limitations would have 27 expired well before this case was filed in October 2021. 28 1 Plaintiffs present no challenge to Defendants’ argument about when they knew the basis 2 for their civil RICO claim; however, Plaintiffs argue that the “four-year statute of limitations is 3 not up because in 2015 Plaintiff Christin [Hurtt] was assaulted with a firearm in her own home 4 by Thomas Banfield,” who was sent at the behest of Defendant Kimberly Hurtt. (Id. at 3). 5 However, setting aside the fact that this allegation is not contained in the complaint, the four- 6 year limitations period would have expired in 2019, again before the complaint was filed in 7 October 2021.7 8 Elsewhere, Plaintiffs assert that “capital crimes such as the alleged capitol crime in 9 Plaintiffs’ complaint have no statute of limitation under RICO.” (Id. at 20). This argument 10 relies on 18 U.S.C. § 3282, which states that criminal prosecutions for non-capital crimes must 11 be instituted within five years after the commission of the offense. Relatedly, § 3281 provides 12 that “[a]n indictment for any offense punishable by death may be found at any time without 13 limitation.” However, these statutes concern the limitations period for prosecuting criminal 14 cases—they do not concern civil RICO claims that concern murder. As discussed later, to the 15 extent that Plaintiffs seek to do so, they cannot compel the criminal prosecution of Defendants. 16 See Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987) (declining 17 to apply “the 5-year statute of limitations for criminal RICO actions [to civil RICO actions 18 because it] does not reflect any congressional balancing of the competing equities unique to 19 civil RICO actions or, indeed, any other federal civil remedy” and instead concluding that “the 20 Clayton Act offers the better federal law analogy”). 21 Based on the forgoing, the four-year limitations period for civil RICO claims bars 22 Plaintiffs from proceeding on the allegations in their complaint. Moreover, because Plaintiffs’ 23 civil RICO claim is “barred by the statute of limitations, any amendments would [be] futile” 24 25 26 27 7 The Court notes that the complaint alleges that Plaintiff Douglas was almost run over by a vehicle in 2016. Assuming that Plaintiffs would wish to argue that a claim based on this allegation were timely, 28 the statute of limitations would have expired in 2020, which is still before Plaintiffs filed their complaint. (ECF No. 1, p. 4). 1 and thus the Court will recommend that this action be dismissed with prejudice. Platt Elec. 2 Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008).8 3 2. RICO and civil rights claims against Defendant Modesto Police Department 4 As to the civil RICO claim against Defendant Modesto Police Department, the Court 5 will sua sponte recommend that this claim be dismissed as time-barred under the four-year 6 limitations period for the same reasons discussed above in conjunction with the Defendants’ 7 motion to dismiss. See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993) 8 (concluding that a court may sua sponte dismiss a complaint as untimely); Benjamin-Sohal v. 9 City of Berkeley Police Dep’t, No. C98-3364 FMS, 1998 WL 908944, at *1 (N.D. Cal. Dec. 18, 10 1998), aff’d in part, vacated in part on other grounds, 229 F.3d 1156 (9th Cir. 2000) (sua 11 sponte raising statute-of-limitations issue even though a defendant police department did not 12 file a motion to dismiss where the plaintiff was on notice that plaintiff’s claims were subject to 13 a statute-of-limitations defense as a result of the motion to dismiss of another defendant). 14 Additionally, the Court notes that Plaintiffs appear to also bring a civil rights claim as to 15 Defendant Modesto Police Department, with their opposition stating, “This is a RICO and 16 violation of civil rights claim.” (ECF No. 24, p. 3) (emphasis added). Elsewhere in the 17 opposition, Plaintiffs state that “[t]he precise nature of Plaintiffs’ claims are [the] Stanislaus 18 Court and Modesto Police have and are still violating our Civil rights to due process and 19 plaintiffs are alleging malfeasance of the police an[d] county in the mishandling of the Capital 20 murder of Angela [] including a botched investigation.” (Id. at 25). While, as noted above, the 21 Court cannot consider new factual allegations in an opposition brief, the Court will consider 22 Plaintiffs’ similar allegations in the complaint—namely that Defendant Modesto Police 23 Department has failed to conduct an adequate criminal investigation into Angela’s alleged 24 25

26 8 Given the multiple bases to dismiss the civil RICO claim, the Court need not address Defendants’ remaining 27 argument—that the doctrines of claim and issue preclusion also bar this lawsuit. Accordingly, the Court will recommend that Defendants’ request for judicial notice of the state court defamation case documents be denied as 28 unnecessary. (ECF No. 18-2). 1 murder and answer Plaintiffs’ questions about her case—to see if it falls within any cognizable 2 civil rights claim.9 3 Evaluating this claim includes an evaluation of the Court’s subject matter jurisdiction 4 and thus may be considered sua sponte even though Defendant Modesto Police Department has 5 not filed a motion to dismiss on this basis. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 6 1194 n. 2 (9th Cir. 1988) (“It is elementary that the subject matter jurisdiction of the district 7 court is not a waivable matter and may be raised at anytime by one of the parties, by motion or 8 in the responsive pleadings, or sua sponte by the trial or reviewing court.”). This is because 9 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 10 511 U.S. 375, 377 (1994). “Article III, § 2, of the Constitution delineates [t]he character of the 11 controversies over which federal judicial authority may extend. And lower federal-court 12 jurisdiction is further limited to those subjects encompassed within a statutory grant of 13 jurisdiction. Accordingly, the district courts may not exercise jurisdiction absent a statutory 14 basis.” Home Depot U. S. A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019) (alteration in 15 original) (citations and internal quotation marks omitted). 16 A potentially applicable civil rights statute is 42 U.S.C. § 1983, which provides as 17 follows: 18 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 19 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 20 secured by the Constitution and laws, shall be liable to the party injured in an 21 action at law, suit in equity, or other proper proceeding for redress . . . . 22 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 23 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 24 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 25 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 26 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 27 28 9 While this allegation also mentions the “Stanislaus Court,” it is not a defendant in this action, and thus the Court will not consider any claim against it. 1 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a claim under 2 section 1983, a plaintiff must allege that (1) the defendant acted under color of state law, and 3 (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. 4 County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. County of San 5 Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). 6 Here, the constitutional provision potentially implicated by Plaintiffs’ allegations is the 7 First Amendment, which provides that Congress shall make no law abridging the right of the 8 people “to petition the Government for a redress of grievances.” U.S. Const. amend. I. The 9 right to petition the government is “cut from the same cloth as the other guarantees” in the First 10 Amendment and is “an assurance of a particular freedom of expression.” McDonald v. Smith, 11 472 U.S. 479, 482 (1985). However, the Petition Clause guarantees only that an individual may 12 “speak freely and petition openly” and that he or she will be free from retaliation by the 13 government for doing so. Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 14 463, 465 (per curiam). The First Amendment does not guarantee that there will be any 15 government response to a petition or that the government will take any action regarding the 16 relief demanded by the petitioner. Harvey v. Jordan, No. C 05-5398 CRB (PR), 2006 WL 17 8435179, at *1 (N.D. Cal. June 5, 2006) (“Although plaintiff has a First Amendment right to 18 petition the government for redress of grievances, he has no right to a response or any 19 particular action.”). 20 Specifically, the First Amendment does not impose an affirmative obligation on the 21 government to consider, respond to, or grant any relief on a citizen’s petition for redress of 22 grievances. Id.; see also Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“A citizen’s right to 23 petition the government does not guarantee a response to the petition or the right to compel 24 government officials to act on or adopt a citizen’s views.”); We the People Foundation, Inc. v. 25 United States, 485 F.3d 140, 141 (D.C. Cir. 2007) (“[T]he Petition Clause does not provide a 26 right to a response or official consideration [of a citizen’s grievance].”); Trentadue v. Integrity 27 Committee, 501 F.3d 1215, 1237 (10th Cir. 2007) (“[T]he right to petition confers no attendant 28 right to a response from the government.”); Hilton v. City of Wheeling, 209 F.3d 1005, 1007 1 (7th Cir. 2000) (“[W]hile the government may not interfere with the right to petition, it need 2 not grant the petition, no matter how meritorious it is.”) (citations omitted). 3 With these standards in mind, the Court concludes that Plaintiffs’ allegations about 4 Defendant Modesto Police Department failing to adequately conduct an investigation, respond 5 to their attempts to facilitate the investigation, and answer their questions about Angela’s death 6 do not state any cognizable First Amendment claim. Simply put, assuming these allegations are 7 true,“[t]he Constitution impose[s] no affirmative obligation on [Defendant Modesto Police 8 Department] to investigate or act on the information [that Plaintiff’s] shared . . . .” Rowe v. Las 9 Vegas Metro. Police Dep’t, No. 2:21-CV-00724-JAD-BNW, 2022 WL 358144, at *3 (D. Nev. 10 Feb. 4, 2022). 11 Further, to the extent that Plaintiffs seek to compel the criminal prosecution of 12 Defendants, “federal law does not allow a private citizen to bring a criminal prosecution against 13 another citizen. Criminal actions are initiated by the state, not by private citizens.” Lipsey v. 14 Reddy, No. 1:17-CV-00569-LJOB-AM (PC), 2017 WL 4811723, at *4 (E.D. Cal. Oct. 24, 15 2017), report and recommendation adopted, 2017 WL 5070338 (E.D. Cal. Nov. 3, 2017). This 16 is because “a private citizen lacks a judicially cognizable interest in the prosecution or 17 nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Thus, 18 “[w]hatever ‘crimes’ the named defendants may have been committing, they do not provide a 19 basis for the court’s jurisdiction over [Plaintiffs’] civil suit.” Selck v. Volunteers of Am., No. 20 2:21-CV-1500-MCE-KJN (PS), 2022 WL 159037, at *2 (E.D. Cal. Jan. 18, 2022), report and 21 recommendation adopted, 2022 WL 396845 (E.D. Cal. Feb. 9, 2022). 22 Given that Plaintiffs have failed to identify any cognizable civil rights action relating to 23 their allegations that Defendant Modesto Police Department has failed to act appropriately 24 regarding Angela’s murder, the Court lacks subject-matter jurisdiction over this claim. See 25 Bator v. Siskiyou Cnty., No. 2:16-CV-2073-GEB-CMK, 2017 WL 698268, at *2 (E.D. Cal. 26 Feb. 21, 2017) (dismissing purported civil rights violations after the plaintiffs failed “to 27 reference to any legal theory of damages cognizable under federal law”). And because 28 Plaintiffs’ allegations relate to no cognizable civil rights claim, the Court further recommends 1 that these allegations be dismissed against Defendant Modesto Police Department with 2 prejudice. See Asberry v. Biter, No. 1:16-CV-01741-DAD-MJS (PC), 2017 WL 6730489, at *2 3 (E.D. Cal. Dec. 29, 2017), report and recommendation adopted, 2018 WL 1014116 (E.D. Cal. 4 Feb. 21, 2018) (concluding that leave to amend would be futile where there were “no new 5 cognizable claims”). 6 III. MOTION FOR DEFAULT JUDGMENT 7 Relying on Federal Rule of Civil Procedure 55(b), which allows a plaintiff to seek a 8 default judgment against a defendant, Plaintiffs argue that the entry of a default judgment is 9 proper against Defendant Modesto Police Department because it has failed to timely respond to 10 their complaint after having been properly served. (ECF No. 34). However, assuming that 11 Defendant Modesto Police Department was properly served and yet still failed to respond to the 12 complaint, “[a] defendant’s default does not automatically entitle the plaintiff to a court- 13 ordered judgment.”10 PepsiCo, Inc. v. California Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. 14 Cal. 2002). 15 Importantly, as discussed above, Plaintiffs fail to identify any cognizable civil rights 16 claim against Defendant Modesto Police Department and thus this Court lacks subject-matter 17 jurisdiction over the accompanying allegations. Accordingly, default judgment would be 18 improper on this claim. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“To avoid entering a 19 default judgment that can later be successfully attacked as void, a court should determine 20 whether it has the power, i.e., the jurisdiction, to enter the judgment in the first place.”). 21 Moreover, as to the civil RICO claim, the expiration of the four-year limitations period likewise 22 makes entry of a default judgment improper. See Joe Hand Promotions, Inc. v. Tu Minh 23 Nguyen, No. 10-CV-3504-LHK, 2011 WL 1642306, at *2 (N.D. Cal. May 2, 2011) (“A court 24 may deny a motion for entry of default judgment where a statute of limitations defense is 25 apparent on the face of the complaint.”). Accordingly, the Court will recommend that 26

27 10 Even though the Court permitted the Clerk of Court to enter a Clerk’s entry of default under Rule 28 55(a), it specifically declined to address whether service was properly achieved in this case. (ECF No. 32, p. 2). 1 Plaintiffs’ motion for default judgment be denied. 2 IV. CONCLUSION AND RECOMMENDATIONS 3 For the reasons given above, the Court concludes that Plaintiffs fail to establish standing 4 for their civil RICO claim and otherwise fail to state a claim, the civil RICO claim is time- 5 barred, and Plaintiffs fail to allege a civil rights cause of action to invoke the Court’s subject- 6 matter jurisdiction concerning their allegations that Defendant Modesto Police Department has 7 not answered their questions. 8 Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely 9 give leave [to amend] when justice so requires.” However, “[d]ismissal without leave to amend 10 is proper if it is clear that the complaint could not be saved by amendment.” Kendall v. Visa 11 U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). Here, the grounds for dismissal render leave 12 to amend futile. 13 Accordingly, IT IS RECOMMENDED as follows: 14 1. The motion to dismiss (ECF No. 18) of Defendants William Joseph Kalanta, Michael 15 James Kalanta, and Kimberly Jo Hurtt be granted; 16 2. The case against Defendant Modesto Police Department be sua sponte dismissed; 17 3. All claims and Defendants be dismissed with prejudice; 18 4. Plaintiff’s motion for default judgment (ECF No. 34) be denied; 19 5. Defendants’ request for judicial notice be denied as unnecessary (ECF No. 18-2); and 20 6. The Clerk of Court be directed to close this case. 21 These Findings and Recommendations will be submitted to the United States District 22 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 23 twenty-one (21) days after being served with a copy of these Findings and Recommendations, 24 any party may file written objections with the court and serve a copy on all parties.11 Such a

25 11 These findings and recommendations shall service as notice to Plaintiffs that the claims against 26 Defendant Modesto Police Department may sua sponte be dismissed and Plaintiffs shall have the 27 opportunity to be heard by being permitted to file objections within twenty-one days of these findings and recommendations. See Baldhosky v. California, No. 1:14-CV-00166-LJO-MJS (PC), 2018 WL 28 1407103, at *3 (E.D. Cal. Mar. 21, 2018) (noting that a sua sponte dismissal generally requires notice and an opportunity to be heard before the dismissal). 1 || document should be captioned “Objections to Magistrate Judge’s Findings and 2 || Recommendations.” Any reply to the objections shall be served and filed within fourteen (14) 3 || days after service of the objections. The parties are advised that failure to file objections within 4 || the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 5 || 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 IT IS SO ORDERED. 8 Dated: _ November 7, 2022 [sf ey 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21