Sikking v. Housing of Urban Development (HUD)

• Court: District Court, S.D. California
• Decided: February 1, 2021
• Docket: 3:19-cv-01004
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFF SIKKING, et al. Case No.: 19CV1004-LAB (KSC)

12 Plaintiffs, ORDER GRANTING IN PART 13 v. MOTIONS TO DISMISS; AND

14 RICHARDSON C. GRISWOLD, et ORDER DISMISSING CLAIMS al. 15 FOR LACK OF STANDING Defendants. 16 [DOCKET NUMBERS 30, 32.] 17

18 19 20 Defendant filed two motions (Docket nos. 30, 32) to dismiss the second 21 amended complaint (“SAC”) (Docket no. 27). When Plaintiffs submitted what 22 appeared to be multiple oppositions to each motion, the Court issued an order 23 requiring them to file a single written opposition. (See Docket no. 51.) The Court 24 also pointed out that the oppositions they had filed up to that point were 25 inadequate, and if allowed to stand as Plaintiffs’ opposition, the motions would be 26 granted. Plaintiffs filed a new opposition (Docket no. 59), which the Court accepts 27 as their opposition to the motions to dismiss. The motions are fully briefed and 28 ready for adjudication. 1 The Court also separately ordered Plaintiff Qiyam-Leon Pogue to show 2 cause why his claims should not be dismissed for lack of standing. His standing is 3 addressed separately below. 4 Motions to Dismiss 5 Legal Standards 6 The Court construes pro se pleadings liberally, King v. Atiyeh, 814 F.2d 565, 7 567 (9th Cir.1987), but will not supply facts plaintiffs have not pleaded. See Ivey v. 8 Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). 9 A Rule12(b)(6) motion to dismiss tests the sufficiency of the complaint. 10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under Fed. R. Civ. P. 8(a)(2), 11 only “a short and plain statement of the claim showing that the pleader is entitled 12 to relief,” is required, in order to “give the defendant fair notice of what the . . . claim 13 is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 554–55 (2007). “Factual allegations must be enough to raise a right to relief 15 above the speculative level . . . .” Id. at 555. “[S]ome threshold of plausibility must 16 be crossed at the outset” before a case is permitted to proceed. Id. at 558 (citation 17 omitted). The well-pleaded facts must do more than permit the Court to infer “the 18 mere possibility of conduct”; they must show that the pleader is entitled to relief. 19 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 20 When determining whether a complaint states a claim, the Court accepts all 21 allegations of material fact in the complaint as true and construes them in the light 22 most favorable to the non-moving party. Cedars-Sinai Medical Center v. National 23 League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation 24 omitted). But the Court is “not required to accept as true conclusory allegations 25 which are contradicted by documents referred to in the complaint,” and does “not 26 . . . necessarily assume the truth of legal conclusions merely because they are 27 cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 28 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks omitted). 1 Request for Judicial Notice 2 Defendant Richardson Griswold’s motion (Docket no. 30) includes a request 3 for judicial notice of state and federal court records and documents, which the 4 request authenticates. The documents are all relevant and appropriate for judicial 5 notice. See Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014). 6 Plaintiffs have not opposed this request and do not dispute the documents’ 7 authenticity. 8 The request is GRANTED. The Court takes notice of these records for the 9 purpose of recognizing the judicial acts or events that the orders or filings 10 represent. See Ramirez v. United Airlines, Inc., 416 F. Supp. 2d 792, 795 (N.D. 11 Cal., 2005). 12 The noticed documents show that the State of California brought an action 13 against Jeffrey and Barbara Sikking for public nuisance and violations of the San 14 Diego Municipal Code, and seeking appointment of a receiver. The complaint 15 alleged that since 2015 various code violations on the Sikkings’ property required 16 remediation, and that efforts to correct the violations had been ineffective. 17 Specifically, the house was alleged to be dilapidated, infested with insects, 18 extensively altered by unpermitted and unsafe means, and unsafe to live in. The 19 house was alleged to present a fire hazard, and the outdoor area was alleged to 20 be filled with piles of garbage and discarded belongings such as indoor furniture 21 and carpeting. The property was alleged to be the site of extensive nuisance and 22 violent criminal activity, which from 2014 through early 2017 resulted in the police 23 being called to the property 117 times. 24 According to the complaint, Jeffrey Sikking told a City Attorney Investigator 25 there were only two legitimate tenants on the property, and that he was trying to 26 evict the transients, prostitutes, and drug users who were squatting on the 27 property. The complaint alleges that in 2016, the house was damaged by two 28 separate fires, both of which were determined to be caused by arson. The records 1 show that the state court appointed Griswold as receiver, and issued an order 2 authorizing him to sell the property. 3 Plaintiffs brought two earlier actions in this Court. In case 17cv1091-BAS 4 (JMA), Leon-Qiyam Pogue, Jeff Sikking, and Barbara Sikking sued both Griswold 5 and the San Diego Superior Court. The case was dismissed after Plaintiffs failed 6 to pay the filing fee or comply with Court orders. In case 18cv634-MMA (JMA), Jeff 7 and Barbara Sikking sued Griswold, the San Diego City Attorney, and San Diego 8 Code Enforcement. Griswold moved to dismiss for lack of jurisdiction as well as 9 failure to state a claim. The motion, which Plaintiffs failed to oppose, was granted 10 but the case was not immediately dismissed. Instead, the Court ordered Plaintiffs 11 to show cause why the action should not be dismissed for lack of jurisdiction. When 12 they failed to respond, the case was dismissed for lack of jurisdiction. 13 Subject Matter Jurisdiction 14 The Court is required to raise and address jurisdictional questions, sua 15 sponte if necessary, whenever a doubt arises. Mt. Healthy City School Dist. Bd. of 16 Ed. v. Doyle, 429 U.S. 274, 278 (1977). Subject matter jurisdiction is presumed to 17 be lacking, until the party invoking the Court’s jurisdiction proves otherwise. 18 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 19 The SAC cites various federal statutes in support of some of its eleven 20 claims. These include claim 1 (quiet title), claim 4 (due process and equal 21 protection), claim 5 (perjury and related claims), claim 6 (racketeering based on 22 fraud, conspiracy, and embezzlement), claim 7 (fraud), and claim 8 (unjust 23 enrichment and various torts). The SAC also includes a laundry list of violations 24 of federal law. (SAC, ¶ 2.) The statutes are interwoven among the various claims. 25 The parties are not diverse. The SAC must therefore rely on federal question 26 jurisdiction. However, it is clear almost none of the claims arise under the U.S. 27 Constitution or any provision of federal law. For the bulk of the claims, the SAC 28 must rely on supplemental jurisdiction. But before the Court can exercise 1 supplemental jurisdiction, the SAC must include a substantial federal claim. See 2 Hoeck v. City of Portland, 57 F.3d 781, 785 (9th Cir.1995) (citing 28 U.S.C. § 3 1367(a)). As discussed below, none of the claims — including the federal claims 4 — are adequately pled. 5 Defendants’ briefing raised an additional jurisdictional issue, namely the rule 6 announced in Barton v. Barbour, 104 U.S. 126 (1881). See Freeman v. County of 7 Orange, 669 Fed. Appx. 348, 348 (9th Cir. 2016) (holding that the Barton rule is 8 jurisdictional and applies to receivers appointed by state courts). Plaintiffs’ 9 opposition failed to address this at all. In its earlier order, the Court warned 10 Plaintiffs that their failure to offer an effective opposition would result in the 11 motions’ being granted. The Court therefore finds that it lacks jurisdiction over any 12 claims against Griswold. 13 Abandonment 14 When they amended, Plaintiffs omitted a number of Defendants they had 15 named in their earlier complaints. As a result, claims against those Defendants are 16 no longer part of this action, and those Defendants are no longer parties. See Hal 17 Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 18 1990) (because amended complaint supersedes earlier complaint, defendants not 19 named in the amended complaint are no longer parties). 20 Res Judicata, Collateral Estoppel, and Abstention 21 The Court ordered Defendants to show whether the state court action was 22 still pending, and Defendant Griswold filed a response (Docket no. 100) showing 23 that the state court enforcement action is still pending and is likely to remain so for 24 some time. 25 Defendants raise the defenses of res judicata and collateral estoppel. These 26 both require a final decision on the merits. See Stewart v. U.S. Bancorp, 297 F.3d 27 953, 956 (9th Cir. 2002). See also Myung Choi v. Bd. of Trustees of Calif. State 28 Univ., 2015 WL 13762166, at *4 (C.D. Cal., Feb. 13, 2015) (staying federal action 1 while waiting for a likely claim-preclusive state court order to become final on 2 appeal). The state court action is not yet final. The dismissal in case 17cv1091 was 3 based on failure to pay the filing fee. The decision in case 18cv634-MMA (JMA) 4 that the Court lacked jurisdiction over the Sikkings’ claims is final, though dismissal 5 for lack of jurisdiction is not a decision on the merits for most purposes. See 6 generally Stewart, 297 F.3d 953. Its preclusive effect is limited to issues actually 7 decided, i.e., that the Court had no jurisdiction over the claims raised there. See 8 Iinuma v. Bank of Am., N.A., 2015 WL 1247015, at *3 (D. Haw. Mar. 17, 2015). 9 The only issue decided in case 18cv634 was that the Sikkings’ sole claim, for an 10 injunction prohibiting the sale of their home, had become moot when the home 11 was sold. It has little application here. 12 Abstention, by contrast, applies when the state court action is still pending. 13 Defendants ask the Court to abstain under Younger v. Harris, 401 U.S. 37 (1971), 14 although abstention under Colorado River Water Conservation Dist. v. United 15 States, 424 U.S. 800 (1976) may apply. But identifying which one applies is not 16 crucial. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987) (recognizing 17 that identifying the correct type of abstention is less important than giving force to 18 a “complex of considerations” intended to promote comity). 19 The Supreme Court has made clear that lower courts should not act to 20 restrain either a state court criminal action or a civil action implicating important 21 state interests, if the plaintiff has an adequate remedy at law. Pennzoil, 481 U.S. 22 at 10–11. Here, entertaining Jeff and Barbara Sikking’s claims that seek to 23 relitigate or call into question the state court’s rulings would fall afoul of Younger. 24 To the extent any of those claims survive, the Court would likely be required to 25 stay the case, pending the outcome of the state court enforcement action. See 26 Gilbertson v. Albright, 381 F.3d 965, 982 (9th Cir. 2004) (en banc) (holding that 27 when damages are at issue, court should abstain by deferring judgment, rather 28 than by dismissing the action). 1 Receiver’s Absolute Immunity 2 Defendant Griswold also raised the defense of quasi-judicial immunity. As a 3 court-appointed receiver, he contends, he is absolutely immune for acts taken to 4 carry out the state court’s orders. Plaintiffs have not attempted to show he acted 5 in the clear absence of all jurisdiction, nor could they do so on the facts here. See 6 Mullis v. U.S. Bkrtcy Ct. for Dist. of Nev., 828 F.2d 1385, 1390 (9th Cir. 1987) 7 (holding that a receiver derives his immunity from the judge who appointed him, 8 and loses it only if he acts in the clear absence of all jurisdiction). The state court 9 ordered Griswold to bring the property into compliance, and authorized him to sell 10 it. At most, Plaintiffs claim Griswold acted improperly as he was carrying out those 11 orders. This is not enough to strip him of immunity. See New Alaska Development 12 Corp. v. Guetschow, 869 F.2d 1298, 1304 (9th Cir. 1989) (holding that malice, 13 corrupt motives, or dishonesty do not deprive a court-appointed receiver of 14 absolute immunity). His argument is well taken, see id. at 1302–03 (discussing 15 immunity for court-appointed receivers) and Plaintiffs have not opposed it. 16 Immunity is not jurisdictional. Alta Gold Mining Co. v. Aero-Nautical Leasing 17 Corp., 656 Fed. Appx. 316, 318 (9th Cir., 2016). Nevertheless, it is clear Plaintiffs’ 18 claims against Griswold cannot succeed for this reason as well, and any 19 amendment of claims against him would be futile. 20 Failure to State a Claim 21 The only named Defendants still in the case, besides Griswold, are the City 22 of San Diego and the San Diego City Planning & Development, Code Enforcement 23 Division. The only allegations the SAC makes against these two Defendants are 24 that Griswold used their facilities to carry out his wrongful activities, that they knew 25 what Griswold was doing, and that they could have prevented him from doing it but 26 “sat idly by.” (SAC, ¶¶ 7–8, 24–26.) The complaint never says which facilities were 27 used, or how. It is likely that the SAC means (in part) that Code Enforcement 28 agents were involved in the eviction. But if so, they are shielded by the same quasi- 1 judicial immunity, because they were carrying out the state court’s orders and 2 acting under its authority. 3 While sitting idly by while someone else commits a preventable wrong may 4 be morally wrong, it generally does not create liability — at least, without a showing 5 of some duty to act or some other involvement (such as ratification of the wrongful 6 act). See Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002) (rejecting bystander 7 liability for constitutional violations); Chuman v. Wright, 76 F.3d 292, 294–95 (9th 8 Cir. 1996) (refusing to lump all defendants together for purposes of § 1983 claim, 9 and instead requiring that liability be based on each individual’s own conduct). 10 None of the claims are adequately pled. In particular, those claims with a 11 higher pleading standard (e.g. those premised on fraud or conspiracy to violate 12 civil rights) are wholly conclusory. See Blue Oak Medical Group v. State 13 Compensation Ins. Fund, 809 Fed. Appx. 344, 345 (9th Cir. 2020) (citing Fed. R. 14 Civ. P. 9(b)) (holding that RICO claim premised on mail and wire fraud had to be 15 pled with particularity); Burns v. County of King, 883 F.2d 819, 821 (9th Cir.1989) 16 (requiring that § 1983 claim for conspiracy to violate civil rights must be pled with 17 particularity). The SAC alleges generally that “each Defendant conspired with each 18 other,” without providing any specifics, such as what they agreed to do. (Id., ¶ 14.) 19 the SAC also concludes, without pleading facts, that the underlying foreclosure 20 and eviction were fraudulent and wrongful. 21 Furthermore, it is clear that some of the claims cannot be salvaged by 22 amendment. For example, Plaintiffs attempt to sue Defendants under criminal 23 statutes or other statutes that lack a private right of action. See Grajeda v. Bank 24 of America, 2013 WL 2481548, at *2 (S.D. Cal., June 10, 2013) (collecting cases 25 for the principle that criminal statutes generally do not create private rights of 26 action). 27 The SAC as a whole cites numerous statutes and theories of recovery, 28 without alleging any facts that would show why they apply. Claims 4 through 10 1 consist solely of labels, conclusions, and demands for damages or other relief; and 2 reiterating that the eviction was wrongful, without explaining why. And the caption 3 strings together at least 22 federal statutes, several California statutes, and various 4 other torts or forms of relief (e.g., defamation, libel and slander of title, quiet title, 5 wrongful eviction, fraud, bad faith, trespass, malicious prosecution, bad faith, 6 embezzlement, intentional infliction of emotional distress, stalking, and elder 7 abuse). 8 At the heart of it, however, Plaintiffs are arguing that Griswold, with the City’s 9 complicity, wrongly took the property, evicted them, and sold it. The SAC implies 10 that Griswold somehow deceived the state court into issuing orders permitting him 11 to do all this for his own benefit, without explaining what he did or how any of the 12 other Defendants were involved. 13 Assuming Plaintiffs have one or more viable claims, the Court will likely be 14 required to abstain until the state court action concludes. But at present, they have 15 not pled a substantial federal claim, or any other claim for that matter. There is no 16 reason to stay the case over which the Court lacks jurisdiction. Unless Plaintiffs 17 can plead at least one federal claim, this action must be dismissed. 18 Plaintiff Pogue’s Standing 19 On January 11, the Court ordered Plaintiff Leon-Qiyam Pogue to show why 20 he has standing to bring his claims. The Court is required to raise jurisdictional 21 issues, sua sponte if necessary. Mt. Healthy,429 U.S. at 278. This includes Article 22 III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992). 23 The Court cautioned Pogue that the burden fell on him to show he has 24 standing, see id. at 560, and that until he did, jurisdiction is presumed to be lacking. 25 See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pogue 26 filed a response, which almost entirely fails to address injury-in-fact or traceability 27 under Lujan. 28 / / / 1 Pogue’s response argues vehemently that his rights were violated, and that 2 this by itself is enough to establish standing. His interest in the property appeared 3 to be indirect and speculative, however. The Court’s order pointed out that Pogue 4 said he had been living in a homeless shelter in downtown San Diego for the past 5 seven years. Accepting that as true, it was unclear what interest of his in the 6 Sikkings’ property was invaded. To be sure, the Sikkings’ loss of their home 7 amounts an injury-in-fact for them. But it does not follow that Pogue, whose 8 relationship with the Sikkings appeared to be entirely contractual, did. 9 Pogue alleged he had an agreement with the Sikkings to perform 10 maintenance on the property. In is reply, he explains that the Sikkings agreed to 11 compensate him for this out of rent proceeds or the sale of their home. But his 12 interest in that contract appears to be incidental to any duty Defendants may have 13 owed to the Sikkings, or any interest the Sikkings may have had in owning their 14 property. See In re Gold Strike Heights Homeowners Ass’n, 2018 WL 3405473, at 15 *6 (9th Cir. B.A.P. July 12, 2018) (holding that non-owner’s contractual relationship 16 with property owner did not confer standing to sue for wrongful foreclosure). See 17 also Dang v. Oakland Police Dept., 2014 WL 793613, at *12 (N.D. Cal., Feb. 26, 18 2014) (non-party to promissory note lacked standing to challenge nonjudicial 19 foreclosure). 20 Pogue also fails to show that any of his claimed injuries are fairly traceable 21 to Defendants. The Sikkings’ failure to pay Pogue for work he did on the property, 22 and the death of Pogue’s common law wife in a car accident long after the eviction 23 are not fairly traceable to Defendants. 24 The only point in Pogue’s response addressing anything in the Court’s order 25 to show cause is his claim that he stored tools and other property at the Sikkings’ 26 house, and that at the time of the eviction Griswold would not allow Pogue to enter 27 the house to retrieve them. He also argues that Griswold had Jeff Sikking 28 handcuffed, but that injury is Sikking’s, not Pogue’s. Pogue says Griswold 1 threatened to have him arrested, but does not say he was ever arrested or even 2 detained. Griswold is the only Defendant alleged to have participated in these 3 actions. While loss of his tools would amount to an injury-in-fact, the Court lacks 4 jurisdiction over claims against Griswold, as discussed above. 5 The Court therefore finds he has not met his burden of establishing 6 jurisdiction over any of his claims. Pogue’s claims are DISMISSED WITHOUT 7 PREJUDICE, BUT WITHOUT LEAVE TO AMEND, for lack of jurisdiction. 8 Conclusion and Order 9 For the reasons set forth above, all claims by Plaintiff Pogue are DISMISSED 10 for lack of jurisdiction. The motions to dismiss are GRANTED IN PART. All claims 11 against Defendant Griswold are DISMISSED WITHOUT PREJUDICE BUT 12 WITHOUT LEAVE TO AMEND, for lack of jurisdiction. All other claims are 13 DISMISSED for failure to state a claim and failure to invoke the Court’s jurisdiction. 14 Abstention is likely appropriate. However, Plaintiffs cannot plead at least one 15 substantial federal claim, this action can be dismissed without the need for 16 abstention. 17 No later than 28 calendar days from the date this order is issued, 18 Plaintiffs may seek leave to file a third amended complaint. They should file an ex 19 parte motion for leave to amend that complies fully with Civil Local Rule 15. An ex 20 parte motion that does not comply fully with this rule may be rejected for filing, 21 which could result in dismissal of the case. 22 The proposed third amended complaint must correct the defects this order 23 has identified. It must not include claims against Griswold, Chase Bank, or any of 24 the previously-dismissed Defendants. 25 Defendants may file an opposition within 21 calendar days of the date a 26 motion for leave to amend is filed. 27 / / / 28 / / / 1 If Plaintiffs fail to show that they can successfully amend their complaint or 2 ||fail to file an ex parte motion within in the time permitted, this action may be 3 || dismissed without further notice to them. 4 5 IT IS SO ORDERED. 6 || Dated: February 1, 2021 7 ( Lif 4. (By Wy 8 Honorable Larry Alan Burns 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28