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RICOTTA v. CALIFORNIA

April 15, 1998

THOMAS DANIEL RICOTTA, Plaintiff,
v.
STATE OF CALIFORNIA et al., Defendant.



The opinion of the court was delivered by: JONES

ORDER: (1) DISMISSING WITH PREJUDICE PLAINTIFF'S FIRST AND THIRD CAUSES OF ACTION AS TO ALL DEFENDANTS, AND (2) DISMISSING WITH PREJUDICE PLAINTIFF'S SECOND CAUSE OF ACTION AS TO ALL DEFENDANTS, AND (3) DISMISSING WITH PREJUDICE PLAINTIFF'S FOURTH CAUSE OF ACTION AS TO ALL DEFENDANTS, AND (4) GRANTING DEFENDANT WEEDON'S MOTION TO SET ASIDE THE ENTRY OF DEFAULT, AND (5) DENYING THE INDIVIDUAL DEFENDANTS' REQUEST FOR HOLDING PLAINTIFF AND/OR LOIS BROWN KELLY IN CONTEMPT OF COURT, AND (6) DIRECTING THE CLERK OF THE COURT TO CLOSE THIS CASE FILE IN ITS ENTIRETY

 On November 5, 1997, Thomas Ricotta ("Plaintiff") filed an Amended Complaint ("Am. Compl.") alleging the following four causes of action: 1) violations of his civil rights under 42 U.S.C. § 1983, 2) violations of the Racketeer Influenced and Corrupt Organizations Act, ("RICO") 18 U.S.C. § 1962 (c), 3) conspiracy to interfere with his civil rights pursuant to 18 U.S.C. §§ 1985 and 1986, and 4) a cause of action for equitable, injunctive, declaratory relief and restitution. In his Amended Complaint Plaintiff names eighteen Defendants who allegedly harmed him during dissolution proceedings initiated by his former wife on April 30, 1991, and culminated in September of 1996. For the purpose of this Order the Court has categorized the eighteen Defendants into four separate groups identified as: 1) the "County," *fn1" 2) the "State," *fn2" 3) the "Bar" *fn3" and, 4) the "Individuals." *fn4"

 This matter comes before the Court on all Defendants' (except Fred Weedon) motions to dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(1) & 12(b)(6). The Defendants have all filed various notices of motions, memorandums of points and authorities, and notices of joinder in each others motions and memorandums. Subsequent to the filing of the motions to dismiss, Fred Weedon ("Weedon") filed a motion to set aside the entry of default. Weedon's motion is also addressed in this Order.

 Additionally, the Individuals filed an ex parte application for an order to show cause why Plaintiff and his alleged ghost-writing attorney, Lois Brown Kelly, should not be held in contempt of court. On February 2, 1998, this Court issued an Order to Show Cause and has received memorandums of points and authorities, and declarations from defense counsel, Plaintiff, and the claimed ghost-writing attorney Lois Brown Kelly. The request for a finding of contempt is also analyzed in this Order.

 On Tuesday, February 16, 1998, the Court heard oral argument from all parties on all of the above mentioned motions, except for Weedon's request to set aside the entry of default. *fn5" Subsequently, this Court took the matters under submission, and on February 20, 1998, issued an order requesting supplemental briefing from the County and Plaintiff to explain what Judgment Plaintiff claimed Commissioner Etta C. Gillivan allegedly signed which resulted in her inclusion in his Amended Complaint.

 For the reasons set forth below this Court:

 1) DISMISSES with PREJUDICE Plaintiff's first and third causes of action as to all Defendants for lack of subject matter jurisdiction. *fn6"

 2) DISMISSES with PREJUDICE Plaintiff's second cause of action for RICO violations as to all Defendants for failure to state a claim. *fn7"

 3) DISMISSES with PREJUDICE Plaintiff's fourth cause of action for equitable relief as to all Defendants because the requested relief is beyond the Court's subject matter jurisdiction.

 4) GRANTS Defendant Weedon's request to set aside the entry of default.

 5) DENIES the Individual Defendants' request for finding Plaintiff and Lois Brown Kelly in contempt of court, and

 6) DIRECTS the Clerk of the Court to close this case file in its entirety.

 I. Introduction

 The facts and circumstances of this case arise from marriage dissolution proceedings between Plaintiff and his former wife Ellen Ricotta. On April 30, 1991, Ellen Ricotta filed a petition for dissolution against Plaintiff in San Diego County Superior Court. (Am. Compl. P 2). The dissolution trial commenced on January 24, 1992, at which time Plaintiff was represented by counsel. (Am. Compl. P 10). On March 19, 1992, Judge William Howatt, Jr., issued a Statement of Decision. (Am. Compl. P 16). Plaintiff requested several clarification hearings which resulted in a second trial in February of 1993. (County's Mem. at 4). Since that time, there have been numerous motions and hearings, four separate appeals brought by Plaintiff, and several complaints filed by Plaintiff to the Commission on Judicial Performance and the California State Bar. (Am. Compl. P 5). As a result of the trials, hearings, and rehearings, Ellen Ricotta was awarded certain amounts of money and property from the marital estate. (Individuals' Mem. at 2). In addition, Plaintiff was assessed portions of Ellen Ricotta's attorneys' fees. (Individuals' Mem. at 2).

 On September 15, 1997, Plaintiff filed his original complaint. On October 15, 1997, Plaintiff filed a RICO case statement. On November 5, 1997, Plaintiff filed an Amended Complaint naming Commissioner Etta C. Gillivan as a Defendant. The essence of Plaintiff's lawsuit is his contention that the Judges, Commissioner, attorneys, and individuals involved in the marriage dissolution proceedings conspired to deprive him of his rights under the First, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments of the United States Constitution. Accordingly, Plaintiff wants this Court to award damages in the amount of the judgments plus interest on all monies, "he wrongfully was compelled to pay in satisfaction of judgments." (Am. Compl. P 113). Plaintiff also wants damages for the loss of his business reputation and credit status that prevented him from earning a livelihood. Plaintiff requests compensatory and punitive damages. (Am. Compl. P 115).

 II. Overview Of The Amended Complaint

 The Court spent considerable time reading and re-reading Plaintiff's Amended Complaint. At the outset the Court must note that it found the Amended Complaint very difficult to follow. More importantly, the Amended Complaint is filled with conclusory allegations. Plaintiff alleges that "the State Law upon which the Superior Court has (sic) seized and relinquished and will relinquish in the future is invalid, in that the law was used by a CRIMINAL ENTERPRISE, Racketeer influenced and corrupt organization act (CIVIL RICO) and a violation of plaintiff's Constitutional Rights." (Am. Compl. at 2). In support of this argument, Plaintiff summarizes a trilogy of events from the dissolution proceedings that allegedly substantiate the causes of action. For instance, Plaintiff asserts that on January 24, 1992, the first day of trial, Ellen Ricotta's attorney, Defendant Paul E. Gavin ("Gavin"), "came up to [Plaintiff] and his attorney William Pabarcus and stated 'No (curse word) San Diego attorney is going to come into my court and get any (curse word) thing.' In seven years of litigation his words have rung true. This attempt of intimidation amounts to extortion of a criminal act by a criminal enterprise." (Am. Compl. P 10). Plaintiff continues to accuse Defendant Gavin of wrongdoing by stating that:

 
[Gavin] has a history of milking a case like this one which he has called, "Cash Cow." When there is an estate of $ 1,000,000 he feels he has a right to 10%, and he has a history of getting $ 100,000 dollars in fees out of case. Then he runs just as he did in this case. Attorney Gavin also bragged how he never will compromise, unless, his client makes him. This is a statement he has made to other attorneys. He uses this symbiotic relationship with the judges to get his ill gotten gains to wine and dine judges to get personal favors to in rich his criminal enterprise.

 (Am. Compl. P 93).

 Plaintiff makes a series of allegations against various judges that presided over his dissolution proceedings. For instance, Plaintiff proclaims that:

 
when [Plaintiff] first entered Judge Howatt's courtroom on January 24, 1992, his clerk Karen Knard stated that the Judge hates family law and she hates family law and neither wanted any part of this case. [Plaintiff] could hear Judge Howatt's speaking to someone in his chambers. [Plaintiff] heard Judge Howatt mention his name and talking about the case. From the judge's opening statement [Plaintiff] could tell he was already prejudiced.

 (Am. Compl. P 11).

 Plaintiff then accuses Judge Thomas R. Murphy of bribery by stating that "Judge Murphy refused to rule and then offered [Old Republic Title Company] a bribe . . . of $ 10,000 to close the escrow." (Am. Compl. P 56).

 Next, Plaintiff submits a request to the Court to take judicial notice that:

 
the San Diego County Superior Court is corrupt by the Federal Convictions of Presiding Judge Greer, and Superior Court Judge Malkus and Superior Court Judge Adams. This Federal Case # 96-698 et. al. is the same kind Modis Aperandi of Attorneys bribing judges to get exorbitant legal fees, and gain advantage by this illegal act, but just different players . . . .
 
(90) The history of corruption in the San Diego County Courts, and chain of bias all the way to the Appeals court is the same kind of corruption as in this case, [Plaintiff] request a judge from outside San Diego County hear this case. [Plaintiff] request that the same rights afforded to Judges Greer, Malkus, and Adams be afforded him, to have unbiased judge.
 
(91) The plaintiff requests the court to take Judicial Notice of United States Supreme Court Justice Brandies statement in Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944, 48 S. Ct. 564 (1928), "crime is contagious. If the government become a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

 (Am. Compl. at P 89-91).

 A. First Cause Of Action

 In his first cause of action Plaintiff alleges a violation of civil rights pursuant to 42 U.S.C. § 1983. Plaintiff states that from the period of April 1991, to the present, the named Defendants through their conduct and under color of state law conspired together to deprive him of a fair and impartial trial and violated his rights under the First, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments of the United States Constitution. (Am. Compl. P 97). Plaintiff further claims that the state proceedings involving the dissolution of his marriage were motivated by greed, bad faith, harassment, intimidation, and willful criminal violations under State and Federal law. (Am. Compl. P 97). Plaintiff believes federal intervention is proper because of the sale of marital property conducted within Washington State. (Am. Compl. P 98).

 B. Second Cause Of Action

 Plaintiff's second cause of action alleges civil RICO violations pursuant to 18 U.S.C. §§ 1961(1)& (5), and 18 U.S.C. §§ 1962 et al. Plaintiff asserts that the requisite acts of racketeering include, but are not limited to, conduct by Defendant Gavin in his capacity as both an attorney and Judge Pro Tem. (Am. Compl. P 100). Plaintiff states that all Defendants associated with the conduct of Defendant Gavin, and with knowledge either directly or indirectly engaged in activities that affected both interstate and intrastate commerce. Such activity resulted in the conversion, undue influence, and bribery of California Superior Court Judges. (Am. Compl. P 100). Plaintiff then claims that this "criminal enterprise caused [Defendants] to fail in their duty to enforce the Oath of Office and Judicial Canons of Ethics and the laws of the State of California, obstruction of a fair administration of justice, conversion, bribery, grand theft, perjury, and conspiracy." (Am. Compl. P 100).

 Plaintiff contends that this criminal enterprise violated:

 
(1) criminal statutes of the California Penal Code regarding Grand Theft P.C. 487, Conspiracy P.C. 182, Conspiracy to Falsify Public Records P.C. 134, Falsifying a Public Document P.C. 115, False Affidavit P.C. 127, Perjury P.C. 127, Subornation of Perjury P.C. 118(a); (2) Government Code violations of False Filing of Public Record sec 6200 and 620; and 3) Federal violations of civil and constitutional rights under the Fifth and Fourteenth Amendments, right to due process, right to fair and impartial tribunal, right to attorney, right to cross-examine witnesses, right to be heard in court of law, Mail Fraud 18 U.S.C. § 1341, and Wire Fraud.

 (Am. Compl. P 102).

 C. Third Cause Of Action

 In his third cause of action Plaintiff alleges civil rights violations pursuant to 42 U.S.C §§ 1985 and 1986. Plaintiff asserts that, "[a] person or Class of persons should not be discriminated against because they can not afford an attorney or as in the plaintiff's case not allowed to have an attorney by the court and must act in propria persona against an attorney that is a friend of the court and before the judge every day." (Am. Compl. P 103). Plaintiff states that he was not provided equal access or equal protection of the court and that, "this bias resulted in invidiously discriminatory conduct in violation of the Constitution." (Am. Compl. P 103).

 Plaintiff further claims that there is an "unwritten policy in the San Diego Superior Court of discrimination against any person filing a court action in propria persona." (Am. Compl. P 104). In support of this assertion, Plaintiff claims to have witnessed judges berate unrepresented persons in open court with statements like," 'who do [unrepresented persons] think they are to think they can represent themselves when I went to seven years of schooling and they think they are an equal.'" (Am. Compl. P 105). Identified by name is Judge William Howatt Jr., who Plaintiff alleges chided him after he supposedly did a "lousy" job representing himself. Also named is Judge Gerald L. Barry Jr., whom Plaintiff claims threatened him with arrest while he represented himself in a pro se capacity. (Am. Compl. P 105). Plaintiff further alleged that Judge Thomas R. Murphy did not allow him to represent himself at a hearing. (Am. Compl. P 109). Plaintiff claims that Judge Murphy had him removed from the courtroom when he asked, "Why am I held to standards of an attorney and the attorneys are not held to any standards in the North County Court?" (Am. Compl. P 109).

 D. Fourth Cause Of Action

 Plaintiff's fourth cause of action alleges that had the Defendants not engaged in the wrongful acts Plaintiff would have likely prevailed in the dissolution proceedings and would have received one half of his estate worth $ 925,000. Plaintiff, demands a "declaration that all judgments are void, receive full restitution of the amounts paid to satisfy the judgments, and recover attorneys fees and other litigation expenses incurred in the corrupt trials." (Am. Compl. P 110).

 E. Remedies

 Plaintiff seeks damages, "in the amount of judgments, together with interest thereon, to compensate plaintiff for; all monies he wrongfully has compelled to pay in satisfaction of judgments, and lose (sic) of property, and defendant's conduct which has severely damages (sic) plaintiff's business reputation, and credit status and prevented him from earning a livelihood. Including his ability to earn future livelihood." (Am. Compl. P 113).

 Additionally, Plaintiff wants a declaration that all proceedings in the State Courts of California and the State Courts of Washington are "null, void and of no effect." (Am. Compl. P 115(B) ). Plaintiff also requests an award of compensatory and punitive damages. Plaintiff asks that the Court establish an independent investigative agency to "prosecute government corruption and corruption in our courts." (Am. Compl. P 115(M)). Plaintiff also wants that the Court to order the State of California to fund an investigative body that will oversee the Commission on Judicial Performance and the State Bar of California. (Am. Compl. P 115(N)).

 III. Legal Standards For Dismissal

 Defendants argue that pursuant to FED. R. CIV. P. 12(b)(6), this Court should dismiss Plaintiff's second cause of action for violations of RICO. Under FED. R. CIV. P. 12(b)(6), a defendant may bring a motion to dismiss a plaintiffs complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). This motion tests whether the allegations of the Complaint satisfy the requirement of FED. R. CIV. P. 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). Although there need not be an elaborate recitation of every fact a plaintiff may rely upon at trial, in order to withstand a motion to dismiss, there must be a finding that the Complaint gives the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 A dismissal is warranted where "it appears beyond doubt that the Plaintiff can prove no set of facts which would entitle him [her] to relief." Id. at 45-46. The Complaint should be liberally construed in favor of the Plaintiff, and its factual allegations taken as true. Oscar v. University Students Co-Operative Ass'n, 965 F.2d 783, 785 (9th Cir. 1992), cert. denied, 506 U.S. 1020, 121 L. Ed. 2d 581, 113 S. Ct. 655 (1992).

 Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal interpretation to a pro se civil rights complaint, the Court may not, however, supply essential elements of a claim that were not initially pled. "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Nevertheless, the Court must give a pro se litigant leave to amend the Complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).

 Defendants also argue that this Court should dismiss Plaintiff's complaint for lack of subject matter jurisdiction. Specifically, the Defendants assert that the first and third causes of action are barred by the statute of limitations. Additionally, Defendants believe that the Court does not have subject matter jurisdiction to afford Plaintiff's requested relief in his fourth cause of action. Under Rule 12(b)(1), a defendant may seek to dismiss a complaint for "lack of jurisdiction over the subject matter." FED. R. CIV. P. 12(b)(1). When considering a 12(b)(1) motion to dismiss, the district court "is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes when necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). "In such circumstances, 'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Id. (quoting Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979)).

 IV. Parties For Whom The Entire Complaint Must Be Dismissed With Prejudice

 There are several Defendants who are entitled to immunity from suit in federal court. Accordingly, as discussed below the Amended Complaint must be dismissed with prejudice as to Defendants: 1) Howatt, 2) Murphy, 3) Wagner, 4) Barry, 5) Maino, 6) Meyer, 7) Gillivan, 8) the State of California, 9) the Commission on Judicial Performance, and 10) the California State Bar.

 A. The Judges: Howatt, Murphy, Wagner, Barry, Maino

 Judges and those performing judge-like functions are absolutely free from liability for damages for acts performed in their official capacities. Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc). Judicial immunity applies no matter how "erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Ashelman, 793 F.2d at 1074 (citing Cleavinger v. Saxner, 474 U.S. 193, 88 L. Ed. 2d 507, 106 S. Ct. 496 (1985) (quotations omitted)). Judicial immunity is not affected "by the motives with which their [Judges] judicial acts are performed." 793 F.2d at 1077. Thus, intent does not play a role in the immunity analysis. Id. "A judge will not be deprived of immunity because the action he [she] took was in error, was done maliciously, or was in excess of his [her] authority; rather he [she] will be subject to liability only when he [she] has acted in the clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 356-57, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978) (quotations omitted). Further, "allegations that a conspiracy produced a certain decision should no more pierce the actor's immunity than allegations of bad faith, personal interest or outright malevolence." 793 F.2d at 1078 (citing Holloway v. Walker, 765 F.2d 517, 523 (5th Cir. 1985). The public policy that underlies judicial immunity is the furtherance of independent and disinterested judicial decision making. Ashelman, 793 F.2d at 1078. To effectuate this policy the Ninth Circuit broadly construes the scope of judicial immunity, which applies even if there are allegations that a judicial decision resulted from a bribe or a conspiracy. Id.

 The immunity, however, is not absolute. A Judge is not immune if a plaintiff seeks prospective injunctive relief. Pulliam v. Allen, 466 U.S. 522, 541-41, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984). Nor is a Judge immune if he or she acts in clear absence of all jurisdiction or performs an act that is not judicial in nature. Ashelman, 793 F.2d at 1075. An act is judicial in nature if it is a function normally performed by a judge. Id. To determine if the judge acted with jurisdiction, courts ...


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