Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

PETTY v. PETTY

United States District Court, Northern District of California


May 27, 2003

BENJAMIN PETTY, PLAINTIFF,
v.
MAE PETTY, WILLIAM BACHRACH, JACQUELINE TABER, MARK EISENBERG, BONNIE LEWMAN, ALAMEDA COUNTY AND THE STATE BAR OF CALIFORNIA, DEFENDANTS.

The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

Plaintiffs complaint has been dismissed without leave to amend. Accordingly, judgment is entered in favor of defendants and against plaintiff Benjamin Petty.

IT IS SO ORDERED AND ADJUDGED.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND DENYING PLAINTIFF'S REQUEST FOR LEAVE TO AMEND
On May 23, 2003 the Court heard argument on defendants' motions to dismiss. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANT defendants' motions to dismiss and DENIES plaintiffs request for leave to amend.

BACKGROUND

Plaintiff filed this action on February 7, 2003. The causes of action alleged by plaintiff from the litigation of his marital dissolution in 1979 and 1980.

The first cause of action for fraud and deceit is alleged against Mae Petty, plaintiffs ex-wife and William Bachrach, her attorney in the divorce proceedings. Plaintiff alleges that Petty and Bachrach fraudulently induced William Petty to allow May Petty to return to the marital household at 1901 Warner Way after the two had separated.

The second cause of action for violation of procedural due process is against Bachrach, Jacqueline Taber (the family court judge in the divorce proceedings), Alameda County (as the county employing Taber), and the California State Bar Association (the correct title for which is the State Bar of California, as the entity which licensed Bachrach to practice law).

The third cause of action for violation of procedural due process is against Eisenberg (an attorney for defendant), Lewman (another family court judge), Alameda County (the County in which Lewman presides), and the State Bar of California (which licensed Eisenberg to practice law).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).

In answering this question, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).

DISCUSSION

1. Defendant State Bar of California

Plaintiffs complaint alleges causes of action against the State Bar of California based on the actions of two attorneys licensed in California, Bachrach and Eisenberg. Because the private attorney defendants were not acting as state actors and plaintiff has not stated any independent cause of action against the State Bar of California, plaintiffs' action against the State Bar is dismissed. Plaintiff does not claim that any actions were taken against him by the State Bar.

To the extent the State Bar is sued under the theory that the Bar Association is responsible for the actions of its members, and that the private attorneys were state actors acting on behalf of the Bar, this cause of action fails. State action is not implicated by membership in the Bar Association. See Pol Co. v. Dodson, 454 U.S. 312, 319 (lawyers are not officials of the state by virtue of being licensed to practice law by the state). In any event, even if plaintiff were to allege an independent cause of action against the State Bar, the Bar would be subject to sovereign immunity. The Ninth Circuit has held that the State Bar is a state agency for purposes of sovereign immunity. .Hirsh v. Justices of the Supreme Court, 67 F.3d 708, 715 (9th Cir. 1985).

For these reasons, the claims against the State Bar of California are dismissed and leave to amend is denied.

2. Defendant William Bachrach

Defendant Bachrach is described by plaintiff as Mae Petty's lawyer during the divorce proceedings, and he is apparently a resident of California. Defendant Bachrach requests that this Court take judicial notice of certain documents, the subject matter of which is referenced by plaintiff in his complaint, to establish the dates of the actions that are the subject of plaintiffs complaint. These documents concern the dissolution of plaintiff's marriage to Mae Petty. See Bachrach's Request for Judicial Notice of 37 pages of douments from Alameda County Superior Court. This Court may take judicial notice of documents in a Rule 12(b)(6) motion where those documents are "central to a plaintiff's claim" and where those documents, while not physically attached to plaintiff's complaint, are referenced in the complaint. Where judicial notice is taken for this limited purpose, such notice does not convert the motion to dismiss to a summary judgment motion. See Branch v. Tunnell, 14 F.3d 449, 453-545 (9th Cir. 1994) ("we hold that documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in Ruling on a 12(b) motion to dismiss.").*fn1

Plaintiff has alleged fraud, deceit and violation of procedural due process against Bachrach. As to the fraud and deceit claims, which arise under state law, no federal jurisdiction is alleged and none appears from the facts of the case. In addition, as Bachrach argues, plaintiff's claims are barred by the applicable statute of limitations. Cal. Code Civ. Proc. § 338 provides that fraud actions are subject to a three year statute of limitations. The substance of the fraud and deceit allegations against Bachrach are that Bachrach conspired with Petty to enable Petty to move back to the marital household under "fraudulent and false pretenses." (Complaint at 3:3-5). The petition for dissolution was filed on March 14,1979 and the residence at 1901 Warner Way was divided between the parties on July 19, 1979. The Court has taken judicial notice of that petition as submitted by Bachrach (exh. A-030) (these are all documents filed with the court by Mae Petty in her divorce proceeding in Alameda County). Accordingly, the alleged harm must have occurred prior to 1979 and is far beyond the bounds of the applicable three year statute of limitations. Plaintiff's fraud and conspiracy claims are accordingly dismissed.

Plaintiff also alleges due process claims against Bachrach. Constitutional claims may only be maintained against state actors. Bachrach is a private attorney. Accordingly, plaintiff's procedural due process claim against Bachrach is dismissed. See West v. Atkins, 487 U.S. 42, 28 (1988) (to state a claim under § 1983 for a violation of the constitution or other federal law a plaintiff, the person against whom the claim has been alleged must have been acting under color of state law). Even if Bachrach were a state actor, plaintiffs claims would be barred under the applicable statute of limitations. For § 1983 actions that statute is Cal. Code of Civ. Proc. § 340, which now provides up to two years from the date of injury for plaintiffs to file suit. Accordingly, Bachrach's motion to dismiss is GRANTED. As there is no federal jurisdiction, leave to amend is denied.

3. Defendant Mark Eisenberg

Plaintiff's third cause of action for violation of procedural due process is against defendant Mark Eisenberg. Plaintiff states, "Defendant Eisenberg obtained his default judgment against plaintiff with no notice or opportunity to be heard." Compl. at 5:9-10. Regardless of the facts underpinning this cause of action, it fails. Mark Eisenberg, a private attorney, is not a state actor and was not acting under color of state law. See West v. Atkins, 487 U.S. 42, 28 (1988) (to state a claim under § 1983 for a violation of the constitution or other federal law a plaintiff, the person against whom the claim has been alleged must have been acting under color of state law). Even if Eisenberg were a state actor, plaintiffs claims would be barred under the applicable statute of limitations. For § 1983 actions that statute is Cal. Code of Civ. Proc. § 340, which now provides up to two years from the date of injury for plaintiffs to file suit. Accordingly, Eisenberg's motion to dismiss is GRANTED. As there is no federal jurisdiction, leave to amend is denied.

4. Defendant Mae Petty

Plaintiff alleges fraud and deceit against Mae Petty, who is apparently a resident of California. The events about which plaintiff complains concern alleged harm that arose in 1979 and 1980 when Mae Petty moved back to the marital household and then later filed dissolution proceedings. The Court has taken judicial notice of documents establishing that time frame. Accordingly, plaintiffs claims against Mae Petty are time-barred under California Codes of Civil Procedure § 338. Further, this court does not have jurisdiction over the family law matters alleged in plaintiffs complaint, even if the complaint were timely.

The "domestic relations exception" to federal court jurisdiction divests the court of jurisdiction over those cases that would "deeply involve" the court in adjudicating family law matters. Thompson v. Thompson, 798 F.2d 1547,1558 (9th Cir. 1986). In keeping with this principle, "federal courts must decline jurisdiction of cases concerning domestic relations when the primary issue concerns the status of parent and child or husband and wife." Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir. 1968); The basis of plaintiff s complaint appears to be the distribution of marital property, chiefly the parties' joint, shared residence. Accordingly, because the plaintiffs complaint against Mae Petty is time-barred and because this court does not have jurisdiction over this matter, plaintiff's complaint against defendant Mae Petty is dismissed and leave to amend is denied.

5. Defendants Judges Lewman and Taber

The claims against Judges Lewman and Taber are barred by 11th Amendment immunity. The claims are also barred by the domestic relations exception. Buechhold v. Ortiz, 401 F.2d 371,372 (9th Cir. 1968). Eleventh amendment immunity applies to officials of the state who are sued in their official capacities because "an official-capacity suit, in all respects other than name, is to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). Further state officials acting within their official capacity are not "persons" within the meaning of § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66-67 (1989). Further this lawsuit is barred by the doctrine of judicial immunity which grants judges immunity from lawsuits arising out of the exercise of their judicial functions. Mireles v. Waco, 502 U.S. 9 (1991). Accordingly, plaintiff's claims against Judge Lewman and Traber are dismissed and leave to amend is denied.

6. Defendant Alameda County

Plaintiff sues Alameda County on the theory that the County is liable for the actions of its judges. The County responds that the judges are not municipal actors, but rather are state actors, and thus plaintiff may not maintain a claim against the County for the judges' actions. Furthermore, under the Monell doctrine, defendant Alameda County argues that even if the judges were acting on behalf of the County, the County cannot be subject to respondeat superior liability under § 1983. See Monell Dep't of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978). Plaintiffs complaint against defendant Alameda County is dismissed for both of these reasons. Judges do not act pursuant to municipal policy and thus Alameda County is not an appropriate defendant. Further, the County is not subject to respondeat superior liability. Accordingly, plaintiffs claims against Alameda County are dismissed and leave to amend is denied.

7. Plaintiff's request for leave to amend

Plaintiff requested at oral argument and in several of his opposition briefs that the Court grant leave to amend to plead additional allegations. Plaintiff states in several of his opposition briefs that his knowledge about the facts that are the basis for this request was gleaned from defendant Eisenberg's answer to plaintiff's complaint, filed in March 2003.

Defendant Eisenberg's answer states the following: Mae and Benjamin Petty were awarded the property at 1901 Warner Way equally through dissolution proceedings in 1979. In January 31, 1996, Mae Petty received an IRS notice of intent to seize and sell the property, based on Benjamin Petty's nonpayment of past due internal revenue taxes totaling over $39,000. In March, 2003, Mae Petty filed a complaint against Benjamin Petty for contribution in the Alameda County Superior Court; service on Benjamin Petty, via substituted service, was effected on June 19, 1996. On August 1, 1996, the property was seized by the IRS. Benjamin Petty did not file an answer or other responsive pleading, and on September 3, 1996 a default was entered against him in the contribution action. Benjamin Petty did appear at a case management conference in the contribution action on September 5, 1996; the court did not enter a default judgment but rather put the matter over for a further case management conference in December. On October 1, 1996 the property was put up for auction by the IRS; Mae Petty bought the property from the IRS at auction for $16,824.64. On December 9, 1996, the Alameda County Superior Court entered a default judgment in the contribution action in favor of Mae Petty and against Benjamin Petty in the amount of .$46,226.

Benjamin Petty argues in his opposition papers that he first learned of a "fraud" which was committed against him by the defendants in March 2003 from defendant Eisenberg's answer. See Petty's Opp. to Taber and & Sabraw, "The foreclosure and sale were discovered in March 2003." Id. at 3:10-11. Plaintiff apparently seeks leave to amend to plead a cause of action for "extrinsic fraud." "Extrinsic fraud was used throughout the above incidents by all Defendants to deprive Plaintiff of his due process rights." Id. at 3:18-19.

Fraud is a state law cause of action. The only basis on which this court may hear state law causes of action in the absence of issues of federal law is diversity jurisdiction, pursuant to 28 U.S.C. § 1332. The parties are non-diverse because they are all citizens of the state of California. Accordingly, there is no diversity jurisdiction. While plaintiff may bring his state law claims in state court, this Court does not have jurisdiction to hear plaintiffs state law claims. Because plaintiffs claims against the judges, the State Bar and the County of Alameda are barred for the reasons stated herein, and plaintiffs claims against all defendants are barred for lack of diversity jurisdiction, leave to amend is DENIED.

CONCLUSION

For the foregoing reasons, the defendants' motions to dismiss are GRANTED. Plaintiffs' complaint is dismissed with prejudice. Leave to amend is DENIED. [Bachrach's motion to dismiss (docket #13); Lewman & Taber's motion to dismiss (docket #17); Mae Petty's motion to dismiss (docket #21); Alameda County's motion to dismiss (docket #48); State Bar Ass'n of California's Motion to Dismiss (docket #20)].

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.