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Winters v. Jordan

July 19, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is a special motion to strike plaintiffs' Third Amended Complaint pursuant to California Code of Civil Procedure § 425.16 filed by defendant Judy Ford ("Ford"), and a related request for judicial notice. (Dkt. No. 69.) The court submitted this matter without oral argument.*fn1 (Dkt. No. 102.) The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, will: (1) grant Ford's request for judicial notice, and (2) recommend that all of plaintiffs' claims against Ford be dismissed with prejudice.


Plaintiffs' operative complaint, the Third Amended Complaint,*fn3 is a wide-ranging, 25-page complaint that alleges, in eight-point font, 38 claims for relief against 61 defendants. (Dkt. No. 66.) In dismissing plaintiffs' Second Amended Complaint (Dkt. No. 15), which spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs' Third Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil Procedure 8(a), including the requirement that the pleading contain a short and plain statement of the claims alleged instead of recounting all of the evidence and arguments in support of those claims. (Dkt. No. 56 at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.)

The claims against Ford arise out of an underlying internecine family dispute. The Third Amended Complaint alleges that in or around the year 2002, plaintiff Susan Winters's elderly parents, Joe and Virginia Armstrong, encouraged plaintiffs Susan and Brent Winters to sell their house in Illinois and move to Nevada City, California, to live with the Armstrongs. (Third Am. Compl. at 4.) Plaintiffs allege that before plaintiffs returned to California, Joe Armstrong passed away and that Virginia Armstrong eventually transferred properties from the Armstrong Living Trust dated July 29, 1994, to the Virginia Armstrong Living Trust. (Id.)

Plaintiffs allege that Virginia Armstrong took these actions due, in part, to the undue influence of defendants Valerie Logsdon and Michael Armstrong. (Id.)

Relevant here, the relationship between Virginia Armstrong and plaintiffs resulted in proceedings in the Nevada County Superior Court. Plaintiffs allege that Delores Jordan and "adult protective services" unduly influenced Virginia Armstrong to file, on October 15, 2007, a request for a temporary restraining order against plaintiffs Susan and Brent Winters. (Third Am. Compl. at 5.) That petition for a restraining order was denied. (Id.)

In turn, however, plaintiff Susan Winters successfully petitioned the state court for a restraining order against Jordan. (Id.; Req. for Judicial Notice, Ex. 1-3, Dkt. No. 69.) On February 10, 2007, after entry of the restraining order against Jordan, Jordan allegedly trespassed on the plaintiffs' property in violation of the order. (Third Am. Compl. at 5.)

Jordan's alleged action resulted in her being named as a defendant in two actions in the Nevada County Superior Court: (1) a civil contempt hearing, and (2) a misdemeanor criminal complaint. (Id. at 6; Req. for Judicial Notice, Exs. 7, 12.) In short, defendant Ford, who is an attorney, was appointed by the Superior Court to represent Jordan in the civil contempt matter, which was ultimately dismissed. (Req. for Judicial Notice, Exs. 7, 11; Third Am. Compl. at 13.) Jordan also retained Ford to represent her in the criminal matter, which was also eventually dismissed by the district attorney's office. (Req. for Judicial Notice, Ex. 13, 15.) Plaintiffs' Third Amended Complaint does not allege that Ford's involvement in this matter extends beyond her representation of Jordan in the Superior Court actions.

Plaintiffs' Third Amended Complaint alleges the following claims against Ford: abuse of process (claim 6); violation of Fifth and Fourteenth Amendment due process rights (claim 8); trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); violation of RICO statute, 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional infliction of emotional distress (claim 38).

In response to the filing of the Third Amended Complaint, Ford filed an "Anti-SLAPP Special Motion to Strike." (Dkt. No. 69.) Although Ford noticed her motion pursuant to California's Anti-SLAPP statute and Federal Rule of Civil Procedure 12(b)(6), her moving papers present the motion as a special motion to strike. The implications of pursuing only a special motion to strike are discussed below. Ford also filed an answer to the Third Amended Complaint on the same day she filed her special motion to strike. (Dkt. No. 70.)

Despite the court's previous order that plaintiffs file a separate opposition to each pending motion (Dkt. No. 89 at 6), plaintiffs filed a consolidated opposition, which addressed, in very little part, Ford's motion (see Dkt. No. 99). Plaintiffs filed their opposition on January 13, 2010, despite a court-ordered deadline of January 6, 2010. (Compare Dkt. No. 89 with Dkt. No. 99.) Although plaintiffs' opposition was untimely and need not be considered, the undersigned has fully considered that opposition in arriving at the findings and recommendations that follow.


A. Ford's Request for ...

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